Category Archives: waiver

Well-Documented Form I-751 Petition (After Divorce) + Full Preparation for Interview = A True Success Story

A USCIS Field Office in Ohio approved our client’s Form I-751 petition with request for waiver of joint filing requirement, despite her not living with the U.S. citizen (who had petitioned for her CR1 spousal immigrant visa) after she arrived in the United States as a conditional resident.

Her detailed affidavit describing the premarital courtship, married life abroad, and reasons the relationship ended in divorce was key to getting a timely approval. Her being fully prepared for the I-751 interview was another driving factor. 

Divorce and No Joint Residence with U.S. Citizen Petitioner After CR1 Spousal Immigrant Visa was Granted

The couple met in the United States while the client was in lawful, nonimmigrant status. At the end of her stay, they departed to her home country, where they married and lived together for a few months. The U.S. citizen filed an I-130 petition for her, but moved back to the United States before the immigrant visa process was completed.

Their relationship was rocky from the start. Marriage counseling and other good-faith efforts to resolve their marital problems did not help. The U.S. citizen petitioner, however, did not withdraw the I-130 or his I-864 affidavit of financial support.

At the CR1 spousal immigrant visa interview, the U.S. consular officer asked very few questions and granted the application. The client became a conditional resident upon her arrival in the United States. She received a conditional green card set to expire within 2 years because her immigrant status was based on a marriage that was less than two years old.

A few weeks after she landed in the United States, she contacted the U.S. citizen petitioner to let him know she was in the country. He was not interested in maintaining their marriage and asked for a divorce. They went their separate ways when he made it clear the relationship was over.

After three years of being legally married to the U.S. citizen and one year following the grant of her conditional residence, she received the court order terminating the marriage.

Individual Form I-751 Petition with Request for Waiver of Joint Filing Requirement

The client contacted me for the first time after she arrived in the United States as a conditional resident and before the divorce occurred. In the consultation, I explained that to get the conditions removed and maintain lawful permanent residence, she normally needed to file a joint I-751 petition with the spouse before the two-year card expires, and no earlier than 90 days before the expiration.

I noted there are only three types of waivers (exceptions) to the joint filing requirement. We determined the most appropriate option was to file for the waiver based on divorce (good faith/divorce waiver), after the divorce proceeding was completed.

I counseled her to start gathering evidence of their married life, including documents showing joint residence abroad, photographs of the two of them together, text messages and emails they exchanged with each other, third-party declarations attesting to the good faith nature of their marriage, a supporting affidavit from the U.S. citizen petitioner, and her own affidavit describing in detail their relationship history and the reasons for the divorce.

Following the divorce, the client contacted me again for full representation in her Form I-751 petition with request for waiver of joint filing requirement. We submitted the petition with the documentary evidence she had collected based on my advice. I included a legal memorandum explaining how she qualified for the I-751 waiver, including the concrete steps she took to salvage a marriage that was beyond repair.

Removal of Conditions on Permanent Residence Following Attorney Appearance at Out-of-State I-751 Interview

Although Dyan Williams Law PLLC is based in Minneapolis, Minnesota, I represent clients from all across the United States and around the world in U.S. immigration matters, which is governed by federal laws, regulations and policies.  I-751 interviews are scheduled at the USCIS Field Office with jurisdiction over the residence of the applicant who, in this case, is in Ohio. 

The day before the I-751 interview, I flew out to Ohio to prepare the client for possible questions from the USCIS officer and address concerns she had about the pending petition. 

When we appeared for the I-751 interview, the USCIS officer asked questions about when and how the couple met, their life together abroad, and the circumstances that led to the divorce.

Because the officer had reviewed the client’s detailed affidavit prior to the interview, she already had a good understanding of the relationship history. The officer also took note of the U.S. citizen petitioner’s affidavit confirming the marriage was based on love and intent to build a life together, but ultimately he no longer wanted to be in the relationship. 

At the end of the interview, the USCIS officer informed us she had no issues with the I-751 petition. In essence, she determined the marriage was entered into in good faith, even though it did not last and  there was no joint residence after the CR1 immigrant visa was granted.

The USCIS officer handed us a Notice of Interview Results stating, “Your case is being held for review. At this time, USCIS does not require any further information or documents from you…” She added that we would receive, in the mail, a decision or a request for evidence if more information or documents was needed. 

Within a week, we received the USCIS Field Office’s Notice of Removal of Conditional Basis of Lawful Permanent Resident stating the (10-year) green card would be mailed and the request for removal of conditions on permanent residence has been approved. The USCIS National Benefits Center in Lee’s Summit, Missouri also issued the official Form I-797C, Notice of Action approving the I-751 petition. The applicant received her 10-year green card directly from USCIS. 

Divorce from the U.S. Citizen Petitioner and Lack of Joint Residence During Marriage Make it More Difficult to Get an I-751 Approval

A combination of factors made it possible for the applicant to get an I-751 approval even though she divorced the U.S. citizen petitioner and did not live with him after she arrived in the United States on the CR1 visa. Without proper counselling, an I-751 applicant in this type of situation is highly likely to get a denial and end up in removal proceedings before the Immigration Court.  

The I-751 applicant made a wise decision to discuss her options with skilled counsel prior to getting divorced and before her conditional residence expired. My guidance helped her to know when to initiate divorce proceedings, what documentary evidence to gather, and how to file for removal of conditions on residence after divorce. 

The legal memorandum submitted with the I-751 petition and counsel’s preparation for and appearance at the interview were also significant. If the applicant had not submitted her detailed affidavit with an explanation letter from counsel in support of the I-751 petition, and had no counsel present at the interview, the questions from the USCIS officer would have likely been a lot tougher. 

The applicant had the backup option of filing for a green card based on her second marriage to another U.S. citizen. This current marriage is solid and includes joint residence throughout the entire marital relationship. But I explained that a new I-130 petition and green card or immigrant visa application only had to be filed if her I-751 petition was denied and her permanent residence was terminated. 

Instead of needing to start from scratch, she received an I-751 approval and had the conditions on her permanent residence removed. She remains a lawful permanent resident who will meet the continuous residence requirement for naturalization (U.S. citizenship) within 5 years of when she was initially granted the (2-year) green card. 

This is a true success story. 

Cheers,

Dyan Williams

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

###

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.

SUBSCRIBE           CONTACT

 

Continue reading

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.

Normally, a pending petition must be denied or an approved petition must be revoked if the petitioner dies before the beneficiary has already obtained the green card, based on federal regulations. But INA 204(l) preserves U.S. immigration benefits for certain surviving relatives with pending or approved petitions.

A December 16, 2010 USCIS Policy Memorandum, titled Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, outlines who is protected by section 204(l) and how the relief works.

Who is Protected by Section 204(l)?

Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States. It provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or other principal applicant dies.

You may be eligible for 204(l) relief if you are a:

• Principal or derivative beneficiary of a pending or approved I-130 family-based petition, when the petitioner died;

• Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died;

• Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died;

• Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died;

• Derivative of a T or U nonimmigrant visa holder (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5), admitted as a derivative, and the principal (T-1 or U-1) visa holder has died;

• Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) has died.

Residence Requirement

Certain petitions have more than one beneficiary. For 204(l) relief to apply, at least one beneficiary or derivative beneficiary must be residing in the United States at the time of the death and continues to reside in the United States. If one beneficiary meets the residence requirement, all the beneficiaries can benefit from section 204(l) relief.

Residence is your primary home or your “principal, actual dwelling place in fact, without regard to intent.” Residence is not the same as physical presence or as having lawful nonimmigrant status in the United States. You may qualify while briefly abroad if you can show that your primary home is in the United States. Incidental travel for participating in business trips, taking a vacation, or visiting family abroad does not affect 204(l) eligibility.

Admissibility Requirement

204(l) applicants may be found inadmissible under INA 212 at the time of the immigrant visa or adjustment of status interview. Inadmissibility grounds include INA 212(a)(4)(public charge), INA 212(a)(9)(B)(unlawful presence), and INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits).

Family-based applicants are normally required to submit a Form I-864, Affidavit of Support, or Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, to show they will not become a public charge to the United States. The death of the petitioner does not change this requirement.

If the petitioner dies, there has to be a Form I-864 from a substitute sponsor who is a U.S. citizen or lawful permanent resident, at least 18 years old, and the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian of the applicant. Otherwise, a Form I-864W may be submitted when appropriate.

You may still apply for inadmissibility waivers that require “extreme hardship to a qualifying relative” — such as the INA 212(a)(9)(B)(v) waiver for unlawful presence and the INA 212(a)(6)(C)(i) waiver for fraud or willful misrepresentation — if the qualifying relative is also the relative who died. USCIS will consider the death of a qualifying relative as the “functional equivalent” of a finding of extreme hardship, i.e. USCIS will assume that the death of the qualifying relative amounts to extreme hardship for waiver purposes.

Your case, however, must still warrant the favorable exercise of discretion (positive factors outweigh the negative factors) for USCIS to grant the waiver. Furthermore, you must have a qualifying relative who was already a U.S. citizen or permanent resident at the time of the death to be eligible for the waiver. If the deceased relative is not a qualifying relative for waiver purposes, you still need a qualifying relative to be eligible for the waiver. For example, if the principal beneficiary of an I-130 petition dies before he becomes a permanent resident, his spouse (derivative beneficiary) may lack a qualifying relative to apply for a waiver if she is found inadmissible.

“Public Interest” Standard and Favorable Exercise of Discretion

Even when section 204(l) applies, USCIS may still deny the petition, as a matter of discretion, if the approval would not be in the “public interest.” This exercise of discretion is not subject to appeal, although USCIS may review a timely motion to reopen or motion to reconsider.

USCIS has stated, “USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to section 204(c) of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. ”

Adjustment to permanent resident status, through the filing of a Form I-485 application, is also a discretionary relief that USCIS may deny as a matter of discretion. Furthermore, certain applicants are not eligible at all for adjustment and must depart the United States to apply for an immigrant visa at the U.S. Consulate abroad.

What is the Effective Date of Section 204(l)?

Section 204(l) became law on October 28, 2009. The provision applies only to petitions and applications adjudicated on or after that date. It applies to cases where the petitioner or qualifying relative died before October 28, 2009, but the petition or application was pending on that date or adjudicated after that date.

USCIS has stated it will allow untimely motions to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009 if 204(l) would permit approval. If USCIS denies a petition or application on or after October 28, 2009 without considering whether 204(l) applies, the agency must reopen the case on its own motion.

How to Apply for 204(l) Relief

There is no specific application form to submit or filing fee to pay to request 204(l) relief. To apply for 204(l) benefits, you should submit a letter to USCIS explaining your eligibility and provide supporting documents. If a petition is pending, you need to ask for an approval under 204(l) despite the death. If the petition was approved prior to the death, you need to request the reinstatement of the approval under 204(l).

USCIS instructs applicants to include the following with a 204(l) request:

• Full name of the deceased relative, the principal applicant and any derivative beneficiaries

• Any A-numbers of the deceased relative, the principal applicant and any derivative beneficiaries

• The receipt number for the underlying petition or application

• The relative’s death certificate, plus certified English translation if document is in a foreign language

• Proof of residence in the United States at the time of the death up until the present time by at least one beneficiary (e.g. rental lease or mortgage, utility bills, school records, or pay stubs.)

• Form I-864, Affidavit of Support, by a substitute sponsor, or a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, if applicable.

To determine where and when to file the section 204(l) request, you may refer to the USCIS If-Then chart on its website, which is replicated below:

IFTHEN

Your visa petition (e.g., Form I-130 or Form I-140) or Form I-730 was pending when your relative died and at least one beneficiary, or derivative beneficiary, resided in the United States when your relative died and continues to reside in the United States

Send your written request to the USCIS office currently processing your case (the address is on the receipt notice (Form I-797) or, if USCIS transferred the case to a different office, send your request to the new office listed on the transfer notice)

Your petition was already approved when your relative died AND you are not ready and/or able to file Form I-485 yet
Send your written request to the office that approved your petition

Your petition was already approved when your relative died AND you have a visa available and are ready to file Form I-485

Send your written request with your Form I-485 package per Instructions for Form I-485

You have already filed Form I-485 (whether or not your petition was pending or already approved)

Send your written request to the USCIS office having jurisdiction over your application

You are in T or U nonimmigrant status

Send your written request to the Vermont Service Center
You are in asylee status



Send the written request with your Form I-485 package when you file for adjustment of status, if applicable, per Instructions for Form I-485

Humanitarian reinstatement is not be confused with 204(l) relief. If, however, you believe the regulations allowing humanitarian reinstatement also apply to you, you should submit a single written request asking USCIS for both types of relief.

Consult a Qualified U.S. Immigration Attorney

Because there is no standardized application form, there is no means for USCIS to issue a receipt notice for a 204(l) request for relief. It is difficult for applicants to track progress or receive updates on such cases.

Work with a qualified U.S. immigration attorney to prepare and file a clear, properly documented 204(l) request with USCIS. The attorney can also help you notify the U.S. Department of State that you are asking for this relief from USCIS, if you will be applying for an immigrant visa at the U.S. Consulate instead of seeking to adjust to permanent resident status within the United States.

For information on other possible remedies for surviving relatives, read our related articles:

Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

###

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.

SUBSCRIBE           CONTACT

Photo by: Tumisu



Approval of I-601A Provisional Unlawful Presence Waiver + Immigrant Visa Grant = A True Success Story

U.S. Citizenship & Immigration Services (USCIS) approved the Form I-601A, Application for Provisional Unlawful Presence Waiver, of the spouse of a U.S. citizen after denying his two earlier requests. On the first try, he had prior counsel’s help. His second attempt was made pro se. With our representation in the third and final I-601A application, he persuaded USCIS to grant the waiver on the merits, based on the extreme hardships his U.S. citizen spouse would suffer if he were denied lawful admission to the United States. He further received an immigrant visa within three weeks of attending his interview at the U.S. Consulate abroad.

Problem: Unlawful Presence Bar

Section 212(a)(9)(B)(i) of the Immigration & Nationality Act (INA) states that a person who accrues unlawful presence in the U.S. for more than 180 days, but less than one year, and then departs the U.S. prior to commencement of removal proceedings, is barred from re-entering the country for three years.  The bar to re-entry is 10 years if the unlawful presence lasted one year or more. The 3/10 year unlawful presence bar is triggered when the person departs the U.S. – even if it is to legalize his status by applying for an immigrant visa at the U.S. Consulate overseas.

Our client could not adjust to permanent resident status within the United States, despite being the beneficiary of an approved I-130 immigrant petition filed by his U.S. citizen spouse. The reason is he entered the United States without proper inspection and did not meet the lawful admission requirement to file for a green card inside the country. A departure from the U.S. was necessary for him to get his immigrant visa and then return as a permanent resident.

Because he had been in the U.S. for almost 20 years without authorization (by the time the third waiver request was filed), he was subject to the 10-year unlawful presence bar to re-entry. USCIS’ grant of the I-601A provisional waiver gave him some assurance – but no guarantee – that he would be issued the immigrant visa at the U.S. Consulate. The I-601A waiver covers only the unlawful presence bar, so it is subject to revocation by the U.S. Consulate if other inadmissibility grounds apply.

In its decisions denying the previous two I-601A waiver requests, USCIS stated that prior to his last illegal re-entry, the applicant may have entered the U.S. without inspection and admission or parole on more than one occasion and he may have been unlawfully present in the U.S. for more than one year during prior stays.

I advised the applicant and his spouse that if he had indeed illegally re-entered the country after accruing more than one year of unlawful presence, he would have a permanent bar under INA 212(a)(9)(C). While a person may file a separate Form I-212 application to be excused from this permanent bar, he may not do so until he has been outside the United States for at least 10 years.

After being advised of the risk of being found inadmissible under INA 212(a)(9)(C), in addition to INA 212(a)(9)(B)(i), the applicant agreed to still move forward with the I-601A waiver application and depart the U.S. for consular processing.

Solution: Provisional Waiver

To support the I-601A waiver application, I submitted a legal memorandum clarifying the applicant had just one illegal entry to the United States and was subject only to the 10-year unlawful presence bar. I pointed out that the earlier entry date on his Temporary Protected Status (TPS) application was filled out in error by a notario – without his knowledge and consent – to meet the TPS eligibility requirement. In the TPS request, he did not provide any evidence or information reflecting that earlier entry date because it did not actually occur.

I also counseled the applicant and his spouse on the documentary evidence and information to submit to meet the extreme hardship requirement. This came with challenges because the spouse did not have any serious medical condition, life-threatening illness, or other individual factor to show she would face extreme hardship due to her staying in the U.S. without her spouse or relocating abroad to be with him.

The legal memorandum outlined a multitude of factors and the totality of the circumstances to satisfy the extreme hardship standard. For instance, we described the spouse’s vulnerability to psychological problems, her reliance on him to care for their three young children, and the poor living conditions and high crime rate in his home country.

Outcome: Waiver Approval + Immigrant Visa Grant

Within four months of receiving the Form I-601A waiver application, USCIS approved it. I next provided further counseling to the applicant and his spouse on the Immigrant Visa application process and what to expect at the visa interview.

As planned, the applicant departed the United States to appear for his immigrant visa interview at the U.S. Consulate in his home country. No additional inadmissibility grounds, such as the INA 212(a)(9)(C) bar, were found by the Consulate. The I-601A waiver excused him from the 10-year unlawful presence bar and allowed him to receive the immigrant visa.

His spouse sent me a note confirming he was admitted to the United States with his immigrant visa and was granted lawful permanent residence. She wrote, “We thank you for your diligent work and your representation. I am very satisfied with your legal services and will refer you with no hesitation.

The two prior I-601A denials and possible INA 212(a)(9)(C)(i) bar did not deter the applicant from pursuing the waiver a third time before finally receiving it and the immigrant visa 11 years after the I-130 had been filed. Thankfully, he was able to return home to his family and continue his life in the U.S. as a permanent resident, after living in the country for almost 20 years without status.

Representing the applicant in his third and final I-601A waiver request and guiding him through the Immigrant Visa process led to true success.

Cheers,

Dyan Williams

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

###

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.

SUBSCRIBE           CONTACT

Photo by: freephotocc

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

###

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.

SUBSCRIBE           CONTACT

Photo by: Alexas_Fotos

Lifting of INA 212(a)(2)(A)(i)(I)(Crime-Related/CIMT) Bar + J-1 Visa Approval = A True Success Story

Within 16 days of my client’s visa interview, the U.S. Embassy granted him a J-1 exchange visitor visa after it had denied his prior application under INA 212(a)(2)(A)(i)(I)(crime-related bar). In the previous visa refusal, the Embassy found him to be permanently inadmissible because he was charged with two offenses, forgery and larceny, which are normally considered Crimes Involving Moral Turpitude (CIMT).

Based on the Motion to Reconsider and Rescind Inadmissibility Determination that I prepared for the client, the Embassy lifted the lifetime bar and issued the visa without requiring a 212(d)(3) waiver of inadmissibility.

Under INA 212(a)(2)(A)(i)(I), any non-U.S. citizen convicted of, or who admits committing acts that constitute the elements of a crime involving moral turpitude (other than a purely political offense), is inadmissible.  For the CIMT bar to apply, an actual conviction is not required when the person explicitly admits to committing all elements of the offense, under oath, including to a U.S. consular officer or customs officer during an interview.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

The petty offense exception applies only if the person committed just one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed (if the person was convicted of the offense).

The client contacted me to evaluate his problem and recommend a solution after he had been denied the J-1 visa due to crime-related grounds. During the consultation, I learned that while he had been arrested and charged with two offenses (forgery and larceny) for one single incident, he was not convicted of either.

The police report, however, contained the client’s written Voluntary Statement admitting he had made a photocopy of his metro-train pass and presented the fake ticket to the train conductor to save money when he was low on cash. Meanwhile, he gave his real train pass to his travel companion to use.

In the legal memorandum supporting the Motion to Reconsider and Rescind Inadmissibility Finding, I emphasized that my client was never convicted of forgery or larceny. The charges were dismissed after he was placed in an alternative rehabilitation program, which did not require him to enter a guilty plea. I also argued that his Voluntary Statement in the police report did not amount to a legally valid admission to committing a CIMT. Thus, the Embassy’s crime-related inadmissibility finding was made in error.

Although my client qualified for the 212(d)(3) nonimmigrant waiver of inadmissibility, the U.S. Customs & Border Protection, Admissibility Review Office normally takes several months to process these requests – even after the Embassy makes a favorable recommendation. The waiver is also valid for a limited period (currently, up to 60 months).

Furthermore, the crime-related bar would remain if left unchallenged. If he were to seek permanent residence in the future, he would require a Form I-601/INA 212(i) immigrant waiver as long as the crime-related bar existed. This immigrant waiver of inadmissibility has much stricter eligibility criteria and higher evidentiary standards.

My client agreed that the Motion to Reconsider and Rescind Inadmissibility Determination was the primary solution and the 212(d)(3) waiver was the alternative remedy. Within one month of accepting his request for representation, I prepared the Motion with a legal memorandum and documentary evidence demonstrating the CIMT bar did not apply or,  at the very least, the 212(d)(3) waiver should be granted.

When my client appeared for his visa interview, the consular officer refused to accept the legal memorandum and accompanying exhibits. Instead, she took only two documents showing the charges had been dismissed. The problem was the Embassy had the same or similar information when it denied the prior J-1 visa application. My client was worried the Embassy would deny the new visa request because it had received no new information since the last denial.

To fully explain the situation, I forwarded the legal memorandum and exhibits to the Embassy in a follow-up email correspondence. I pointed out that my client has no criminal convictions, did not enter any guilty plea, and did not make any legally valid admissions to committing a  CIMT. I also noted that even if his Voluntary Statement to the police counted as a formal admission (which was not the case), the most he admitted to was forgery (not larceny) and he would thus, at a minimum, qualify for the petty offense exception to the CIMT bar. 

Eleven (11) days after I submitted the follow-up correspondence, including the legal memorandum and exhibits, to the Embassy, the J-1 visa was issued to my client. This allowed him to return to the U.S. and timely begin his J-1 exchange visitor program.

While my client was stuck overseas, waiting for his J-1 visa problem to be fixed, he and his wife communicated with me through emails and video calls.  Despite being in separate countries, we formed a strong attorney-client relationship and effective partnership that resulted in a true success story.

Cheers,

Dyan Williams

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

###

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.

SUBSCRIBE           CONTACT

Photo by: Free-Photos