Category Archives: immigration fraud

Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

On appeal, a USCIS Field Office reconsidered and reversed its denial of our U.S. citizen client’s Form I-130 petition for her spouse under INA 204(c), which is commonly known as the marriage fraud bar. The Board of Immigration Appeals (BIA) has authority to review such decisions, but USCIS chose to vacate the section 204(c) bar on its own and approve the petition without a BIA order. In addition, the spouse was granted a green card based on his concurrently filed Form I-485 application for permanent resident status. These favorable decisions were made within three months of our filing the Notice of Appeal and within two months of our submitting the legal memorandum to support the appeal.

Beneficiary’s File is Flagged Due to USCIS’ Denial of Prior I-130 Petition by Previous U.S. Citizen Spouse

Section 204(c) of the Immigration & Nationality Act states that no petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, through a sham marriage, i.e. a marriage determined by USCIS to have been entered into for the purpose of evading U.S. immigration laws.

In our clients’ case, the beneficiary was previously married to another U.S. citizen who filed a prior I-130 petition for him. They completed two different interviews with USCIS over a two-year period. They were separated and asked various questions about their courtship and marriage, from which USCIS listed a total of five discrepancies between their answers.

USCIS investigators also went to their shared residence when neither of them was present. The petitioner’s mother – who lived with them – was at the home when the officers arrived. She confirmed the couple resided there with her, but the officers found very few personal items belonging to the beneficiary. Through further investigations, USCIS discovered the beneficiary was the lessee of a separate apartment and determined that he lived there instead of with the petitioner.

With the help of prior counsel, the petitioner and beneficiary submitted a Response to the Notice of Intent to Deny the I-130 petition, in which they described the reasons for the discrepancies at the interview, confirmed they lived together, and explained the separate apartment under the beneficiary’s name was being subleased to another person.

Three months after receiving the Response to the NOID, USCIS denied the I-130 petition based on the discrepancies at the interviews and their investigations from which they determined the beneficiary did not live with the petitioner. The evidence filed with the Response was disregarded. The decision was not appealed because the marriage fell apart and the parties ultimately divorced.

Beneficiary Faces INA 204(c)/Marriage Fraud Bar in Subsequent I-130 Petition by Second U.S. Citizen Spouse

Following his divorce from his first U.S. citizen spouse, the beneficiary entered into marriage to another U.S. citizen, who filed an I-130 petition for him about 18 months after the prior petition was denied. After interviewing the couple, USCIS issued a Notice of Intent to Deny the petition a year later.

In the Notice of Intent to Deny, USCIS acknowledged the couple’s marriage is bona fide and cited to no discrepancies between their testimonies at the interview. The Service, however, pointed out the beneficiary is ineligible for an I-130 approval under INA 204(c), in that his prior marriage was found to be a sham.

Petitioner Receives Guidance on Responding to Notice of Intent to Deny through Consultation

The petitioner contacted our firm, Dyan Williams Law, for help just four days before the Response to Notice of Intent to Deny was due to USCIS. Due to the time constraints and pre-existing commitments, we declined to represent her in the Response, but agreed to provide her with a consultation.

To prepare for the consultation, I reviewed the Notice of Intent to Deny the petition, the earlier Response to Notice of Intent to Deny that was filed by the prior U.S. citizen spouse, and other key items. During our telephone call, I gave the petitioner a list of documents and information to gather and present in her Response. I also summarized applicable case law and essential legal arguments she should mention in her Response.

Using my recommendations, the petitioner filed a timely and persuasive Response, which included a notarized declaration from the beneficiary’s ex-spouse confirming they had a good-faith marriage.

Representation on Appeal Leads to Reversal of INA 204(c) Finding and Approval of I-130 and I-485

A week after receiving the Response to Notice of Intent to Deny, USCIS issued a decision denying the I-130 petition under INA 204(c). The Service found there was no credible evidence to substantiate the claim of a bona fide marriage between the beneficiary and his prior U.S. citizen spouse.

The petitioner contacted me soon after she received the decision. This time, I accepted her case for representation and agreed to prepare and file the appeal on her behalf.

On appeal, I argued it was not the petitioner’s burden to prove her spouse’s prior marriage was bona fide. Rather, the Service has the burden to show by “substantial and probative evidence” that the beneficiary previously attempted or conspired to enter into a sham marriage for U.S. immigration purposes. I cited to applicable law, the credible explanations for the discrepancies at the interviews, and material evidence demonstrating the beneficiary and his prior spouse lived together and shared a real marriage before it ended in divorce. I noted the Service made a reversible error by applying the harsh statute – INA 204(c) – to deny the petition.

About two months after the legal memorandum to support the appeal was submitted, the petitioner informed me that USCIS approved the I-130 petition. She and her spouse also received notice that the concurrently filed I-485 application was reopened by USCIS, on its own initiative.

A couple weeks later, the beneficiary received his 10-year green card in the mail. He is now a permanent resident of the United States who may eventually file for naturalization (citizenship). After more than seven years of seeking to obtain permanent residence – first through a failed marriage and then via his current marriage – he finally achieved true success in his immigration journey with our counsel.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@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.

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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
dw@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.

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Rescission of INA 212(a)(6)(C)(i) (Misrepresentation) Finding + Grant of H-1B Visa = A True Success Story

In September 2018, the U.S. Embassy issued an H-1B temporary worker visa to my client after previously finding he is permanently inadmissible under INA 212(a)(6)(C)(i), i.e. willful misrepresentation of material fact to gain U.S. immigration benefits. At the visa interview, he relied on my recommendations to explain why the misrepresentation bar does not apply to him.

The Embassy did not specify the factual basis for the misrepresentation finding. But years ago, my client’s H-1B visa was revoked by the U.S. Customs & Border Protection (CBP) and he was denied entry and allowed to withdraw his application for admission.

In particular, at primary inspection, the CBP officer asked him about his relationship with the H-1B petitioner (consulting firm) and the end client. Instead of naming the consulting firm as his U.S. employer, he mistakenly gave the name of the end client, where he was assigned to work. From there, confusion began.  At secondary inspection, the CBP questioned him extensively and ultimately denied his entry under INA 212(a)(7)(A)(i)(I)(intended immigrant without valid travel document) – which CBP often uses as a catch-all provision to refuse admission to the U.S.

A few years later, the Embassy did issue him a new H-1B visa based on an approved I-129 petition by another U.S. employer, without raising the misrepresentation bar. But when he later requested a visa renewal to enter the United States following a trip abroad, the Embassy requested several documents related to his previous employments in the United States. These included the I-797 (receipt and approval) notices for all H-1Bs; all I-129/H-1B petitions filed on his behalf; Labor Condition Applications in support of the H-1B petitions filed on his behalf; support letter from the end client; employment contracts; and pay statements.

Despite receiving the requested documents, the Embassy denied the H-1B visa  under INA 212(a)(6)(C)(i). When he applied again for the H-1B visa three months later – at the direction of his U.S. employer – the Embassy said nothing had changed and again refused the visa under section 212(a)(6)(C)(i).

After being denied the H-1B visa twice on misrepresentation grounds, he contacted me to prepare a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i). The Embassy accepted my legal memorandum and some of the documentary evidence establishing the section 212(a)(6)(C)(i) bar was applied in error. It placed the case in administrative processing and then finally granted the visa two months later.

Although my client could have filed for a 212(d)(3) nonimmigrant waiver, I explained this would take a longer time to process and a waiver grant would still leave the section 212(a)(6)(C)(i) bar intact. He also had an approved I-140 immigrant petition filed on his behalf and the 212(d)(3) waiver would not overcome the inadmissibility ground to receiving an immigrant visa or green card. With no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for a Form I-601/INA 212(i) immigrant waiver, he would be subject to being denied permanent residence as long as the 212(a)(6)(c) bar remained.

Furthermore, and most important, he had made no willful misrepresentation of material fact to obtain an H-1B visa or any other U.S. immigration benefit. I pointed out that if the Embassy agreed to rescind the section 212(a)(6)(C)(i) charge, he would not require a 212(d)(3) waiver for the H-1B visa to be issued.

Two months following the visa interview, the Embassy instructed my client to submit his passport. It issued the H-1B visa to him and he re-entered the United States without any problems. 

Because the Embassy vacated the section 212(a)(6)(C)(i) charge, my client will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. He also will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.

Through emails, telephone calls  and video conferences, my client and I worked together to convince the Embassy to vacate the misrepresentation bar and grant the H-1B visa. This is a true success story in which he timely received the visa after being denied it twice in a row.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@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.

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Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

On June 28, 2018, USCIS issued updated guidance requiring its officers to initiate removal proceedings in more cases to align with President Trump’s executive order, Enhancing Public Safety in the Interior of the United States.  USCIS Director L. Francis Cissna said the new policy equips USCIS officers to better support the immigration enforcement priorities of the Department of Homeland Security (DHS).

The 2018 memorandum instructs USCIS to issue a Notice to Appear in removal proceedings before an Immigration Judge to inadmissible or deportable persons in an expanded range of situations, instead of referring NTAs to the U.S. Immigration & Customs Enforcement (ICE) in limited cases.  One major change is that an NTA must be issued whenever a person’s immigration benefit request is denied and he or she is “not lawfully present” in the United States.

What is a Notice to Appear?

A Notice to Appear is a Form I-862 the DHS issues to initiate removal proceedings against a person. The NTA includes the charges against the person and alleges the immigration laws he or she violated.  Some NTAs include the date and time of the initial hearing, when you first appear before an immigration judge who decides whether you should be removed or whether you qualify for relief, including voluntary departure in lieu of a removal order.

What Was the Previous USCIS Policy on Issuing a Notice to Appear? 

The November 7, 2011 Policy Memorandum (PM), which is now superseded by the June 28, 2018 PM, provided “USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. ”

The 2011 policy instructed USCIS to issue an NTA in the following situations:

  • Cases where it is required by statute or regulation, such as termination of Conditional Permanent Resident Status and denials of Form I-751, and asylum referrals.
  • Fraud or willful misrepresentation/section INA 212(a)(6)(C) cases when a Statement of Findings substantiating fraud is part of the record.
  • In naturalization (Form N-400 application) cases where the applicant is removable, including those who were inadmissible at the time of obtaining permanent residence.

The 2011 policy further directed USCIS to refer matters to ICE in the following situations:

  • Egregious Public Safety (EPS) cases “where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of” certain specified aggravated felonies as defined under section 101(a)(43) of the INA; is a Human Rights Violator, is a known or suspected street gang member or is subject to Interpol  hits; or has re-entered the U.S. after removal subsequent to a felony conviction where no Form I-212, Application for Consent to Reapply for Admission, has been approved.
  • Cases where the person is inadmissible or removable due to a criminal offense falling outside of the EPS definition, after USCIS completes adjudication.

What is the Current USCIS Policy on Issuing a Notice to Appear?

The June 28, 2018 Policy Memorandum (PM) requires USCIS to issue a Notice to Appear in a broader range of cases without first consulting ICE.

Many more persons will be placed in removal proceedings as USCIS is now required to issue an NTA in the following situations:

  • If an application or petition for immigration benefits is denied and the person is not in lawful status (not lawfully present).
  • If an application or petition for immigration benefits is denied and the person is removable (i.e. subject to any removability grounds under INA 237), especially when there is evidence of fraud or misrepresentation and/or abuse of public  benefit programs.
  • Criminal cases in which the applicant is removable and has been convicted of or charged with any criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or is the ground of removability.
  • Naturalization cases in which the applicant is removable and USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds due to a criminal offense.

USCIS will continue to apply the 2011 NTA guidance to the following:

  • Cases involving national security concerns.
  • Cases where issuing an NTA is required by statute or regulation.
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status.
  • Deferred Action for Childhood Arrivals (DACA) recipients and applicants when USCIS is: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

UPDATE: On September 27, USCIS announced it will begin implementing the new guidance on October 1 in certain cases. For instance, it may issue NTAs on denied status-impacting applications, including Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. 

In a September 27th teleconference, USCIS also said it will not issue an NTA immediately upon denial of an immigration benefit.  Normally, it will wait for the expiration of the motion or appeal period before issuing an NTA. If an NTA is issued before a motion or appeal is filed or while it is pending, and USCIS takes favorable action on the motion or appeal, USCIS will notify ICE. Withdrawing an application does not cancel USCIS’s authority to issue an NTA. 

Potential Negative Effects of the NTA Policy Change

The new NTA guidance might discourage eligible applicants from seeking immigration benefits out of fear of getting their requests denied and being placed in removal proceedings if they are not lawfully present.  This includes persons applying for a green card (lawful permanent resident status), a change or extension of status, a waiver of inadmissibility and other immigration relief.

Departing the United States on one’s own, after being denied an immigration benefit, will bring harsh penalties when an NTA is issued and the person fails to appear for the scheduled Immigration Court hearing. An in absentia removal order is issued if there is clear, unequivocal and convincing evidence that written notice was provided and that the person is removable, but did not attend the proceeding.

At the same time, those who wait in the United States for an initial court date to appear before an immigration judge will continue to accrue unlawful presence toward the 3/10-year bar to re-entry under INA 212(a)(9)(B).  A person who accrues unlawful presence of more than 180 days but less than one year is barred from re-entering the U.S. for three years. The bar to re-entry is 10 years if the person accrues unlawful presence of more than one year prior to departure. The initiation of removal proceedings does not stop the accrual of unlawful presence.

Furthermore, the updated policy turns USCIS into another immigration enforcement component of DHS, along with ICE and the U.S. Customs & Border Protection (CBP).  An increase in the issuance of NTAs will create additional backlog in the immigration court system and lengthen USCIS processing times.

Conclusion

Besides the new NTA policy, USCIS issued updated guidance to make it easier to deny a petition or application without first issuing a Request for Evidence or Notice of Intent to Deny. Another  USCIS policy change also subjects more nonimmigrant students and exchange visitors to accruing unlawful presence toward the 3/10-year bar, as well as the permanent bar under INA 212(a)(9)(C).

All these new policies are in line with the February 2018 change in USCIS’ mission statement, deleting sentences that refer to the United States as “a nation of immigrants” and to noncitizens who apply and pay for immigration benefits as “customers.” USCIS Director Cissna explained that this is “a reminder that we are always working for the American people.”

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

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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 legal 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.

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Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited)

If you had a baby in the United States, made frequent/extended trips to the country, or applied for a change in immigration status during a prior stay as a visitor, you may be stopped from entering the U.S., even though these activities are not strictly prohibited.

This problem arises especially when the U.S. Consulate or U.S. Customs & Border Protection determines you misrepresented the purpose of your visit when you applied for the B-1/B-2 visitor visa and used it or the Visa Waiver Program (VWP) to enter the United States.

Section 214(b) of the Immigration & Nationality Act presumes that most nonimmigrant visa applicants intend to immigrate permanently to the United States. Only certain categories, such as the H-1B  (professional worker) and L-1A/L-1B (intracompany transferee), allow dual intent (i.e. intent to immigrate in the future while maintaining temporary status in the present). Otherwise, nonimmigrant visa applicants must show they have no intent to immigrate and simply seek a temporary stay in the U.S.

When you engage in any of the following 3 activities, you could have problems getting a new visa or gaining re-entry to the U.S. for a temporary stay, although each one, by itself, does not violate U.S. immigration law or make you inadmissible to the United States:

1. Traveling to the United States to have a baby (“Birth Tourism”)

Traveling to the United States on a visitor visa for the purpose of giving birth to a child is commonly known as Birth Tourism.  Under the 14th Amendment of the U.S. Constitution, birth in the United States gives the child automatic citizenship with all its rights and privileges.

Furthermore, birth citizenship provides the  foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or daughter may file an immigrant petition for a parent in the immediate relatives category, which has no numerical limits on immigrant visas available.  A parent who overstays in the United States and is placed in removal proceedings may qualify for Cancellation of Removal and Adjustment of Status (to permanent residence) if she has been continuously present in the United States for at least 10 years, has not been convicted of certain offenses, has good moral character, and her removal would result in exceptional and extremely unusual hardship to her U.S. citizen child.

There is no specific law, regulation or policy prohibiting birth tourism per se or preventing a pregnant woman from entering the United States. Nonetheless, U.S. consular officers and customs officers often view it as a misuse of the visitor visa status and a gaming of the immigration system to give the child automatic citizenship.

If the officer sees you are pregnant at the time of applying for a tourist visa or requesting admission as a visitor, he may refuse the visa or deny your entry. This is why birth tourists who hail from various countries such as China, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the United States when their pregnancy is not so obvious.

Even if you succeed in gaining a visitor visa or entering the United States as a visitor to give birth, you might still encounter problems in the future when you apply for a new visa or admission as a nonimmigrant.

A consular officer may deny your request for a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) by finding you intend to immigrate due to your having a U.S. citizen son or daughter, or based on mere suspicion that you will use a new visa to give birth in the U.S. again. The U.S. Consulate has sole discretion to make a factual determination on whether you have strong ties to your country to overcome the presumption of immigrant intent.

A non-resident parent who travels with a U.S. citizen child may face tougher scrutiny at the U.S. port of entry. A customs officer who discovers you had a child during a prior visit in the U.S.  may deny your request for admission on a temporary visa and further issue an expedited removal order under INA 212(a)(7)(lack of proper visa or other travel documents), which carries a five-year bar. To be excused from this five-year bar to being admitted to the United States, you need an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

In some cases, a consular officer or customs officer may issue a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain a visa or entry to the United States), which is a lifetime bar. When such an inadmissibility finding is made by the U.S. Consulate or CBP, you may appeal directly to the agency to reconsider and rescind the decision on the basis that giving birth in the U.S., by itself, does not make you inadmissible. But as long as the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(3) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States.

Because a visitor visa may be used for medical treatment, your showing that giving birth in the United States served or serves a health purpose can be a positive factor. An example is if the pregnancy comes with high risks or serious complications. When you are upfront and declare you are coming to the U.S. to give birth, the officer decides, on a case-by-case basis, whether to grant the visa or admission based on proof of strong ties to your country, nonimmigrant intent, and sufficient funds to cover all medical costs.

Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth can help prevent a visa refusal or denial of admission. Ultimately, however, the consular officer or customs officer has discretion to determine whether having a baby in the U.S. is consistent with the purpose of a visitor visa, regardless of whether you cover the medical expenses and do not become a public charge by receiving government assistance to pay the medical bills.

2. Making frequent, extended visits to the United States

U.S. immigration law allows visitor visa holders to conduct legitimate B-1/B-2 activities for a temporary period, minimum of six months. Using ESTA (Electronic System for Travel Authorization) if you are an eligible applicant from a Visa Waiver Program-eligible country allows you visit the United States for 90 days or less.

The U.S. consular officers and customs officers expect you to use the visitor visa or ESTA/Visa Waiver program to engage in tourism and recreational activities, visit family and friends, and conduct other temporary visit activities. Remaining in the U.S. for the maximum or close to the maximum time allowed and then quickly returning to the U.S. (e.g. within a month) for another extended stay do not reflect the travel patterns of a real visitor.

Frequent, extended trips to the United States will likely cause the customs officer to suspect you are really living, studying or working in the country without authorization. You may end up with a shorter authorized stay or a warning from the officer. You could also be placed in secondary inspection and questioned extensively so the officer can find legitimate grounds to deny your entry.

You may be asked to withdraw your application for admission or be issued an expedited removal order due to lack of proper travel documents and even due to willful misrepresentation to enter the U.S.  A visa revocation will likely affect your eligibility for a new visa. An inadmissibility finding will stop you from using the ESTA/Visa Waiver program.

There is no minimum time you must stay in your country before returning to the U.S. for another visit. But if you are constantly traveling to the U.S. and staying for long periods, you can expect to run into problems later, even if you were previously lawfully admitted as a visitor without any complications.

3. Applying for a change of status after entering the United States in another status

U.S. immigration law allows nonimmigrants to change from one status to another (such as B-1/B-2 visitor to F-1 student, H-1B professional worker, or H-2B nonagricultural seasonal worker) or file for asylum within the U.S. if they meet the eligibility criteria.

A request for change of status through the filing of a Form I-539, Application to Extend/Change Nonimmigrant Status, or Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship & Immigration Services is often met with several obstacles. One is that USCIS will not approve the status change request unless you are maintaining lawful B-1/B-2 status or other nonimmigrant status.

Questions regarding whether a willful misrepresentation of material fact to gain an immigration benefit might arise when you file for a change of status within the U.S., instead of apply for the appropriate visa at the U.S. Consulate.

B-1/B-2 visitor visa holders, for instance, may be found to have misrepresented the purpose of their stay if they applied to schools or sought employment after arriving in the United States. Even if you did not attend school or work without authorization in the U.S., your taking steps toward a change in status that permits school attendance or employment in the U.S. could signal to the consular officer that you were not a genuine visitor.

Immigration problems can also occur when you apply for adjustment to permanent resident status instead of file for an immigrant visa at the U.S. Consulate. One of the most common ways for a B-1/B-2 visa holder to adjust to permanent resident (green card) status is to enter into a bona fide marriage to a U.S. citizen and have the citizen file an immigrant petition on his or her behalf. While an overstay, by itself, does not prevent adjustment of status based on marriage to a U.S. citizen, providing false information to a consular officer or customs officer about the purpose of the visit creates immigration problems.

In general, the U.S. Consulate applies a 30/60 day rule in determining whether a misrepresentation was made if you conduct yourself in a manner inconsistent with representations made to the consular officers concerning your intentions at the time of visa application or to customs officers when you requested admission.

If a B-1/B-2 visitor, for example, marries a U.S. citizen and applies for a green card within 30 days of arrival, the consular officer may presume the applicant misrepresented his intentions in seeking a visa or admission to the U.S. There is no presumption of misrepresentation if the request for change of status is made more than 30 days but less than 60 days after arrival. But depending on the facts of the case, the officer may still have a reasonable belief that misrepresentation occurred, in which case the applicant receives an opportunity to present countervailing evidence. While USCIS is not required to follow the Consulate’s 30/60 day policy, it sometimes uses it as guidance. 

[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]

Seeking asylum in the United States, through a credible fear interview process at the U.S port of entry or through the filing of a Form I-589, Application for Asylum and for Withholding of Removal, after being admitted to the U.S., also signals immigrant intent. If asylum is not granted, it will be very difficult (if not impossible) for you to be re-admitted as a visitor or in another status that requires nonimmigrant intent, at least in the near future.

Conclusion

Having a baby in the U.S., making frequent, extended trips to the country, and applying for a change in status following arrival in another status are not prohibited by U.S. immigration law. Still, if you engage in any of these three things, a U.S. consular officer or customs officer may find that you gamed the immigration system or took unfair advantage of immigration loopholes.

Use proper caution and be aware of the immigration risks and consequences associated with these activities. If you are refused a visa, denied admission or issued an expedited removal order for any of these reasons, consult an experienced immigration attorney to discuss possible remedies.

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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 legal 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.

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Photo by: Meagan