Category Archives: willful misrepresentation

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 But years ago, my client’s H-1B visa was revoked by the U.S. Customs & Border Protection (CBP) and he was denied entry and allowed to withdraw his application for admission.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

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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