Category Archives: waiver

U.S. Immigration Risks in Claiming F-1 OPT or H-1B Status When There is No Real Job

Are you an F-1 student or H-1B worker who claimed to work for a U.S company when there was no actual job?

Did the company issue W2s or pay stubs showing you were paid when you really were not?

If you seek to maintain F-1 OPT, F-1 STEM OPT or H-1B status through employment – when there is no real job – you run the risk of being found inadmissible under INA 212(a)(6)(C)(i). This law states that you have a lifetime bar if you engage in fraud or willful misrepresentation of a material fact to obtain a U.S. immigration benefit.

Being inadmissible disqualifies you from getting a change or extension of status, a new visa, or lawful entry to the United States. While a 212(d)(3) nonimmigrant waiver or I-601/INA 212(i) immigrant waiver might solve the issue, it doesn’t work in every case. It’s best to avoid a fraud/misrepresentation charge altogether.

Episode 11 of The Legal Immigrant podcast covers:

1) The different contexts in which U.S. Customs & Border Protection, USCIS and U.S. Embassies and Consulates can make the 212(a)(6)(C)(i) charge 

2) F-1 OPT and STEM OPT rules to follow

  • Time restrictions for submitting Form I-765, application for employment authorization
  • Unemployment grace period of 90 days for F-1 OPT and an additional 60 days for F-1 STEM OPT (i.e. total of 150 days during entire post-completion OPT period)
  • F-1 OPT and F-1 STEM OPT must involve at least 20 hours of work related to field of study
  • F-1 may include a paid job, a paid internship, an unpaid internship, volunteer work, contract work, agency work, or self-employment
  • F-1 STEM OPT must include paid employment with a company that is enrolled in the E-Verify program

3) Immigration fraud investigations and related problems

  • Many F-1 and H-1B visa holders, particularly from China, get their visas revoked or denied or are refused entry to the United States because they had listed Findream or Sinocontech to receive work authorization
  • F-1 and H-1B visa holders, most from India, face U.S. immigration and visa problems if they listed companies like Integra Technologies LLC, AZTech Technologies, Andwill, Wireclass or Tellon Trading to obtain OPT, STEM OPT or other work permit
  • Problems include refusal of entry to the US, visa denials, visa revocations, and denials of change/extension of status requests. In some cases, a 212(a)(6)(C)(i) charge is made.

4) 3 key indicators that the petitioner or employer may be flagged 

  • Does the company require you to pay a training fee, including before it issues the job offer letter or Form I-983 training plan? 
  • Does the company fail to assign roles and responsibilities as stated in the job offer letter, Form I-983 for STEM OPT, or Form I-129 Petition for H-1B? 
  • Does the company offer employment verification, pay stubs and W2s when there was actually no real work or no pay received for an F-1 STEM OPT or H-1B position?

5) The longer you are associated with a flagged company, the more U.S. immigration risks and visa problems you will have

  • As soon as you find out there’s no real job, move on quickly. 
  • You might be tempted to use fake employment to maintain status or stop the accrual of unlawful presence. But you run the risk of not only falling out of status, but also being charged with a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). 
  • US immigration agencies are less forgiving when it comes to a fraud or misrepresentation charge because it means you’ve been found to have lied to the U.S. government to gain an immigration benefit. 

Subscribe to The Legal Immigrant podcast at Apple Podcasts or other apps.

If you prefer to read, download transcript of episode 11.

For more information, see:

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars

On February 18, the U.S. Citizenship Act of 2021 was introduced in the House by California Congresswoman Linda Sánchez and in the Senate by New Jersey Senator Robert Menendez. The White House first announced the bill on January 20, which was the first day of the Biden Administration.

The bill is 353 pages long. It contains sweeping provisions that, if passed, will overhaul many parts of the U.S. immigration system.

It seeks to give certain undocumented immigrants Lawful Prospective Immigrant (LPI) status and an 8-year path to U.S. citizenship; allow eligible DREAMERS, TPS holders and farmworkers to immediately apply for permanent residence; repeal the 3/10 year unlawful presence bar under INA 212(a)(9)(B) and the permanent bar under INA 212(a)(9)(C); and create an exception to the misrepresentation of citizenship bar for any person who was under age 21 when the false claim was made.

In Episode 8 of The Legal Immigrant podcast, I focus on the following provisions in the reform bill:

1. Section 1101, Adjustment of Status of Eligible Entrants to that of Lawful Prospective Immigrant (LPI), and Section 1102, Adjustment of Status of Lawful Prospective Immigrants

  • Provides earned 8-year path to citizenship for certain undocumented immigrants who have been present in the U.S. on or before January 1, 2021, and certain persons who were removed from the U.S. on or after January 20, 2017, but were inside the U.S. for at least 3 years prior

2. Section 3104, Promoting Family Unity

  • Repeals the 3/10 year bar under INA 212(a)(9)(B) due to accrual of more than 180 days of unlawful presence in the U.S. prior to departure
  • Eliminates the permanent bar under INA 212(a)(9)(C) due to illegal re-entry following more than 1 year of unlawful presence or following a removal order 
  • Creates exception to the false claim to U.S. citizenship bar under INA 212(a)(6)(C)(ii) for persons who made the misrepresentation when they were under age 21

Key points to consider: 

1.  The Immigration Reform bill is bicameral (introduced in the House and Senate on February 18), but is not bipartisan (sponsored by Democrats only and no Republicans). 

The comprehensive nature of the bill and the big changes proposed will make it harder to get the necessary votes. Moderation could be needed especially when Democrats have a slight margin in the House and a 50-50 split in the Senate. Vice President Harris has the tie-breaking vote.  But a supermajority of 60 senators is normally needed to pass major legislation in the Senate.

To move forward, the full legislation might have to be split up into separate smaller bills, or get added to the budget reconciliation process. Some Republicans have voiced opposition to the Biden Administration’s approach to immigration reform. 

2.   Even if the law is passed and signed by the President, it may take up to a year for the new rules to be drafted.  And it will take some time for the new application processes and forms to be rolled out and implemented. The applicant will also have to gather documents, including evidence of identity, proof of physical presence in the U.S. for the period that is required by law, and supporting records for any waiver of inadmissibility that is needed. 

3.     If you already qualify for another way to immigrate to the United States, such as by employment-based immigration or by a legal, bona fide marriage to a U.S. citizen, it’s better to use the existing path instead of wait for the results of this reform bill. 

4.     You must not deliberately fall out of status or illegally re-enter the U.S in the hope that you will be eligible for LPI status or other immigration benefits that have yet to be passed into law. Unlawful presence and illegal re-entries to the U.S. continue to have serious immigration consequences unless the law is amended to get rid of them.

Resources cited: 

For more information on inadmissibility waivers, see:

Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

When do you need an I-212 Waiver (and how do you get it)?

What should you do to get your I-212 Waiver?

When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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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 your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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The Legal Immigrant PODCAST is Now Up!

The month of January signals new beginnings and fresh starts. In December 2020 – with the new year approaching – I finally took steps to launch The Legal Immigrant podcast.

Through success stories and Q&As, the show will cover U.S. immigration problems that we help our clients solve.

Episodes 1 and 2 are now up. The podcast is available HERE  on the show’s website. Or find it on podcast apps like Apple Podcasts, SpotifyPlayer FM, and Listen Notes or via RSS feed.

At the start of 2020, I had tentative plans to launch a podcast. As a solo immigration lawyer and a productivity coach, I was conflicted on whether to start one or two podcasts. Over time, this project moved to the backburner while COVID-19, civil unrest, school closures, the November Elections, and other changes were at front and center.

Although the U.S. and other parts of the world are still not back to pre-COVID-19 “normal,” we can still attend to the essentials. We have a unique opportunity to build resilience, show grace to others, and learn new ways to maintain human connection.

Besides launching The Legal Immigrant podcast, I started another podcast, The Incrementalist. This productivity show will discuss how to make big changes or finish a big project in small steps, with the Incrementalist approach.

There’s a content strategy to release new episodes over the coming weeks. It will take systems – not goals – to keep the shows going. Stay tuned!

In the meantime, check out the first two episodes of The Legal Immigrant. If you find the podcast helpful, please share it with others. And subscribe so you don’t miss new episodes. 

And if you’d like to check out my other podcast, The Incrementalist, click HERE for the show’s website.

Your downloads, shares and subscriptions will help to grow the shows. In return, I will aim to provide valuable content and build connection with listeners through podcasting.

Thank you for your support and audience.

All the best in 2021,

Dyan Williams

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Removal of INA 212(a)(6)(C)(i) Bar + H-4 Visa Grant = A True Success Story

A U.S. Consulate granted the H-4 spouse visa to our client, after agreeing to remove the INA 212(a)(6)(C)(i) charge against her. This permanent bar was made 10 years earlier, when she applied for an Immigrant Visa sponsored by her prior U.S. citizen spouse.

A 212(d)(3) nonimmigrant waiver is the more common fix, but does not get rid of the bar. In this case, I advised the applicant to file a motion to reconsider and rescind the inadmissibility charge, instead of ask for a 212(d)(3) waiver with the visa. The facts and law did not support the Consulate’s finding that she used fraud or willfully misrepresented material facts to obtain a U.S. immigration benefit.

Problem: INA 212(a)(6)(C)(i) Charge is a Permanent Bar

In the CR1 Immigrant Visa refusal, the U.S. Consulate found that my client had willfully misrepresented a material fact in her prior request for a K-3 nonimmigrant visa. The K-3 allows the spouse of a U.S. citizen to enter the U.S. with temporary status and then apply for a green card through Form I-485 adjustment.

According to the Consulate, she had falsely claimed to be married to the U.S. citizen petitioner when she really was not. It reasoned that her Hindu marriage — at the time she applied for the K-3 visa — was not legally valid because their marital ceremony did not include the statutorily recognized rituals, Saptapadi and/or Agni Pheras.

The couple chose to leave out these rituals for personal reasons. They received a marriage certificate from the government authorities based on the ceremony that was performed. They did not expect the U.S. Consulate to question the validity of the marriage due to the missing ceremonial rituals.

At the K-3 visa interview, the consular officer instructed the applicant to complete a new marital ceremony with all the necessary Hindu marriage rituals. It issued a visa refusal notice stating the petition was invalid and would be returned to USCIS for revocation.

After following the Consulate’s instructions, the U.S. citizen filed a second I-130 petition to restart the process. The beneficiary later applied for the Immigrant Visa with the understanding that the new marriage met the Consulate’s requirements.

Instead of granting the CR1 visa, the U.S. Consulate denied it under INA 212(a)(6)(C)(i). The Consulate found the applicant had lied about her marital status in the K-3 visa request because she did not have a legal marriage to the petitioner at the time. She next filed a Form I-601, Application for Waiver of Inadmissibility with USCIS, as instructed by the Consulate.

A year later, the I-601 waiver request was denied. USCIS found there was insufficient evidence of extreme hardship to the U.S. citizen petitioner if the applicant did not immigrate to the United States. The separation led the marriage to fall apart and end in divorce.

Several years later, the applicant entered into a legal, bona fide marriage to an H-1B visa holder. The couple then contacted me for help in getting the H-4 visa at the U.S. Consulate.

I confirmed that section 212(a)(6)(C)(i) is a lifetime inadmissibility bar. The H-4 visa could be granted only if the U.S. Consulate agreed to remove the bar or the U.S. Customs & Border Protection (CBP), Admissibility Review Office (ARO) issued a 212(d)(3) waiver with the Consulate’s recommendation.

Solution: Motion to Reconsider and Rescind Inadmissibility Bar in H-4 Visa Request

With my guidance, the couple decided to ask the U.S. Consulate to remove the section 212(a)(6)(C)(i) charge and grant the H-4 visa, without requiring the 212(d)(3) waiver.

To support the Motion to Reconsider, I counseled the H-1B spouse and the H-4 applicant on the written testimonies and documentary evidence to present to the U.S. Consulate. I also prepared a legal memorandum explaining why the section 212(a)(6)(C)(i) bar did not apply to this case.

At the visa interview, the applicant was questioned about the prior marriage that led to the inadmissibility bar. To show the consular officer that the bar was made in error, she presented the Motion to Reconsider, including my legal memorandum and her affidavit. The Consulate accepted her documents and placed the case in 221(g) administrative processing.

After receiving my follow-up inquiry, the Consulate scheduled the applicant for a second interview. This was three months after her first interview. She answered more questions on her marriage to the H-1B visa holder. She also submitted more evidence related to the marriage in response to a second 221(g) notice.

Six months after the first interview, the Consulate issued a notice stating the applicant was eligible for a waiver of inadmissibility. I then followed up with the Consulate requesting again they review the Motion to Reconsider and lift the section 212(a)(6)(C)(i) bar.

After several more months of administrative processing and follow-up inquiries, the Consulate issued a notice stating a new waiver was in process because the prior waiver had expired.

At that point, I filed a request with the Visa Office, U.S. Department of State, asking it to counsel the U.S. Consulate to reconsider the inadmissibility charge, instead of require a 212(d)(3) waiver. The Visa Office contacted the Consulate and began to investigate my inquiry.

Outcome: Removal of Misrepresentation Bar and H-4 Visa Grant

A year after the applicant had attended her first H-4 visa interview, the U.S. Consulate agreed to remove the section 212(a)(6)(C)(i) bar. The Visa Office sent me an email stating the Consulate would contact the applicant with further instructions on her H-4 visa request.

Despite the long wait, my client was happy to have the bar lifted and to receive her H-4 visa without needing a 212(d)(3) waiver. The visa was marked with a “clearance received” annotation. Because her spouse was already in the United States in H-1B status, she was excepted from Presidential Proclamation 10052, which placed COVID-19 travel restrictions on nonimmigrant visa applicants.

With the removal of the 212(a)(6)(C)(i) charge, my client will not a need a 212(d)(3) waiver to extend her H-4 status or to get a new nonimmigrant visa. She also will not require a Form I-601/INA 212(i) waiver to immigrate to the U.S. with her husband, who may apply for permanent residence through his U.S. employer.

The H-4 applicant, her H-1B spouse and I communicated by emails and telephone calls. I had one in-person meeting with the H-1B spouse for the initial consultation. With effective collaboration, we convinced the U.S. Consulate to remove the (6)(C)(i) bar — which was made a decade ago — and grant the H-4 visa. This 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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Intro & Outro Music by: Sebastian Brian Mehr