Category Archives: willful misrepresentation

Grant of Motion to Vacate INA 212(a)(6)(C)(i) (Misrepresentation) Charge+ Issuance of Immigrant Visas = A True Success Story

The U.S. Consulate granted immigrant visas to the father and mother of an adult U.S. citizen after previously denying them — one year earlier — under INA 212(a)(6)(C)(i) willful misrepresentation of material facts to gain U.S. immigration benefits).

Upon receiving our two Motions to Reconsider and Rescind Inadmissibility Determination, the Consulate responded within 10 days, stating it reviewed our requests and removed the permanent bar under INA 212(a)(6)(C)(i) in both cases. The Consulate instructed our clients to appear for a second interview after submitting updated visa application forms and required documents. Approximately six weeks later, they attended their second interview and were granted their immigrant visas to enter the United States as permanent residents.

At the first interview, the Consulate denied the immigrant visas because the applicants had  overstayed their authorized periods in the United States as B1/B2 visitors for many years, but apparently did not disclose this when they applied for new visitor visas.

The section 212(a)(6)(C)(i) bar could not be excused with a Form I-601/INA 212(i) waiver of inadmissibility because they had no qualifying relative  (i.e. U.S. citizen or permanent resident spouse or parent) who would suffer extreme hardship if they were not admitted to the United States. A U.S. citizen son does not count as a qualifying relative for immigrant waiver purposes.

Before seeking the immigrant visas based on their U.S. citizen son’s immigrant petition, our clients were informed about the section 212(a)(6)(C)(i) bar when they sought new B1/B2 visitor visas 10 years earlier. At that time, they did not challenge the inadmissibility finding and instead received 212(d)(3) nonimmigrant waivers to be granted visitor visas.

The 212(d)(3) nonimmigrant waiver, however, has less stringent eligibility requirements than the Form I-601/INA 212(i) waiver. By the time the clients retained me to represent them in challenging the section 212(a)(6)(C)(i) bar, almost one year had passed since they attended their first immigrant visa interview.

U.S. federal regulations give them one year from the date of the immigrant visa refusal to file a Motion to Reconsider with new evidence or legal arguments. Responding quickly and effectively, I counseled the clients in preparing their declarations (written testimonies) and gathering documentary evidence showing their overstay occurred before April 1, 1997 and they departed the United States in May 1996.

In the Motion to Reconsider, I acknowledged the applicants might have stated “no” to the  question on whether they had violated the terms of a U.S. visa or been unlawfully present in the United States, when they should have said “yes.”

The father explained that he had used a professional broker service, paid for by his employer, to help fill out the visa application and that if a misrepresentation had occurred, it was not willful. The mother denied stating “no” to the overstay, but had no copies of the visa applications she had submitted.

In any event, I argued that to invoke the section 212(a)(6)(C)(i) bar, the Consulate must not only find that willful misrepresentation occurred, but also that the information at issue was material to the applicant’s admissibility. I pointed out that both visa applicants departed the United States in May 1996 following their long overstay as visitors. The departure date was critical.

The U.S. Congress did not enact the Illegal Immigration Reform and Immigrant Responsibility Act until September 30, 1996, when the 3/10 year unlawful presence bar was introduced. Any unlawful presence that was accrued prior to April 1, 1997, when the law went into effect, does not count for purposes of the 3/10 year bar under INA 212(a)(9)(B)(i).

Therefore, when the clients applied for new visitor visas in the early 2000’s, they had not accrued any unlawful presence that made them inadmissible to the United States or ineligible for a visitor visa under INA 212. If there was any failure to disclose an overstay on the visitor visa applications, it did not cut off a relevant line of inquiry regarding their admissibility or visa eligibility.

The clients were fortunate to have the section 212(a)(6)(C)(i) bar lifted upon Motion to Reconsider, particularly because they had no qualifying relative for Form I-601/INA 212(i) purposes. While they could have continued to apply for B1/B2 visitor visas with 212(d)(3) nonimmigrant waivers for temporary trips, their true desire was to live permanently in the United States with their U.S. citizen son. Having permanent resident status further allows them to file immigrant petitions for their two younger children (under age 21), who were born overseas and need to join them in the United States.

Upon receiving the good news that the section 212(a)(6)(C)(i) bar had been removed, the applicants sent me a thank-you email stating, “We are so happy and thrilled and would not be celebrating today if it wasn’t for your talent and expertise. We will always be grateful to you for this outcome. Even in our best estimates, we could never expect a response in such a short time.”

Helping my clients obtain their immigrant visas within two months of filing the Motion to Reconsider and Rescind the section 212(a)(6)(C)(i) bar is a true success story.

Cheers,

Dyan Williams

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

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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

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

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

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

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

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

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

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

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

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

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

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

Cheers,

Dyan Williams

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

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Grant of Motion to Vacate INA 212(a)(6)(C)(i) (Misrepresentation) Charge+ Issuance of H-1B Temporary Worker Visa = A True Success Story

Within 50 days of attending his visa interview at the U.S. Embassy, my client was cleared of the INA 212(a)(6)(C)(i) inadmissibility charge and received his H-1B visa to resume his employment in the United States. The Embassy had previously found that he willfully misrepresented material fact when he failed to disclose he had been arrested and charged with Domestic Violence on his prior Form DS-160, nonimmigrant visa application, and during the visa interview.

This lifetime inadmissibility bar prevented him from obtaining the visa without first receiving a 212(d)(3) nonimmigrant waiver from the U.S. Customs & Border Protection, Admissibility Review Office. This waiver normally takes at least four to six months to process, assuming the Embassy makes a favorable recommendation and forwards the request to the CBP-ARO for review and a decision.

At the outset, I explained to the client that he had solid grounds to challenge the inadmissibility finding. He did not disclose the arrest or charge against him because it was was based on false allegations of Domestic Violence by his now ex-wife. He denied these unsubstantiated claims and did not plead guilty to the offense. The court also dismissed the charge due to lack of evidence.  There was no conviction or formal admission to committing the offense.

Because he was not inadmissible on crime-related grounds, his omission of the arrest and charge was immaterial to his visa eligibility. If he had disclosed this information on his visa application and during the interview – as he should have – he still would have qualified for the visa.

I explained to the client that while the 212(d)(3)(A) waiver request is a viable, alternative solution, it has several disadvantages. First, this path would leave the INA 212(a)(6)(C)(i) bar in his record because it only waives the inadmissibility ground, but does not get rid of it.

Second, the 212(d)(3) waiver is valid for up to 60 months (5 years), which means he would need to file for a new one, upon expiration, to continue to receive nonimmigrant visas. Furthermore, the 212(d)(3) waiver is for nonimmigrants and does not allow the issuance of a green card or immigrant visa to intended immigrants when the person is inadmissible under INA 212(a)(6)(C)(i). Rather, he would instead require a Form I-601/INA 212(i) immigrant waiver, which carries stricter eligibility requirements and higher evidentiary standards.

Moreover, the lengthy processing time for the 212(d)(3) waiver put the client at high risk of losing his position in the United States. His employer was already facing financial difficulties and project delays due to his absence.

I advised the client to apply again for the H-1B  visa and counseled him on how to present his case at the new visa interview. He opted for the 212(d)(3) waiver as a backup option and presented a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i) (willful misrepresentation of material fact to gain immigration benefit) as his primary solution.

To support the Motion to Reconsider, I wrote a legal memorandum explaining  how the INA 212(a)(6)(C)(i) bar was applied in error and should be vacated to allow the Embassy to issue the visa without requiring a 212(d)(3) waiver. I also helped the client finalize his written testimony in support of the motion, as well as prepared him for oral testimony at the visa interview. The Embassy accepted the legal memorandum and written testimony and listened to his oral testimony. It then placed the case in administrative processing.

Following the visa interview, the client waited approximately 30 days to receive instructions from the Embassy to submit his passport.  The Embassy took another 20 days to process and issue the H-1B visa showing clearance was received. During the waiting period, I submitted several follow-up inquiries to the Embassy to request the visa issuance and to help relieve the client’s anxiety.

A few days later, my client entered the United States with his new H-1B visa. At the U.S. port of entry, the U.S. Customs & Border Protection asked no questions about the prior inadmissibility finding.

The section 212(a)(6)(C)(i) charge was removed and the client is no longer subject to this permanent bar. As such, he will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. In addition, he will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.

During the course of representation, I gathered information and answered questions from the client by email and video calls. Despite never having an in-person meeting, we effectively collaborated and communicated with each other to create a true success story.

Cheers,

Dyan Williams

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

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Grant of Motion to Vacate Expedited Removal Order + Rescission of Misrepresentation Charge = A True Success Story

On November 9, 2016 – several hours after Donald Trump gave his acceptance speech as U.S. President-elect – I received a telephone call from the U.S. Customs & Border Protection (CBP) on a Motion to Vacate Expedited Removal Order I had filed on October 31st (only 9 days earlier). I had appealed to the CBP Field Office, which denied my client admission at the U.S. port of entry, to rescind the removal order and the charge that she willfully misrepresented material fact to gain entry into the U.S. as a visitor.

My client sought entry into the U.S. on a valid B1/B2 visitor visa, which she obtained six months before she married her U.S. citizen spouse. Following the marriage in her home country, she and her elderly parents arrived at an international U.S. airport for a temporary visit. Her American spouse also accompanied them on their first trip to the U.S.

Her plan was to tour the U.S. with her parents and get accustomed to the American lifestyle and culture before she returned to her home country to start the marriage-based immigrant visa process. They had return airline tickets to leave the U.S. within two weeks.

At primary inspection, she and her parents presented the proper travel documents (valid passports) and entry documents (unexpired 10-year, B1/B2 visitor visas) to the CBP officer. While her parents were admitted as visitors, she was pulled into secondary inspection.

During secondary inspection, the CBP officer questioned her about the purpose of her trip. She explained the temporary nature of her visit and, while she was reaching for her return airline ticket, the officer took her personal belongings and searched through them.

Among her personal belongings was a folder containing several documents. In the folder, the CBP officer found two letters from an employer in her home country that were contradictory. The first letter stated she had resigned from her position, indicating she was no longer employed. The second letter stated she was on a leave of absence, implying she still had a job.

She immediately clarified that the second letter contained false information and she had in fact resigned from her job. She described her plans to return to her home country on time and later apply for an immigrant visa, based on her marriage to a U.S. citizen.

Instead of allowing her to withdraw her application for admission due to lack of a proper visa, the CBP detained and interrogated her for at least five hours. She was questioned by two CBP officers until her Sworn Statement was taken about eight hours after she arrived at the airport.

Using a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, the CBP officer documented her testimony in a question and answer format. My client signed the Sworn Statement and initialed each page without fully reading or understanding the contents.

The CBP issued a Form I-860, Notice and Order of Expedited Removal Order, finding her inadmissible, denying her entry, and ordering her expeditiously removed on two counts. The first charge was under INA 212(a)(7)(A)(i)(I), i.e. lack of proper travel documents. The second (and more serious) charge was under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to gain admission into the U.S. by presenting a fake letter.

My client was sent back to her country the following day on the next available flight. Her spouse and parents booked airline tickets and returned there as well. A week later, she and her spouse completed a video consultation with me via Skype.

In the consultation, I explained that the expedited removal order, by itself, subjects you to a 5-year bar to reentry. And a charge of fraud/willful misrepresentation under section 212(a)(6)(C)(i) furthers bars you permanently from entering the U.S.

I  described the two main options to immigrate to the U.S. following an expedited removal order with a misrepresentation charge.

Option A is to submit a Motion to Vacate the Expedited Removal Order to the CBP Field Office that issued the order. Because this request is, in essence, a motion to reopen or reconsider to the Service, the CBP must receive it within 30 days of the date of the order.

Option A is available if the applicant has factual grounds and legal claims to challenge the CBP’s determination that she is inadmissible to the U.S. and must be expeditiously removed from the U.S.

Option B is to file an  I-212, application for permission to reapply for admission after removal, to overcome the 5-year bar. Plus file an I-601, application for INA 212(i) waiver of inadmissibility, to be excused from the section 212(a)(6)(C)(i) charge – a permanent bar. Both waivers must be filed in conjunction with the immigrant visa application, and are typically submitted at or after the visa interview.

Option B is available if the applicant meets the eligibility requirements for the I-212 waiver and I-601 waiver. To get the I-212 waiver, the applicant must have favorable factors (e.g. close family ties in the U.S.) that outweigh the unfavorable factors (e.g. bad moral character). To receive the I-601 waiver, the applicant needs a qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if she is not admitted to the U.S.

The foreign national and her American spouse chose Option A as their primary solution, and Option B as their backup plan. Both options require strong documentary evidence, favorable facts, and persuasive legal arguments for an approval to be possible.

During the next three weeks that followed the consultation, I counseled my client and her spouse on the documentary evidence to gather for the request to vacate expedited removal order. The evidence demonstrated the temporary nature of the planned visit, my client’s ongoing ties to her home country, and her and her spouse’s good moral character.

Furthermore, I reviewed the Sworn Statement and Notice and Order of Expedited Removal Order, the agency’s policy manual, and applicable case law to formulate the strongest legal arguments to support the motion.

In the Motion to Expedite Removal Order, I noted that my client had proper travel documents in the form of an unexpired passport and valid visitor visa. I argued she was not inadmissible under INA 212(a)(7)(A)(i)(I) because it was appropriate for her to travel to the U.S. on a valid B1/B2 visa for a temporary visit, even though she was married to a U.S. citizen.

In addition, I explained why the CBP made an error by making a willful misrepresentation charge under INA 212(a)(6)(C)(i). I pointed out that my client did not affirmatively provide the fake leave of absence letter to the CBP officer, who found it during his search of her personal belongings. I added that even if she had misrepresented a material fact, she timely recanted it by admitting the letter contained wrong information and clarifying she was unemployed in her home country.

I pointed out the CBP should have at least given her the opportunity to withdraw her application for admission, rather than issue an expedited removal order that subjected her not only to a 5-year bar, but also to a permanent bar.

The normal processing time for a Motion to Vacate Expedited Removal Order is 6 months. To my pleasant surprise, it took less than 10 days for CBP to review the motion and make a decision in this case.

Four days after the CBP Field Office received the motion, a CBP officer telephoned me to convey they were taking the request into serious consideration.

On November 9th, which was 9 days after receiving the motion, the Watch Commander at the CBP Field Office called to say he would vacate the expedited removal order and treat the case as a withdrawal of application for admission to the U.S. He noted that my client was no longer barred from entering the U.S.

The foreign national no longer has a 5-year bar to reentry due to the removal order or a permanent bar to reentry due to the willful misrepresentation charge. She now readily qualifies for a marriage-based immigrant visa without needing any waivers of inadmissibility.

The rescission of the removal order and dismissal of the section 212(a)(6)(C)(i) charge means my client will not need an I-212 waiver or I-601 waiver to get the immigrant visa. This will make it significantly easier and faster for her to immigrate to the U.S. (because waiver requests often take 6 to 12 months to be adjudicated).

My client, her spouse and I communicated by Skype, telephone and email. They decided to hire me upon completing the initial video consultation, in which I laid out a strategy and action plan to resolve their immigration predicament.

Although we never met in person, we worked together effectively to create a desired and expeditious outcome. I continue to represent them in their I-130 immigrant petition and immigrant visa process.

The speedy approval of the request to vacate expedited removal order and dismissal of the misrepresentation charge is a true success story in 2016 for Dyan Williams Law PLLC.

I enjoy taking on challenging cases in which foreign nationals seek to enter the U.S. lawfully as an immigrant or nonimmigrant, after they have been found inadmissible or issued an expedited removal order. Getting I-212, I-601 and 212(d)(3) waivers are among my top areas of expertise.

Under the new administration – which begins on January 20, 2017,  and is expected to be more hardline on immigration – lawful entries into the U.S. will be more critical than ever.

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

Immigration fraud or willful misrepresentation of a material fact bars you from adjusting to permanent resident status or from entering the U.S. as an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome this bar to being lawfully admitted to the U.S., prospective immigrants must file for and receive an I-601 waiver when available under section 212(i) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status or enter the U.S. on an immigrant, K-3 or K-1 visa.

When Are You Inadmissible Due to Fraud or Misrepresentation [INA§ 212(a)(6)(C)]?

Immigration fraud or misrepresentation is a lifetime bar to adjusting to permanent residence or lawfully gaining admission to the U.S. (either as an immigrant or nonimmigrant).

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that foreign nationals, who by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, other documentation, or admission into the United States or other immigration benefit are inadmissible.

Section 212(a)(6)(C)(ii) of the INA further states that foreign nationals who have made false claims to U.S. citizenship for any purpose or benefit under immigration law or federal or state law is inadmissible. The one exception is if each natural parent (or each adoptive parent) of the foreign national is or was a U.S. born or naturalized citizen; the foreign national permanently resided in the U.S. prior to turning age 16; and the foreign national reasonably believed at the time of making such false claims that he or she was a citizen.

What is a Retraction and When Does It Count?

A retraction is a withdrawal of a false statement. When it is timely and voluntary, it may serve to purge a misrepresentation and remove it as a basis for INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) findings. Whether a retraction is timely depends on the circumstances of the case.

Generally, a retraction is timely if it is made at the first opportunity and before the conclusion of the proceeding during which the false statement was given.  The retraction must have been made during the initial interview with the officer. It can also be deemed timely and voluntary if it was made in response to an officer’s questions during which the officer gave the applicant a chance to explain or correct a potential misrepresentation.

When Do You Need an I-601 [INA § 212(i)] Waiver Due to Fraud or Misrepresentation?

You need an I-601 waiver under section 212(i) of the INA when you are inadmissible due to fraud or willful misrepresentation and seek an immigrant visa or green card.

You are inadmissible based on fraud if all the following elements exist:

1. You procured, or sought to procure, a benefit under U.S. immigration laws;

2. You made a false representation;

3. The false representation was willfully made;

4. The false representation was material;

5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer;

6. The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request; and

7. The U.S. government official believed and acted upon the false representation by granting the benefit.

If the immigration benefit was denied, you may still be inadmissible for having “sought to procure” it by fraud. Although the fraud element requiring the U.S. government official to believe and act upon the false representation does not apply, an intent to deceive is still a required element.

In cases of attempted fraud, it’s hard for the agency to determine your intent to deceive when the fraud was unsuccessful. You may, however, still be inadmissible for willful misrepresentation, without any finding of fraud.

You are inadmissible based on willful misrepresentation of a material fact if all the following elements exist:

1. You procured, or sought to procure, a benefit under U.S. immigration laws;

2. You made a false representation;

3. The false representation was willfully made;

4. The false representation was material; and

5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer.

If the immigration benefit was granted, you are inadmissible for having procured the benefit by willful misrepresentation. If the immigration benefit was denied, you are still inadmissible for having “sought to procure” it by willful misrepresentation. In each case, an intent to deceive is not required.

If you are inadmissible for fraud, you are also inadmissible for willful misrepresentation. One example is when a person presents a fake (or someone else’s) passport and visa to a U.S. customs officer with the intent of deceiving the officer to gain entry into the U.S. , and the officer admits him based on the false representation. The person is inadmissible for both fraud and willful misrepresentation.

On the other hand, being inadmissible for willful misrepresentation does not necessarily make you inadmissible for fraud. For example, USCIS could find you willfully misrepresented a material fact, but there was no intent to deceive the officer and the officer did not believe and act upon the false representation.

The distinction between fraud and willful misrepresentation, however, is minor. Either way, the lifetime bar under section 212(a)(6)(C)(i) applies.  Without the I-601 waiver, you cannot get a green card, an immigrant visa, or a K visa.

What are the Limitations of the I-601 [INA § 212(i)] Waiver?

The I-601 waiver under section 212(i) of the INA has several limitations:

It is limited to immigration fraud or willful misrepresentation of a material fact to obtain immigration benefits. Section 212(i) does not provide an immigrant waiver for false claims to U.S. citizenship to procure immigration benefits or other benefits under federal or state law. Therefore, if you are found inadmissible under section 212(a)(6)(C)(ii), you must show that the bar actually does not apply to you. Potential defenses to a false claim to U.S. citizenship finding include:

1. The false claim was made prior to September 30, 1996, when the law took effect.

2. The false claim was not for a “purpose or benefit” under immigration law or federal or state law.

3. The false claim was not intentionally or knowingly made, particularly if you were a minor at the time.

4. The false claim was made by someone else, without your knowledge or involvement.

5. The false claim was timely and voluntarily retracted, before the lie is exposed or is about to be exposed.

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not a stand-alone application. The section 212(i) waiver request is normally filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application. The waiver request is submitted after USCIS (in the case of an adjustment applicant) or the U.S. Consulate (in the case of an immigrant or K-visa applicant) determines you are inadmissible due to fraud or misrepresentation. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.

Who Qualifies for the I-601 [INA § 212(i)] Waiver?

To qualify for the I-601 waiver [§ 212(i) waiver] and be excused from the lifetime bar under section 212(a)(6)(C)(i), you must show 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.]

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.

If you do not qualify for the waiver, you will have to present information, documents, and legal arguments establishing the section 212(a)(6)(C) finding is improperly applied to you. You cannot become a permanent resident unless you get the inadmissibility finding rescinded or you obtain the waiver. 

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(i) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, applicants must present evidence showing the positive factors outweigh the negative factors in their case. Even if the applicant is eligible for the waiver, the agency may still deny the request as a matter of discretion.

(NOTE to NONIMMIGRANTS: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the INA. The nonimmigrant 212(d)(3) waiver is also available for fraud or willful misrepresentation. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

Where Do You File An I-601 [INA § 212(i)] Waiver Application? 

The §212(i) waiver request is filed on a Form I-601, which is submitted to a designated USCIS lockbox or service center, the USCIS Field Office that is adjudicating the I-485 adjustment of status application, or the Immigration Court (if the person is in removal proceedings).

The filing address for the I-601 application depends on whether you are:

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.

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To receive an I-601 waiver for immigration fraud or misrepresentation, you need to do more than just submit the form and documents listed in the instructions. You also have to convince USCIS that you qualify for the waiver and deserve to get it. A qualified immigration attorney can guide you on the documentary evidence to submit and prepare a legal brief to support your waiver request.

For more information on what to submit with your application and why having an attorney helps, read our related article, What should you do to get an I-601 waiver for immigration fraud or misrepresentation? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Fenris Oswin