Category Archives: willful misrepresentation

USCIS Rescinds INA 204(c) Charge + U.S. Consulate Vacates INA 212(a)(6)(C)(i) Finding in K-1 Fiancé Visa Case= A True Success Story

USCIS approved the Form I-129F K-1 fiancé petition of our U.S. citizen client, after issuing a Notice of Intent to Deny it under INA 204(c). In the NOID, USCIS claimed her foreign national fiancé entered a prior sham marriage to a Form I-485 green card applicant solely to gain permanent residence as a derivative beneficiary.

As counsel, we filed a Response to the NOID, with documentary evidence and legal argument demonstrating the prior marriage was real but ended because the parties grew apart. Eight months later, USCIS issued a Form I-797, Approval Notice for the I-129F petition, which cleared the way for the beneficiary to apply for the K-1 visa.

When the K-1 applicant appeared for his visa interview, however, the U.S. Consulate issued a refusal notice under INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits). It had concerns over the prior marriage, even though USCIS had already resolved this issue in the applicant’s favor.

As counsel, we submitted a Motion to Reconsider and Rescind the section 212(a)(6)(C)(i) Inadmissibility Finding, with documentary evidence and legal argument showing the K-1 visa applicant had never used fraud or willful misrepresentation of material facts in any applications to receive U.S. immigration benefits. We further pointed out the (6)(C)(i) finding conflicted with USCIS’ approval of the Form I-129F petition, after it dropped the 204(c) charge.

One week later, the U.S. Consulate issued an email granting the Motion and provided further instructions for the applicant to collect his K-1 visa.

USCIS Charges Beneficiary with INA 204(c)/Marriage Fraud Bar in Form I-129F Petition

Section 204(c) of the Immigration & Nationality Act prohibits USCIS from approving a visa petition (e.g. Form I-129F or I-130) if the beneficiary attempted or conspired to enter a marriage for the purpose of evading U.S. immigration laws. If there is substantial and probative evidence of such an attempt or conspiracy in the beneficiary’s file – regardless of whether the benefit was received – USCIS will deny the petition under 204(c).

In its Notice of Intent to Deny our client’s Form I-129F petition, USCIS claimed it was apparent the beneficiary entered a prior sham marriage to a Form I-485 green card applicant for the sole purpose of circumventing immigration laws. USCIS determined that, as such, it was prohibited from approving the petition under 204(c).

The NOID marked the first opportunity to respond to the allegations of a prior sham marriage. In its earlier Request for Evidence (RFE), USCIS had asked only for proof of a real relationship and engagement between the couple. There was no mention of the 204(c) bar. The petitioner responded to the RFE on her own and then USCIS took several months to issue the NOID on section 204(c) grounds.

USCIS Vacates INA 204(c) Charge and Approves Form I-129F Petition Based on NOID Response

The petitioner and beneficiary next contacted Dyan Williams Law for representation in addressing the NOID. Within 30 days, we filed a timely and persuasive Response to the NOID, which contained credible testimonies, objective evidence and legal argument establishing the beneficiary and his prior spouse entered a valid, good-faith marriage, before it ended due to unresolved differences.

After receiving the Response, USCIS agreed there was no substantial and probative evidence to sustain the 204(c) finding and approved the Form I-29F petition. The parties then consulted with Dyan Williams Law to complete the K-1 visa application at the U.S. Consulate.

U.S. Consulate Issues K-1 Visa Refusal Notice under INA 212(a)(6)(C)(i)

To find that a visa applicant is inadmissible or ineligible for a visa under INA 212(a)(6)(C)(i), the consular officer must find all of the following elements are met:

  • The applicant made a false representation;
  • The false representation was willfully made;
  • The fact misrepresented is material;
  • The false representation was made to a U.S. government official, such as a consular officer; and
  • The applicant, by using fraud or misrepresentation, seeks to procure, sought to procure, procured, a benefit under U.S. immigration laws, such as a visa or admission into the United States.

When the beneficiary appeared for his interview at the U.S. Consulate, we expected his K-1 visa to be granted because USCIS had approved the Form I-129F petition and thus found there was no substantial and probative evidence of a prior sham marriage. He was stunned when, at the end of the interview, the U.S. Consulate issued a K-1 visa refusal notice citing to “6C1.” At the visa interview, the U.S. consular officer merely stated it was based on the prior marriage.

U.S. Consulate Rescinds INA 212(a)(6)(C)(i) Inadmissibility Finding and Grants K-1 Fiancé Visa Based on Motion to Reconsider

The petitioner and beneficiary next contacted Dyan Williams Law for representation in overcoming the (6)(C)(i) inadmissibility finding. We discussed the option of filing a Form I-601 waiver of inadmissibility with USCIS, which would involve a long processing time and the high evidentiary burden of proving the petitioner would face “extreme hardship” if the beneficiary was denied admission to the United States. Ultimately, with recommendation from counsel, they decided to instead pursue a Motion to Reconsider with the U.S. Consulate.

With a more flexible filing timeframe, we took several months to gather the necessary documentary evidence and written testimonies, including a declaration from the prior spouse confirming her marriage to the beneficiary was bona fide. Within a year of the visa refusal notice, we submitted the Motion to Reconsider and Rescind Inadmissibility Finding to the U.S. Consulate. In counsel’s legal memorandum, we explained the facts and laws to support the lifting of the (6)(C)(i) bar.

The Form I-129F approval did not necessarily mean the elements of fraud or willful misrepresentation were not met, but only that USCIS did not have substantial and probative of a prior sham marriage. Thankfully, it did not take long for the U.S. Consulate to make a positive decision.

Ten days later, the U.S. Consulate sent an email notice stating it removed the (6)(C)(i) bar and provided further instructions for the K-1 visa process. The applicant completed the next steps and, three months later, received the visa for lawful admission to the U.S. in K-1 status.

USCIS Approves Form I-485 Application for Permanent Residence

Within 90 days of the K-1 visa holder’s arrival in the United States, he and his U.S. citizen fiancée married and began their life together. They then contacted Dyan Williams Law to represent them in the Form I-485 green card application process.

Less than three months after USCIS received the Form I-485 application, they appeared for their scheduled Adjustment of Status interview before USCIS. The application was readily approved on the spot, with no doubts from USCIS regarding the beneficiary’s prior marriage or his existing marriage to the petitioner. The USCIS officer said they had great documentary evidence for an approval and did not ask about the NOID, the (6)(C)(i) visa refusal notice, or their relationship.

USCIS granted a two-year conditional green card because the marriage was less than two years old at the time it approved the Form I-485 application. The beneficiary will need to file a Form I-751 petition to remove the condition on his residence and to keep his U.S. immigration status. He may also file for naturalization (U.S. citizenship) when he meets the continuous residence requirement and other eligibility criteria.

It took 6 years for the beneficiary to receive his permanent residence from the time the U.S. citizen filed the Form I-129F petition with USCIS. This long and complicated U.S. immigration journey is a true success story for the clients and Dyan Williams Law.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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CBP Vacates Expedited Removal Order + Rescinds INA 212(a)(6)(C)(i) Charge = A True Success Story

Within 5 months, the U.S. Customs & Border Protection (CBP) in San Francisco, CA vacated its Expedited Removal Order (ERO) and rescinded its INA 212(a)(6)(C)(i) inadmissibility finding against my client, upon receiving our Motion to Reconsider the adverse decisions.

The CBP agreed he should not have been charged as inadmissible under INA 212(a)(7)(A)(i)(I) (intended immigrant without proper immigrant visa or other travel document) to be issued an ERO, which barred him for 5 years from the United States, pursuant to INA 212(a)(9)(A)(i).

We also convinced the CBP that the permanent bar under INA 212(a)(6)(C)(i) was made in error. The legal argument and documentary evidence showed he did not use fraud or willfully misrepresent any material fact to obtain H-1B status.

Refusal of H-1B Admission to the United States Despite the Presentation of Valid Travel Documents and No Prior Violation of Nonimmigrant Status

My client presented his valid Canadian passport and Form I-797, Approval Notice for H-1B petition, when he requested admission in H-1B status. He was, however, placed in secondary inspection at the San Francisco International Airport for further questioning. Upon determining that the true purpose of his request for admission was unclear, the CBP issued the Expedited Removal Order under (7)(A)(i) and included the lifetime bar under (6)(C)(i) as an additional inadmissibility ground. The CBP did not give him the option of withdrawing his application for admission to the United States.

The Record of Sworn Statement (Form I-867A and Form I-831) indicated my client had good-faith intent to resume his employment at the H-1B petitioner, even though he had quit his position prior to his departure from the U.S. The Form I-797A, Approval Notice for the H-1B petition was still valid and was not withdrawn by the petitioner or revoked by USCIS.

Facts and Arguments Supporting Reconsideration of Inadmissibility Findings

Although my client took an extended break from his H-1B employment, he deemed it to be a “mutual separation” at most. It was, after all, the employer’s suggestion that he take a break when he declined to attend the company retreat due to health issues and personal reasons. He truly believed the company was open to having him resume his H-1B position.

While he was overseas, the employer was not required to pay him a salary and he was not obligated to do any work to maintain his H-1B status or avoid getting the H-1B status revoked. He did not consider his departure to be a final termination of employment or a paid leave of absence, and the H-1B petitioner did not indicate to him that it was.

Even if he had inadvertently terminated his employment, through voluntarily resignation, he did not violate his H-1B status or accrue any unlawful presence to be prohibited from re-entering the United States. He was not subject to the 3/10- year bar to reentry under INA 212(a)(9)(B)(i) when he requested re-entry in H-1B status.

Under the federal regulations at 8 CFR 214.1(l)(2), there is a discretionary grace period allowing H-1B workers to be considered as having maintained status following the termination of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.

During the 60-day grace period, the H-1B worker may find a new employer to file an H-1B extension of stay and change of employer request with USCIS. Otherwise, he may leave the United States within that period to avoid a violation of status. My client departed the United States well before the end of the grace period and spent his extended break in his native country.

At the time of his departure, my client and his manager discussed the possibility of his returning to his H-1B position after he recovered from his burnout. A month before he traveled back to the United States, he had a check-in call with his manager, which made him reasonably believe he could resume his position.

In the Motion to Reconsider, I pointed out that a terminated employee with no option of returning to his employment or of being rehired would not have such a check-in discussion with an employer. The petitioner gave him no confirmation of a final termination of employment and no notice that he must not use the H-1B Approval Notice to request admission to resume his position.  

When he requested H-1B admission at the U.S. port of entry, my client fully intended to continue discussions with his manager to restart his position. If he really had no plans to return to his employment, he had a Canada passport to request entry as a B1/B2 visitor to wrap up his personal affairs and continue business discussions with his manager.

An applicant may receive B-1 status if he is coming to the United States to engage in commercial transactions, negotiate contracts, consult with business associates, and participate in business meetings or conferences. My client could have legitimately requested admission as a visitor if his sole purpose was to engage in recreational activities or to have further employment negotiations or business meetings with his manager and then timely depart the United States to seek readmission in H-1B status.

He, however, chose to request H-1B admission because he fully intended to return to the employer. He assumed they were open to having him rejoin the company.

In the initial consultation with the client, I explained that he had two options:

1. File a Motion to Reconsider and Vacate the Expedited Removal Order and INA 212(a)(6)(C)(i) Bar with the CBP. A fully positive outcome in this requested relief gets rid of both the 5-year bar due to the Expedited Removal Order and the permanent bar under (6)(C)(i).

The drawback is that such motions are not routinely filed by CBP and are rarely granted, except in circumstances where there the decision was clearly in error.

It is also better to submit the motion within 30 days of the expedited removal order, which is not a statutory requirement, but in accordance with a regulation generally related to motions with an immigration officer. A favorable review on the merits, if any, is completely within the discretion of the agency.

2. File a Request for Consent to Reapply for Admission Following Expedited Removal Order and an Application for 212(d)(3) Nonimmigrant Waiver to be excused from the (6)(C)(i) inadmissibility finding. This is the more common remedy and official procedure under U.S. immigration law. If granted, the applicant may then receive the U.S. visa or admission to the United States as a nonimmigrant, if he is otherwise eligible for such entry.

The drawback is that a CTR and 212(d)(3) waiver grant eventually expire and may last for only a few months to one year. Therefore, the applicant may need to reapply for this relief if they travel overseas and seek readmission following the expiration of the CTR and waiver grant.

In addition, if the person needs a visa stamp for the purpose of their trip to the United States, he must go through the U.S. Consulate or U.S. Embassy to request the CTR and 212(d)(3) waiver in connection with the visa request. This creates an extra hurdle because the U.S. Consulate or U.S. Embassy must first recommend the requested relief for it to be forwarded to the U.S. Customs & Border Protection, Admissibility Review Office (ARO) for final review and adjudication. If there is no recommendation, there is no review by CBP-ARO on the merits of the applications.

Canadian citizens may file for the Consent to Reapply for Admission (by a Form I-212 application) and 212(d)(3) waiver (by a Form I-192 application) directly with the CBP-ARO when they do not need a visa stamp in their passport for the purpose of their U.S. entry. But in situations where they must have a valid visa for U.S. entry, must request the waiver through consular processing. They include:

  • Treaty traders and investors (E Visa).
  • Foreign citizen fiancé(e) (K-1 Visa), and the fiancé(e)’s children (K-2 Visa).
  • A U.S. citizen’s foreign citizen spouse traveling to reside in the U.S. while awaiting final completion of the process of immigration (K-3 Visa), and the spouse’s children (K-4 Visa).
  • Spouses of lawful permanent residents (V-1 Visas), and the spouse’s children who are traveling to reside in the U.S. while awaiting final completion of the process of immigration (V-2 Visas).
  • Non-immigrants traveling to the United States for work (Non-Immigrant Visas), including:
    • Canadian government officials (A Visas), if entering the U.S. for temporary or permanent assignment.
    • Officials and employees of international organizations (G Visas), if entering the U.S. for temporary or permanent assignment; and
    • NATO officials, representatives, and employees, only if they are being assigned to the U.S. (as opposed to an official trip).

Motion to Reconsider with CBP Results in Favorable Decision Within 5 Months

As a Canadian citizen, my client could have applied directly with CBP-ARO for the Consent to Reapply for Admission and 212(d)(3) waiver to seek re-entry in H-1B status or B1/B2 visitor status. But he opted for the Motion to Reconsider because the evidence showed the Expedited Removal Order and INA 212(a)(6)(C)(i) findings were made in plain error.  Such harsh penalties were unnecessary, particularly when he clarified his legitimate reasons for requesting H-1B admission during secondary inspection at the U.S port of entry.

The normal processing time for a Motion to Vacate Expedited Removal Order with CBP is at least 6 months and, in some cases, may take 1 year or more. Because such motions are not the common or official procedure under statutory law, no Acknowledgement Notice or Receipt Notice is provided by CBP. A review by CBP is completely within their discretion.

While processing times are similar for Consent to Reapply for Admission and 212(d)(3) waiver applications, status updates may be requested from the U.S. Consulate or U.S. Embassy or, in some cases, from the CBP-ARO. This is also the formal route that U.S. immigration agencies expect applicants to take when they have INA 212(a)(9)(A) and (6)(C) bars.

In this case, the CBP agreed to vacate the Expedited Removal Order and the willful misrepresentation charge, as well as corrected the record with a retroactive grant of withdrawal of his application for admission. This timely and wholly positive outcome is a true success story for Dyan Williams Law PLLC.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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I-601 Waiver + Immigrant Visa = A True Success Story

Five years after being found inadmissible under INA 212(a)(6)(C)(i), our client finally received her Immigrant Visa to join her U.S. citizen spouse in the United States. Consistent with normal processing time, USCIS took 10 months to approve her Form I-601 application for waiver of inadmissibility, which we prepared and filed on her behalf.

But due to the U.S. Consulate’s administrative delays and a Presidential Proclamation suspending entries from the client’s home country, it took almost three more years for her to get the visa.

In episode 13 of The Legal Immigrant, you will learn:

1) The U.S. immigration problem when you have a permanent bar under INA 212(a)(6)(C)(i), i.e., fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit. 

2) The two main solutions to receive an Immigrant Visa or green card (permanent residence) when you have a section 212(a)(6)(C)(i) inadmissibility bar:

a) A motion to reconsider requires you to have a factual basis, legal ground, and procedural means to get the bar removed.

b) Form I-601 waiver application under INA 212(i) requires you to have a “qualifying relative” who will face “extreme hardship” if you do not immigrate to the United States. 

  • A qualifying relative is the U.S. citizen or permanent resident spouse or parent of the applicant. 
  • Extreme hardship must result to the qualifying relative if that person stays in the U.S. without the applicant or relocates to another country to be with the applicant. 

3) The type of documentary evidence and legal argument that are required to receive an I-601 waiver.  This includes medical records on any chronic medical conditions the U.S. citizen spouse (or other qualifying relative) suffers, and reports on lack of medical resources in the visa applicant’s home country. 

4) The outcome of a true success story, which included more obstacles and long delays after the I-601 was approved. Due to the U.S. Consulate’s 221(g) administrative processing and a 212(f) Presidential Proclamation suspending entries from certain countries, it took almost three more years for the applicant to get the Immigrant Visa.

The couple remained committed to one another despite their separate residences and long-distance relationship. Our client finally became a permanent resident after she was initially refused the visa under INA 212(a)(6)(C)(i).

This is a true success story at Dyan Williams Law.

To hear more on the I-601 Waiver + Immigrant Visa success story, click HERE for Episode 13 on The Legal Immigrant podcast or find it on Apple Podcasts or Google Podcasts

To watch the YouTube video, click HERE.  

To read the transcript, click HERE

The Legal Immigrant provides general information only from Dyan Williams Law. Do not consider it as legal advice. Each case is different. Even cases that seem similar can have different outcomes. 

Have you been charged with fraud or misrepresentation? If you’re applying for an immigrant visa or permanent residence and have this lifetime bar, you need an I-601 waiver. Otherwise, if the bar was made in error, you might be able to get it removed through a motion to reconsider.

To receive advice on fraud or misrepresentation issues, you may submit an email to info@dyanwilliamslaw.com or online message at www.dyanwilliamslaw.com.

Dyan Williams, Esq. 

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

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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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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