Category Archives: immigration fraud

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 But years ago, my client’s H-1B visa was revoked by the U.S. Customs & Border Protection (CBP) and he was denied entry and allowed to withdraw his application for admission.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, up to 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. 

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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212(d)(3) Nonimmigrant Waiver: When Do You Need It and How Do You Get It?

In this video, immigration attorney Dyan Williams discusses the 212(d)(3) nonimmigrant waiver, including answers to 4 frequently asked questions: do I need a visa with the waiver, do I qualify for the waiver, what must I prove to get the waiver, and how do I apply for the waiver?

For more information, read 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Contact Dyan for advice and guidance on the 212(d)(3) nonimmigrant waiver application process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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Potential Solutions for Visa Refusal or Visa Denial

Some visa refusals and visa denials are proper, such as when you fail to provide the requested documents to prove visa eligibility or when you are inadmissible to the U.S. due to past actions. But when the decision is improper or can be overcome, you may take remedial action if you still want to come to the U.S.

A consular officer’s decision to deny or issue a visa is not subject to judicial review, based on the doctrine of consular non-reviewability. Because consular officers have so much discretion in issuing visa decisions, it’s especially important to address complications from the get-go.

When you’re faced with a visa refusal or denial, your potential solutions include:

1. Refiling for the Nonimmigrant Visa in Section 214(b) Situations

There is no waiver to overcome the INA 214(b) ground of ineligibility (failure to overcome presumption of immigrant intent) in nonimmigrant visa cases. But the finding is not permanent, which means you may later establish nonimmigrant intent by showing a considerable change in circumstances.

When your nonimmigrant visa (e.g. B-1/B-2 visitor visa or F-1/M-1 student visa) is denied due to failure to overcome the presumption of immigrant intent, you will need to reapply for the visa and, at the visa interview, present new, persuasive evidence of strong ties to your home country.

To avoid multiple visa refusals under section 214(b), you must build strong family roots, property ownership, employment ties, and other connections to your country that you cannot abandon and will cause you to depart the U.S. before your authorized stay expires.

In 214(b) visa refusal cases, you should not reapply for the B-1/B-2 visa, for example, until your personal, professional, and financial circumstances have changed significantly. Owning a business, investing in property, having a well-paid, steady job, or starting a family in your country are positive factors.

2. Requesting an Advisory Opinion (Administrative Review)

When your visa denial is based on questions of law, you may request an Advisory Opinion from the Department of State’s Visa Office in Washington D.C. The Visa Office will not review claims that the consular officer made a mistake of fact.

The Visa Office has a dedicated email channel, LegalNet, for you and/or your attorney to request a case-specific response on the interpretation or application of immigration law.

An example is when a person is denied an H-1B or L-1 visa, which allows dual intent, under section 214(b) (failure to overcome presumption of immigrant intent). Another example is when a visa applicant is charged with 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefit), even when there was no providing false testimony or fabricated documents or the misrepresentation was not material and did not affect visa eligibility.

Within seven (7) business days of receiving a proper inquiry, LegalNet will provide notice that the inquiry has been received and is being processed. The complexity of the case and availability of required information affects the time frame for a substantive responses.

LegalNet will provide substantive responses only to the following types of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from the consular post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The substantive response will be a summary of the advisory opinion forwarded to the consulate. Advisory opinions on applications or interpretations of law are binding on consular officers, but consular officers have sole authority to apply the law to the facts.

3. Filing a Motion to Reconsider and Rescind a Section 212(a) Inadmissibility Determination

Although there is no appeal process for a visa denial based on INA section 212(a) inadmissibility grounds, the U.S. Consulate or Embassy may reconsider its decision based on new evidence or legal arguments establishing you actually qualify for the visa.

In immigrant visa cases, the federal regulations under 22 CFR 42.81 allow  you to submit a motion to reconsider within one year of the visa denial to the consulate. No new application or filing fee is required when a timely motion is filed. Motions to reconsider must include relevant documentary evidence and legal claims to overcome the inadmissibility ground.

In nonimmigrant visa cases (except section 221(g) refusals), the only way to have your case reconsidered is to submit a new visa application and, at the visa interview, present a request to reconsider the inadmissibility finding.

It’s appropriate to file a motion to reconsider when the inadmissibility finding is based on a consular officer’s misinterpretation of the facts or law. But when the inadmissibility determination originates from the U.S. Department of Homeland Security (DHS), e.g. U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), the Consulate will generally instruct you to contact those agencies.

4. Applying for a Waiver of Inadmissibility 

When you are truly inadmissible or you are unable to get the erroneous inadmissibility charge vacated by the Consulate, you may apply for a waiver. A waiver grant is not a travel document to enter the U.S. Rather, it allows – but does not guarantee – admission on a Canadian passport (if you are a Canadian citizen) or a visa grant by the Consulate when you are inadmissible to the U.S.

Nonimmigrant waiver 

For nonimmigrant visa applicants, the 212(d)(3) waiver excuses almost all grounds of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S. The only inadmissibility grounds that cannot be excused by the 212(d)(3) waiver involve security and related issues, foreign policy considerations, and participation in Nazi persecutions.

In Matter of Hranka, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. These factors are also described in the Foreign Affairs Manual, which sets forth policies for the Department of State. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

The consular officer must recommend your nonimmigrant waiver request for approval before it is forwarded to the U.S. Customs & Border Protection for a final decision.

Immigrant waiver

For immigrant visa applicants, there are waivers for certain inadmissibility grounds, including fraud or willful misrepresentation, some criminal offenses, and unlawful presence.

You will need to determine whether a waiver is available for the specific section of law that makes you inadmissible. Even when a waiver is available, only certain immigrant visa applicants may qualify for it.

You qualify for the I-601 waiver [INA§ 212(i) waiver] of the lifetime fraud/willful misrepresentation bar under section 212(a)(6)(C)(i) if you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

or

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

You qualify for the I-601 [INA§ 212(a)(9)(B)(v)] waiver of the 3/10 year unlawful presence bar if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

You qualify for the I-601 [INA § 212(h)] waiver of crime-related inadmissibility grounds if you are one of the following:

1. An immigrant who is the spouse, parent, son or daughter of a U.S. citizen or permanent resident, or K visa petitioner, who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

The I-601 immigrant waiver under section 212(h) of the INA excuses  you from the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

The immigrant waiver is not available for all crime-related grounds of inadmissibility. In particular, persons charged with the following are not eligible for the waiver:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

Waiver for prior removal orders (or certain immigration violations)

Advance permission to reapply for admission into the United States is needed when you are inadmissible under sections 212(a)(9)(A)(i)(e.g. expedited removal order) and (ii) (removal order by an Immigration Judge), as well as sections 212(a)(9)(C)(i)(I) (illegal re-entry after accruing more than one year of unlawful presence) and (II)(illegal re-entry following removal order).

When any of these inadmissibility bars apply, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant. For more information on these inadmissibility grounds, read our article, When do you need an I-212 Waiver (and how do you get it)?

The I-212 waiver request may be filed at any time, in conjunction with a visa application, when sections 212(a)(9)(A)(i) and (ii) apply. But when sections 212(a)(9)(C)(i)(I) and (II) apply and you are an immigrant visa applicant, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212.  [Note: As an alternative, if you are a nonimmigrant visa applicant, you may seek a section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole.]

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

Consult an immigration attorney with expertise in visa refusals or denials

When your visa is refused or denied, and you still wish to come to the U.S., you need to contact an immigration attorney to evaluate your visa eligibility, verify whether the consulate has valid grounds to deny the visa, and discuss or pursue possible remedies.

For more information, read our related article, Common Reasons for Visa Refusal or Visa Denial.

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: Anne Worner