Posted onAugust 16, 2019|Comments Off on Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died
A U.S. citizen may file a Form I-130 immigrant petition for his or her spouse in the immediate relatives category. If the citizen dies, the widow(er) may still seek permanent residence in the United States under section 201(b)(2)(A)(i) of the Immigration & Nationality Act, when certain conditions are met.
Who Qualifies for Widow(er) Benefits Under INA 201(b)(2)(A)(i)?
U.S. immigration statute permits widow(er)s of U.S. citizens to be classified as immediate relatives and continue the Immigrant Visa or Adjustment to Permanent Resident Status application process if they:
Were legally married to a U.S. citizen and not divorced or legally separated from the U.S. citizen at the time of death
File a Form I-360 self-petition within two years of the U.S. citizen spouse’s death or have a pending or approved Form I-130 filed by the U.S. citizen spouse prior to death, which will be automatically converted to a Form I-360 petition
Show they entered into the marriage in good faith and not solely for immigration benefits
Are admissible to the United States
Are not remarried before they receive the green card or immigrant visa (NOTE: If there is a remarriage, the applicant may still be able able to pursue section 204(l) relief if he or she was residing in the United States when the petitioner died and continues to reside in the United States).
How to Apply for Widow(er) Benefits
If there is a pending or approved Form I-130 petition, the widow(er) must notify USCIS of the U.S. citizen’s death. The agency will then automatically convert the I-130 to an I-360 self-petition. If there is no pending or approved I-130 at the time of death, the widow(er) must submit the Form I-360 self-petition to USCIS within two years of the U.S. citizen’s death.
Widow(er)s in the United States may file a Form I-485, application to adjustment to permanent resident status, either at the same time the I-360 is filed or after the I-360 is filed, whether it is pending or approved. If an I-485 application was already submitted based on a pending or approved I-130 filed by the deceased spouse, there is no need to file a new one.
A widow(er) who is living abroad may go through the I-360 approval or I-130/I-360 conversion process to apply for an immigrant visa at the U.S. Consulate overseas.
Admissibility Requirement
A Form I-864, Affidavit of Support, is not required for widow(er)s to establish they will not become a public charge under INA § 212(a)(4). The applicant instead claims an exemption from filing the Affidavit of Support with the Immigrant Visa request or Adjustment of Status application.
Widow(ers) are not exempt from the 3/10 year bars to re-entry under INA 212(a)(9)(B)(i) if they accrue more than 180 days of unlawful presence in the U.S. and depart for consular processing of the immigrant visa. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) do not have. When possible, widow(er)s should apply for Adjustment of Status within the U.S. and avoid triggering the 3/10 year bar by departing the U.S.
Unmarried children under the age of 21 may be included in the immigrant petition as derivative beneficiaries. As “immediate relatives,” derivative children qualify for benefits under the Child Status Protection Act (CSPA), which “freezes” their ages as of the filing date of the Form I-130 or Form I-360, whichever is applicable. CSPA protects them from aging out if they turn age 21 prior to their being granted a green card or immigrant visa. Still, they must meet any other eligibility criteria or filing requirements.
Consult a Qualified U.S. Immigration Attorney
A qualified U.S. immigration attorney can help with verifying your eligibility for widow(er) benefits and submitting a request for I-130 to I-360 conversion or filing a properly documented I-360 self-petition. It’s also important to seek counsel in the Adjustment of Status application within the United States or in the Immigrant Visa request at the U.S. Consulate abroad.
For information on other possible remedies for surviving relatives, read our related articles:
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Comments Off on Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died
Posted onJuly 13, 2019|Comments Off on Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died
U.S. federal regulations require the approval of a Form I-130, family-based immigrant petition to be revoked when the petitioner dies. This stops the immigration process if the beneficiary has yet to obtain permanent resident status on the date of the petitioner’s death. But an exception under 8 C.F.R 205.1(a)(3)(i)(C) allows USCIS to, as a matter of discretion, reinstate the approval if it determines that a revocation is inappropriate due to humanitarian reasons.
Who is Eligible for Humanitarian Reinstatement?
Humanitarian reinstatement is only available to the principal beneficiary of an approved petition. It is not a remedy for persons whose petitions are still pending or for derivatives of a principal beneficiary.
For example, a married son of a U.S. citizen petitioner in the F3, family-based category, may still immigrate to the United States if the petitioner dies before he gets his green card, as long as the I-130 petition was approved before the death. But his spouse and minor children will not benefit from humanitarian reinstatement and cannot immigrate through the deceased’s petition. Instead, the principal beneficiary will need to file petitions for his spouse and children after he becomes a permanent resident.
In family-based immigration, most applicants are required to submit a Form I-864, Affidavit of Support. Their work history or other factors can sometimes make up for the lack of a Form I-864, under the totality of the circumstances test. In either case, the petitioner’s death does not protect them from the public charge inadmissibility ground under INA 212(a)(4).
If you were required to provide a Form I-864 and the petitioner died, you need an eligible substitute sponsor. Otherwise, you must qualify for an exemption from the Affidavit of Support requirement.
How to Apply for Humanitarian Reinstatement
Humanitarian reinstatement may only be requested by the principal beneficiary when the petitioner of an approved I-130 petition has died.
Whether to reinstate the approval for humanitarian reasons, despite the petitioner’s death, is an entirely discretionary decision, i.e. the positive factors outweigh the negative factors. A denial by USCIS is not subject to appeal, although the agency may consider a timely motion to reopen or motion to reconsider.
There is no specific application form to submit or filing fee to pay to ask for humanitarian reinstatement. You do, however, need to send a written request with supporting documents to the USCIS office that originally approved the petition, including:
1. Full name of the deceased petitioner and the principal beneficiary
2. Any A-numbers of the deceased petitioner and the principal beneficiary
3. The receipt number for the approved petition
4. The petitioner’s death certificate, plus certified English translation if document is in a foreign language
5. Form I-864, Affidavit of Support, from an eligible substitute sponsor , or evidence of exemption for Affidavit of Support
The substitute sponsor must be:
A U.S. citizen, national, or lawful permanent resident;
At least 18 years old; AND
Your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
You may be exempt from filing a Form I-864 if:
You have earned or can receive credit for 40 quarters (credits)/10 years of work in the United States (as defined by the Social Security Act), regardless of the immigrant category. (Check your SSA earning statements. Do not count any quarters during which you received a means-tested public benefit.); OR
You are under 18 years old, unmarried, immigrating as the child of a U.S. citizen, are not likely to become a public charge, and will automatically become a U.S. citizen pursuant to INA section 320 upon your admission to the United States.
6. Evidence that a favorable exercise of discretion is warranted, such as:
Hardships to family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
Advanced age or health concerns;
Lawful residence in the United States for a lengthy period;
Ties or lack thereof to your home country;
Undue delays in processing the petition
Any other positive factors that support a reinstatement
Consult a Qualified U.S. Immigration Attorney
Humanitarian reinstatement processing can be uncertain and lengthy. There is no standardized application form to file and no receipt notice acknowledging USCIS is reviewing the request. In addition, some USCIS offices will not consider repeated requests for humanitarian reinstatement.
Consult a qualified U.S. immigration attorney to help you submit one single, complete and approvable request for humanitarian reinstatement, with all the supporting evidence.
For information on other possible remedies for surviving relatives, read our related articles:
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onJune 14, 2019|Comments Off on Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died
Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.
Normally, a pending petition must be denied or an approved petition must be revoked if the petitioner dies before the beneficiary has already obtained the green card, based on federal regulations. But INA 204(l) preserves U.S. immigration benefits for certain surviving relatives with pending or approved petitions.
A December 16, 2010 USCIS Policy Memorandum, titled Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, outlines who is protected by section 204(l) and how the relief works.
Who is Protected by Section 204(l)?
Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States.
Section 204(l) provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or principal applicant dies. It allows eligible derivative beneficiaries to continue with the green card process even if the principal beneficiary dies. Derivative beneficiaries are applicants who cannot be directly petitioned for, but may accompany or follow-to-join the principal beneficiary of the petition based on a spousal or parent-minor child relationship.
You may be eligible for 204(l) relief if you are a:
• Principal or derivative beneficiary of a pending or approved I-130 family-based petition, when the petitioner died;
• Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died;
• Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died;
• Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died;
• Derivative of a T or U nonimmigrant visa holder (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5), admitted as a derivative, and the principal (T-1 or U-1) visa holder has died;
• Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) has died.
Residence Requirement
Certain petitions have more than one beneficiary. For 204(l) relief to apply, at least one beneficiary or derivative beneficiary must be residing in the United States at the time of the death and continues to reside in the United States. If one beneficiary meets the residence requirement, all the beneficiaries can benefit from section 204(l) relief.
Residence is your primary home or your “principal, actual dwelling place in fact, without regard to intent.” Residence is not the same as physical presence or as having lawful nonimmigrant status in the United States. You may qualify while briefly abroad if you can show that your primary home is in the United States. Incidental travel for participating in business trips, taking a vacation, or visiting family abroad does not affect 204(l) eligibility.
Admissibility Requirement
204(l) applicants may be found inadmissible under INA 212 at the time of the immigrant visa or adjustment of status interview. Inadmissibility grounds include INA 212(a)(4)(public charge), INA 212(a)(9)(B)(unlawful presence), and INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits).
Public Charge
Family-based applicants are normally required to submit a Form I-864, Affidavit of Support, to show they will not become a public charge to the United States. The death of the petitioner does not change this requirement.
If the petitioner dies, there has to be a Form I-864 from a substitute sponsor who is a U.S. citizen or lawful permanent resident, at least 18 years old, and the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian of the applicant.
Otherwise, you have to qualify for an exemption from filing the Form I-864 in one of two ways:
1. You have earned or can receive credit for 40 quarters (credits)/10 years of work in the United States, as defined by the Social Security Act, regardless of the immigrant category. (Check your Social Security earnings statements. Do not count any quarters during which you received a means-tested public benefit.)
OR
2. You are under age 18, unmarried, immigrating as the child of a U.S. citizen, are not likely to become a public charge, and will automatically become a U.S. citizen pursuant to INA section 320 upon your admission to the United States.
Unlawful Presence or Fraud/Willful Misrepresentation
You may still apply for inadmissibility waivers that require “extreme hardship to a qualifying relative” — such as the INA 212(a)(9)(B)(v) waiver for unlawful presence and the INA 212(a)(6)(C)(i) waiver for fraud or willful misrepresentation — if the qualifying relative is also the relative who died. USCIS will consider the death of a qualifying relative as the “functional equivalent” of a finding of extreme hardship, i.e. USCIS will assume that the death of the qualifying relative amounts to extreme hardship for waiver purposes.
Your case, however, must still warrant the favorable exercise of discretion (positive factors outweigh the negative factors) for USCIS to grant the waiver. Furthermore, you must have a qualifying relative who was already a U.S. citizen or permanent resident at the time of the death to be eligible for the waiver. If the deceased relative is not a qualifying relative for waiver purposes, you still need a qualifying relative to be eligible for the waiver. For example, if the principal beneficiary of an I-130 petition dies before he becomes a permanent resident, his spouse (derivative beneficiary) may lack a qualifying relative to apply for a waiver if she is found inadmissible.
“Public Interest” Standard and Favorable Exercise of Discretion
Even when section 204(l) applies, USCIS may still deny the petition, as a matter of discretion, if the approval would not be in the “public interest.” This exercise of discretion is not subject to appeal, although USCIS may review a timely motion to reopen or motion to reconsider.
USCIS has stated, “USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to section 204(c) of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. ”
Adjustment to permanent resident status, through the filing of a Form I-485 application, is also a discretionary relief that USCIS may deny as a matter of discretion. Furthermore, certain applicants are not eligible at all for adjustment and must depart the United States to apply for an immigrant visa at the U.S. Consulate abroad.
What is the Effective Date of Section 204(l)?
Section 204(l) became law on October 28, 2009. The provision applies only to petitions and applications adjudicated on or after that date. It applies to cases where the petitioner or qualifying relative died before October 28, 2009, but the petition or application was pending on that date or adjudicated after that date.
USCIS has stated it will allow untimely motions to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009 if 204(l) would permit approval. If USCIS denies a petition or application on or after October 28, 2009 without considering whether 204(l) applies, the agency must reopen the case on its own motion.
How to Apply for 204(l) Relief
There is no specific application form to submit or filing fee to pay to request 204(l) relief. To apply for 204(l) benefits, you should submit a letter to USCIS explaining your eligibility and provide supporting documents. If a petition is pending, you need to ask for an approval under 204(l) despite the death. If the petition was approved prior to the death, you need to request the reinstatement of the approval under 204(l).
USCIS instructs applicants to include the following with a 204(l) request:
• Full name of the deceased relative, the principal applicant and any derivative beneficiaries
• Any A-numbers of the deceased relative, the principal applicant and any derivative beneficiaries
• The receipt number for the underlying petition or application
• The relative’s death certificate, plus certified English translation if document is in a foreign language
• Proof of residence in the United States at the time of the death up until the present time by at least one beneficiary (e.g. rental lease or mortgage, utility bills, school records, or pay stubs.)
• Form I-864, Affidavit of Support, by a substitute sponsor, or a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, if applicable.
To determine where and when to file the section 204(l) request, you may refer to the USCIS If-Then chart on its website, which is replicated below:
IF
THEN
Your visa petition (e.g., Form I-130 or Form I-140) or Form I-730 was pending when your relative died and at least one beneficiary, or derivative beneficiary, resided in the United States when your relative died and continues to reside in the United States
Send your written request to the USCIS office currently processing your case (the address is on the receipt notice (Form I-797) or, if USCIS transferred the case to a different office, send your request to the new office listed on the transfer notice)
Your petition was already approved when your relative died AND you are not ready and/or able to file Form I-485 yet
Send your written request to the office that approved your petition
Your petition was already approved when your relative died AND you have a visa available and are ready to file Form I-485
Send your written request with your Form I-485 package per Instructions for Form I-485
You have already filed Form I-485 (whether or not your petition was pending or already approved)
Send your written request to the USCIS office having jurisdiction over your application
You are in T or U nonimmigrant status
Send your written request to the Vermont Service Center
You are in asylee status
Send the written request with your Form I-485 package when you file for adjustment of status, if applicable, per Instructions for Form I-485
Humanitarian reinstatement is not be confused with 204(l) relief. If, however, you believe the regulations allowing humanitarian reinstatement also apply to you, you should submit a single written request asking USCIS for both types of relief.
Consult a Qualified U.S. Immigration Attorney
Because there is no standardized application form, there is no means for USCIS to issue a receipt notice for a 204(l) request for relief. It is difficult for applicants to track progress or receive updates on such cases.
Work with a qualified U.S. immigration attorney to prepare and file a clear, properly documented 204(l) request with USCIS. The attorney can also help you notify the U.S. Department of State that you are asking for this relief from USCIS, if you will be applying for an immigrant visa at the U.S. Consulate instead of seeking to adjust to permanent resident status within the United States.
For information on other possible remedies for surviving relatives, read our related articles:
Also check out Episode 4 on The Legal Immigrant podcast:
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onFebruary 22, 2019|Comments Off on Approval of I-601A Provisional Unlawful Presence Waiver + Immigrant Visa Grant = A True Success Story
U.S. Citizenship & Immigration Services (USCIS) approved the Form I-601A, Application for Provisional Unlawful Presence Waiver, of the spouse of a U.S. citizen after denying his two earlier requests. On the first try, he had prior counsel’s help. His second attempt was made pro se. With our representation in the third and final I-601A application, he persuaded USCIS to grant the waiver on the merits, based on the extreme hardships his U.S. citizen spouse would suffer if he were denied lawful admission to the United States. He further received an immigrant visa within three weeks of attending his interview at the U.S. Consulate abroad.
Problem: Unlawful Presence Bar
Section 212(a)(9)(B)(i) of the Immigration & Nationality Act (INA) states that a person who accrues unlawful presence in the U.S. for more than 180 days, but less than one year, and then departs the U.S. prior to commencement of removal proceedings, is barred from re-entering the country for three years. The bar to re-entry is 10 years if the unlawful presence lasted one year or more. The 3/10 year unlawful presence bar is triggered when the person departs the U.S. – even if it is to legalize his status by applying for an immigrant visa at the U.S. Consulate overseas.
Our client could not adjust to permanent resident status within the United States, despite being the beneficiary of an approved I-130 immigrant petition filed by his U.S. citizen spouse. The reason is he entered the United States without proper inspection and did not meet the lawful admission requirement to file for a green card inside the country. A departure from the U.S. was necessary for him to get his immigrant visa and then return as a permanent resident.
Because he had been in the U.S. for almost 20 years without authorization (by the time the third waiver request was filed), he was subject to the 10-year unlawful presence bar to re-entry. USCIS’ grant of the I-601A provisional waiver gave him some assurance – but no guarantee – that he would be issued the immigrant visa at the U.S. Consulate. The I-601A waiver covers only the unlawful presence bar, so it is subject to revocation by the U.S. Consulate if other inadmissibility grounds apply.
In its decisions denying the previous two I-601A waiver requests, USCIS stated that prior to his last illegal re-entry, the applicant may have entered the U.S. without inspection and admission or parole on more than one occasion and he may have been unlawfully present in the U.S. for more than one year during prior stays.
I advised the applicant and his spouse that if he had indeed illegally re-entered the country after accruing more than one year of unlawful presence, he would have a permanent bar under INA 212(a)(9)(C). While a person may file a separate Form I-212 application to be excused from this permanent bar, he may not do so until he has been outside the United States for at least 10 years.
After being advised of the risk of being found inadmissible under INA 212(a)(9)(C), in addition to INA 212(a)(9)(B)(i), the applicant agreed to still move forward with the I-601A waiver application and depart the U.S. for consular processing.
Solution: Provisional Waiver
To support the I-601A waiver application, I submitted a legal memorandum clarifying the applicant had just one illegal entry to the United States and was subject only to the 10-year unlawful presence bar. I pointed out that the earlier entry date on his Temporary Protected Status (TPS) application was filled out in error by a notario – without his knowledge and consent – to meet the TPS eligibility requirement. In the TPS request, he did not provide any evidence or information reflecting that earlier entry date because it did not actually occur.
I also counseled the applicant and his spouse on the documentary evidence and information to submit to meet the extreme hardship requirement. This came with challenges because the spouse did not have any serious medical condition, life-threatening illness, or other individual factor to show she would face extreme hardship due to her staying in the U.S. without her spouse or relocating abroad to be with him.
The legal memorandum outlined a multitude of factors and the totality of the circumstances to satisfy the extreme hardship standard. For instance, we described the spouse’s vulnerability to psychological problems, her reliance on him to care for their three young children, and the poor living conditions and high crime rate in his home country.
Outcome: Waiver Approval + Immigrant Visa Grant
Within four months of receiving the Form I-601A waiver application, USCIS approved it. I next provided further counseling to the applicant and his spouse on the Immigrant Visa application process and what to expect at the visa interview.
As planned, the applicant departed the United States to appear for his immigrant visa interview at the U.S. Consulate in his home country. No additional inadmissibility grounds, such as the INA 212(a)(9)(C) bar, were found by the Consulate. The I-601A waiver excused him from the 10-year unlawful presence bar and allowed him to receive the immigrant visa.
His spouse sent me a note confirming he was admitted to the United States with his immigrant visa and was granted lawful permanent residence. She wrote, “We thank you for your diligent work and your representation. I am very satisfied with your legal services and will refer you with no hesitation.“
The two prior I-601A denials and possible INA 212(a)(9)(C)(i) bar did not deter the applicant from pursuing the waiver a third time before finally receiving it and the immigrant visa 11 years after the I-130 had been filed. Thankfully, he was able to return home to his family and continue his life in the U.S. as a permanent resident, after living in the country for almost 20 years without status.
Representing the applicant in his third and final I-601A waiver request and guiding him through the Immigrant Visa process led to true success.
Cheers,
Dyan Williams
Founder & Principal Attorney Dyan Williams Law PLLC (612) 225-9900 info@dyanwilliamslaw.com
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onDecember 31, 2018|Comments Off on Grant of Motion to Vacate INA 212(a)(6)(C)(i) (Misrepresentation) Charge+ Issuance of Immigrant Visas = A True Success Story
The U.S. Consulate granted immigrant visas to the father and mother of an adult U.S. citizen after previously denying them — one year earlier — under INA 212(a)(6)(C)(i) willful misrepresentation of material facts to gain U.S. immigration benefits).
Upon receiving our two Motions to Reconsider and Rescind Inadmissibility Determination, the Consulate responded within 10 days, stating it reviewed our requests and removed the permanent bar under INA 212(a)(6)(C)(i) in both cases. The Consulate instructed our clients to appear for a second interview after submitting updated visa application forms and required documents. Approximately six weeks later, they attended their second interview and were granted their immigrant visas to enter the United States as permanent residents.
At the first interview, the Consulate denied the immigrant visas because the applicants had overstayed their authorized periods in the United States as B1/B2 visitors for many years, but apparently did not disclose this when they applied for new visitor visas.
The section 212(a)(6)(C)(i) bar could not be excused with a Form I-601/INA 212(i) waiver of inadmissibility because they had no qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who would suffer extreme hardship if they were not admitted to the United States. A U.S. citizen son does not count as a qualifying relative for immigrant waiver purposes.
Before seeking the immigrant visas based on their U.S. citizen son’s immigrant petition, our clients were informed about the section 212(a)(6)(C)(i) bar when they sought new B1/B2 visitor visas 10 years earlier. At that time, they did not challenge the inadmissibility finding and instead received 212(d)(3) nonimmigrant waivers to be granted visitor visas.
The 212(d)(3) nonimmigrant waiver, however, has less stringent eligibility requirements than the Form I-601/INA 212(i) waiver. By the time the clients retained me to represent them in challenging the section 212(a)(6)(C)(i) bar, almost one year had passed since they attended their first immigrant visa interview.
U.S. federal regulations give them one year from the date of the immigrant visa refusal to file a Motion to Reconsider with new evidence or legal arguments. Responding quickly and effectively, I counseled the clients in preparing their declarations (written testimonies) and gathering documentary evidence showing their overstay occurred before April 1, 1997 and they departed the United States in May 1996.
In the Motion to Reconsider, I acknowledged the applicants might have stated “no” to the question on whether they had violated the terms of a U.S. visa or been unlawfully present in the United States, when they should have said “yes.”
The father explained that he had used a professional broker service, paid for by his employer, to help fill out the visa application and that if a misrepresentation had occurred, it was not willful. The mother denied stating “no” to the overstay, but had no copies of the visa applications she had submitted.
In any event, I argued that to invoke the section 212(a)(6)(C)(i) bar, the Consulate must not only find that willful misrepresentation occurred, but also that the information at issue was material to the applicant’s admissibility. I pointed out that both visa applicants departed the United States in May 1996 following their long overstay as visitors. The departure date was critical.
The U.S. Congress did not enact the Illegal Immigration Reform and Immigrant Responsibility Act until September 30, 1996, when the 3/10 year unlawful presence bar was introduced. Any unlawful presence that was accrued prior to April 1, 1997, when the law went into effect, does not count for purposes of the 3/10 year bar under INA 212(a)(9)(B)(i).
Therefore, when the clients applied for new visitor visas in the early 2000’s, they had not accrued any unlawful presence that made them inadmissible to the United States or ineligible for a visitor visa under INA 212. If there was any failure to disclose an overstay on the visitor visa applications, it did not cut off a relevant line of inquiry regarding their admissibility or visa eligibility.
The clients were fortunate to have the section 212(a)(6)(C)(i) bar lifted upon Motion to Reconsider, particularly because they had no qualifying relative for Form I-601/INA 212(i) purposes. While they could have continued to apply for B1/B2 visitor visas with 212(d)(3) nonimmigrant waivers for temporary trips, their true desire was to live permanently in the United States with their U.S. citizen son. Having permanent resident status further allows them to file immigrant petitions for their two younger children (under age 21), who were born overseas and need to join them in the United States.
Upon receiving the good news that the section 212(a)(6)(C)(i) bar had been removed, the applicants sent me a thank-you email stating, “We are so happy and thrilled and would not be celebrating today if it wasn’t for your talent and expertise. We will always be grateful to you for this outcome. Even in our best estimates, we could never expect a response in such a short time.”
Helping my clients obtain their immigrant visas within two months of filing the Motion to Reconsider and Rescind the section 212(a)(6)(C)(i) bar is a true success story.
Cheers,
Dyan Williams
Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
U.S. federal regulations require the approval of a Form I-130, family-based immigrant petition to be revoked when the petitioner dies. This stops the immigration process if the beneficiary has yet to obtain permanent resident status on the date of the petitioner’s death. But an exception under 8 C.F.R 205.1(a)(3)(i)(C) allows USCIS to, as a matter of discretion, reinstate the approval if it determines that a revocation is inappropriate due to humanitarian reasons.
Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.
The U.S. Consulate granted immigrant visas to the father and mother of an adult U.S. citizen after previously denying them — one year earlier — under INA 212(a)(6)(C)(i) willful misrepresentation of material facts to gain U.S. immigration benefits).
