Category Archives: willful misrepresentation

The Legal Immigrant PODCAST is Now Up!

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

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

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

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

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

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

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

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

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

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

Thank you for your support and audience.

All the best in 2021,

Dyan Williams

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The H-4 applicant, her H-1B spouse and I communicated by emails and telephone calls. I had one in-person meeting with the H-1B spouse for the initial consultation. With effective collaboration, we convinced the U.S. Consulate to remove the (6)(C)(i) bar — which was made a decade ago — and grant the H-4 visa. This is a true success story.

Cheers,

Dyan Williams

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

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Intro & Outro Music by: Sebastian Brian Mehr

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

After USCIS approved the Form I-601 application we prepared on his behalf, our client received his Immigrant Visa and joined his permanent resident parents in the United States. Prior to getting the waiver, he was refused the visa under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to previously enter the U.S. on a B1/B2 visitor visa.

With our guidance, he proved to USCIS that his aging mother and father would face extreme hardships if he did not receive admission to the United States. The Form I-601 approval permitted the issuance of Immigrant Visas to the applicant and his accompanying wife and two minor children.

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

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that a person who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, admission to the U.S. or any other U.S. immigration benefit is inadmissible. This is a lifetime bar to entering the United States.

In this case, in the early 1990s, our client attended high school while he was on a visitor visa, instead of on the proper F-1 student visa. A U.S. citizen family friend — who later became his legal guardian — encouraged him to begin attending a U.S. high school during his temporary visits. A minor at the time, he would consistently depart the United States before his authorized stay expired and then re-enter to continue his studies.

Two years later, he was denied admission at a U.S. port of entry, upon presenting his valid passport and unexpired visitor visa. He was still under age 18 at that point. The U.S. customs officers thought he spoke English too well to be just a visitor. With further inquiry, they discovered he was attending school and working part-time in the United States during his temporary stays. His visa was cancelled and he went back to Mexico.

A few days later, he returned to the United States by crossing the U.S.-Mexico border on foot without inspection. He did not encounter any border patrol agents or present any false documents or information to re-enter the United States and finish high school.

Following his high school graduation, he departed the United States and established a comfortable life in his home country. He became a family man with a spouse and two children. He developed a solid career in warehouse management and logistics.

About 20 years later, he applied for an Immigrant Visa based on an approved Form I-130 petition his U.S. citizen brother filed on his behalf. At the Immigrant Visa interview, the U.S. consular officer found him inadmissible under INA 212(a)(6)(C)(i) for misrepresenting the main purpose of his visit when he requested admission to the United States in the mid-1990s on his B-2 visitor visa to continue his education.

During the visa interview, he admitted under oath to the consular officer that he had attempted to enter the United States using his visitor visa by stating he was coming to the U.S. for a visit. But he intended to return to school and a part-time job.

Although he did not affirmatively present false information to the U.S. customs officer, his own testimony at the visa interview led the U.S. Consulate to deny him the visa under INA 212(a)(6)(C)(i). He was instructed to file a Form I-601 application for waiver of inadmissibility.

Solution: Form I-601 Waiver Under INA 212(i)

Section 212(i) of the INA provides a waiver of the fraud/misrepresentation bar if the applicant is the spouse, son, or daughter of a U.S. citizen or permanent resident who will suffer extreme hardship if the applicant’s request for admission to the United States is denied.

After agreeing to represent the applicant, I counseled him on the documentary evidence and written testimonies he needed to present to USCIS. These included detailed affidavits from the applicant and his family members, medical records and psychological evaluation reports for the parents, and proof of his U.S. citizen brother’s limited income and multiple responsibilities.

To support the Form I-601 application, I submitted a legal memorandum describing the extreme hardships the permanent resident parents would suffer if the applicant did not receive the Immigrant Visa for admission to the United States. The memo also explained why his U.S. citizen brother needed his help and support to care for their aging parents. Furthermore, it was not a viable option for the parents to relocate to the applicant’s home country due to the lack of health care, high crime rate, and poor living conditions.

Even if the applicant meets all the eligibility requirements, the USCIS officer must also decide whether to grant the waiver as a matter of discretion. Because fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit is a serious violation, we emphasized the applicant was a minor, at the time, who reasonably relied on the advice of his legal guardian. In addition, his professional qualifications, family responsibilities, lack of a criminal history, and close relationship with his permanent resident parents were positive factors that outweighed the unfavorable ones.

Outcome: Waiver Approval + Immigrant Visa Grant

Consistent with average wait times, USCIS took a year to process and approve the Form I-601 waiver application. Several months later, the applicant was scheduled for a follow-up interview at the U.S. Consulate, which issued the Immigrant Visas to him and his spouse and two children.

He and his accompanying derivative beneficiaries became permanent residents of the United States upon their admission on Immigrant Visas. He finally reunited with his parents and U.S. citizen brother after they had lived in separate countries for 20+ years. This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Intro & Outro Music by: Sebastian Brian Mehr

U.S. Consulate Rescinds INA 212(a)(6)(C)(i) Charge and Grants B1/B2 Visa: A True Success Story

Within 3 months of receiving our Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for B1/B2 Visitor Visa, the U.S. Consulate granted the visa to our client without requiring a 212(d)(3) waiver of inadmissibility. After he had been denied the visitor visa on three separate occasions over a 12-year period, the applicant sought our counsel to overcome the 212(a)(6)(C)(i) bar and get the visa.

Problem: INA 212(a)(6)(C)(i) Charge and INA 214(b) Issue

The applicant’s visa problems began after he was denied re-entry by U.S. Customs as a visitor. At the time, he had been attending high school in the United States on a B1/B2 visitor visa. Unique circumstances led him to believe he did not need a student visa as long as he did not overstay his authorized visits.

In his last request for entry, he was specifically asked about the purpose of his visit. He admitted he had been attending high school in the United States and was seeking to complete his studies. The U.S. Customs informed him he needed a student visa and could not attend school during a B1/B2 visit. Although he was allowed to withdraw his application for admission, his visa was cancelled.

Three years later, the applicant sought a visitor visa for temporary recreational stays in the United States. The U.S. Embassy denied his first two requests under INA 214(b), i.e. failure to overcome the presumption of immigrant intent to be eligible for a visitor visa.

Ten years later, the applicant sought the visitor visa again. After placing the case in administrative processing, the U.S. Embassy issued a visa refusal notice under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit).

The factual basis for the section 212(a)(6)(C)(i) charge was not specified. But it was reasonable to assume it stemmed from his attending high school in the U.S. while in B1/B2 visitor status.

When a person engages in conduct that is inconsistent with the terms and conditions of his visa (especially within 90 days of his admission), the U.S. consular officer may presume he willfully misrepresented the true purpose of the visit. The applicant then has to rebut the presumption of misrepresentation.

In this case, the applicant violated the terms of his visitor visa by attending school. But, at the time, he was a minor (under age 18) and relied heavily on his parents to make decisions on his behalf.

The family had been in the United States on another type of visa that allowed school attendance and a longer stay. Based on discussions with the school district, the parents mistakenly assumed their son could continue his studies on a visitor visa, as long as he departed the United States every six months, before the expiration date of each authorized visit.

Solution: Motion to Reconsider Inadmissibility Charge and Proof of Strong Ties to Residence Abroad

To deal with the INA 212(a)(6)(C)(i) finding, the applicant contacted me for a Skype consultation. I confirmed his ultimate objective was to receive a B1/B2 visa for business trips and recreational visits, including spending time with his U.S. citizen brother.

Prior to entering a representation agreement, we discussed whether to (a) request the U.S. Embassy vacate the INA 212(a)(6)(C)(i) finding or (b) apply for a 212(d)(3) waiver of inadmissibility. Given his young age at the time he attended school on the B1/B2 visa and the Record of Sworn Statement reflecting he declared this fact to U.S. Customs in his last request for entry, both options were viable. Ultimately, he chose option (a).

I advised the client on the information and documents to present to show he did not commit fraud or willfully misrepresent the purpose of his visit each time he was admitted to the United States on the B1/B2 visa, and then attended school. Furthermore, I counseled him on how to demonstrate strong ties to his residence abroad to overcome the presumption of immigrant intent under INA 214(b), which is necessary to qualify for the visitor visa itself.

In addition, I wrote a legal memorandum explaining the factual grounds and legal basis for the Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for B1/B2 Visitor Visa. I also prepared the client for what to expect at the visa interview and how to best present his case.

At the B1/B2 visa interview, the U.S. Consulate accepted the legal memorandum and the written testimonies of the applicant and his U.S. citizen brother in support of the Motion to Reconsider. The U.S. consular officer noted the case was complicated and had to be placed in administrative processing.

Outcome: Removal of Section 212(a)(6)(C)(i) Charge and B1/B2 Visitor Visa Grant

Three months later, the U.S. Consulate issued the B1/B2 visitor visa and made it valid for 10 years. The section 212(a)(6)(C)(i) bar was lifted, so there was no need for a 212(d)(3) waiver. A “clearance received” annotation was placed on the visa to further indicate his case was resolved.

After three prior failed attempts in which he did not have counsel, the applicant finally received the B1/B2 visa with our representation.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@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 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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U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

After initially refusing our request to vacate the INA 212(a)(6)(C)(i) charge against our client, the U.S. Embassy reconsidered its decision and issued the Immigrant Visa. Persistent follow-ups led to the applicant being cleared of the inadmissibility bar and receiving the visa for admission as a permanent resident. No Form I-601 waiver was needed because the Embassy dislodged the INA 212(a)(6)(C)(i) finding it made in error.

Two years before attending his Immigrant Visa interview, the applicant had sought a K-1 fiance visa at the U.S. Embassy, based on his then-engagement to a U.S. citizen. At the K-1 visa interview, the U.S. consular officer determined his relationship with the K-1 petitioner was not genuine, but entered into solely for U.S. immigration benefits.

The Embassy returned the approved Form I-129F petition to USCIS for further review and revocation. Instead of issuing a Notice of Intent to Revoke, USCIS issued a termination notice almost 6 months later stating the 4-month validity period on the Form I-129F approval notice had expired, but the U.S. citizen fiance may file a new petition for the applicant. By that point, they had ended their relationship and called off the engagement. No further evidence was submitted to prove the bona fide nature of the relationship.

Prior to the K-1 visa application, our client’s mother had filed a Form I-130 immigrant petition for him. USCIS approved the petition within five months, but he had to wait several years for the priority date to become current so he could apply for an Immigrant Visa.

At his Immigrant Visa Interview, he received a refusal worksheet charging him with INA 212(a)(6)(C)(i), as an applicant who sought to procure a visa by fraud or willful misrepresentation of a material fact. The Embassy noted that in adjudicating his K-1 fiance visa application, the relationship was found to not be credible.

Following the Immigrant Visa refusal due to fraud/willful misrepresentation, a close relative of the applicant contacted me for a consultation. After confirming the relationship with the K-1 petitioner was genuine but just did not work out, I agreed to represent the applicant and his mother (the Form I-130 petitioner).

I explained the applicant had the option to file a Form I-601 waiver application, as instructed by the U.S. Embassy. To get this waiver, he needed to prove to USCIS that his mother would suffer extreme hardships if he were denied admission to the United States. The long processing time and the high evidentiary standards made this a challenging path to take. The I-601 filing fee of $930 was also a factor to consider.

Because the applicant had proof of a bona fide relationship with the K-1 petitioner that was not previously submitted to USCIS or to the U.S. Consulate — and USCIS never revoked the Form I-129F approval but instead issued a termination notice — I counseled the applicant on another option, i.e. file a Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for Immigrant Visa directly with the U.S. Embassy. The applicant and his family decided to go with the Motion instead of the I-601 application.

It took several months for the applicant and his family to gather all the written testimonies and documents I had recommended they provide to support the Motion to Reconsider. With this evidence and my legal memorandum arguing how the INA 212(a)(6)(C)(i) charge was made in error, I filed a request with the U.S. Embassy to reconsider the inadmissibility finding and grant the Immigrant Visa.

Upon its first review of our Motion to Reconsider and Rescind Inadmissibility Finding, the Embassy sent a reply within a week, in which it stated the applicant made a material misrepresentation in a prior K-1 visa application and was permanently ineligible to receive a visa. It added it would not accept any further evidence or appeal regarding the visa application and instructed the applicant to file for an I-601 waiver of inadmissibility.

Two weeks later, with the applicant’s consent, I submitted a Request for Supervisory Review to the U.S. Embassy, asking it to confirm whether the Motion to Reconsider was duly reviewed and highlighting the errors in the inadmissibility finding. The Embassy replied it was reviewing my inquiry and there was no guarantee on how long it would take to get a response. It again instructed the applicant to file for an I-601 waiver.

After months of waiting and sending follow-up inquiries, we finally received a response from the U.S. Embassy stating it had completed a supervisory review to reconsider this case and there has been no change to the original officer’s adjudication. It noted the applicant may file for a waiver.

A few weeks later, I filed a Request for Advisory Opinion with the Visa Office (U.S.Department of State’s Office of Legal Affairs in the Directorate of Visa Services). In particular, I asked them to review the legal question regarding whether the U.S. Embassy properly applied INA 212(a)(6)(C)(i) when it denied the Immigrant Visa in this case. I provided them with a copy of the Motion to Reconsider, including the legal memorandum and supporting evidence. The Visa Office responded it had followed up on my inquiry and the case was under review.

Several months later, the Visa Office sent an update that the U.S. Embassy provided instructions to the applicant to proceed with his Immigrant Visa application. The Embassy instructed him to submit an updated Form I-864, Affidavit of Support, and financial support documents. It further requested he complete a DNA test to verify the biological relationship with his mother (the Form I-130 petitioner).

After complying with the U.S. Embassy’s instructions, the applicant finally received his Immigrant Visa. He was admitted to the United States as a lawful permanent resident to join his mother and other close relatives who were eagerly waiting for this reunion.

This is a true success story.

Cheers,

Dyan Williams

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

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