U.S. GOVERNMENT AGENCIES
(U.S. CITIZENSHIP & IMMIGRATION SERVICE (USCIS)| U.S. CUSTOMS & BORDER PROTECTION (CBP )| U.S DEPARTMENT OF STATE/U.S. CONSULATE)
I-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal
USCIS approves I-212 application (to excuse 5-year bar caused by expedited removal order, and allow immigrant visa grant)
An Immigrant Visa applicant was unable to obtain his Diversity Visa without an I-212 waiver granting him permission to re-enter the U.S. following an expedited removal order. During the month of May, the U.S. Consulate granted the visas to his wife (principal DV applicant) and young child (derivative DV applicant), but instructed him to first obtain an I-212 waiver. The cut-off date to receive the visa was September 30, the end of the DV Lottery fiscal year.
Because the applicant had only four months to obtain the visa when he contacted me about his I-212 application, I had to prepare a strong waiver request that would be readily and expeditiously approved by USCIS. The normal processing time for I-212 applications is 6 to 12 months.
It took the applicant about one month to collect all the required information and documents needed for the I-212 waiver. To support the application, I presented a legal brief and documentary evidence showing the unusual hardships he and his family would suffer if he did not accompany them to the U.S. I also provided compelling reasons for expedited processing (i.e. adjudication within 3 months).
On June 24, I filed the I-212 application with the USCIS Field Office in Boston, MA, which had jurisdiction to decide the case. That office, however, transferred the application to the Nebraska Service Center, where it sat for about two months for “administrative processing.” On August 20, NSC sent the case back to Boston for a decision.
After submitting multiple follow-up letters to USCIS (including the Boston Field Office and NSC) describing the urgency of the situation, I was personally called by the USCIS adjudications officer on September 23. He informed me that I had presented a compelling case and that he would approve the I-212 (just 7 days before the September 30th deadline to receive the visa).
I informed the applicant to immediately contact the U.S. Consulate for visa issuance prior to September 30. Thankfully, the U.S. Consulate granted the visa on September 25.
The timely I-212 approval and visa grant allowed him to accompany his wife and child to the United States. Their admission to the U.S. on diversity immigrant visas makes them lawful permanent residents. If USCIS had denied the I-212, the applicant would have been stuck in his war-torn country (at least for a few years, until he could obtain an immigrant visa based on a petition by his permanent resident wife).
USCIS approves I-212 application (to excuse permanent bar due to illegal re-entry into U.S., and allow immigrant visa grant)
The parent of an adult U.S. citizen son/I-130 petitioner was found ineligible for an immigrant visa. She was subject to a 10-year bar to re-entry due to her accrual of unlawful presence in the U.S. of 1 year or more. Her illegal re-entry into the U.S. after accruing more that 1 year of unlawful presence further made her permanently inadmissible – and she could not apply for a waiver of this lifetime bar until she had been outside the U.S. for 10 years.
Following 10 long years outside the U.S., she reapplied for an immigrant visa and was instructed to file an I-212 application to be excused from the lifetime bar resulting from her illegal re-entry.
With my counsel on the documentary evidence to submit as well as my filing of a legal memorandum to support her I-212 application, she was granted permission to re-enter the U.S. The USCIS’ approval of her I-212 cleared the way for her to receive the immigrant visa and reunite with her family in the U.S.
I-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal + 212(d)(3) Nonimmigrant Waiver
CBP approves I-212 application (to excuse 10-year bar due to removal order) and 212(d)(3) nonimmigrant waiver (to excuse crime-related inadmissibility) and allow entry as visitor
A visa-exempt Canadian citizen needed an I-212 approval because he was previously removed from the United States and became subject to a 10-year bar to reentry. He also needed a 212(d)(3) nonimmigrant waiver due to being permanently inadmissible on crime-related grounds.
I advised him on how to prove the favorable factors outweigh the negative factors in his case. I helped him explain the underlying circumstances that led to his conviction, his reasons for seeking entry into the U.S., and why he does not pose a risk to the community. Despite being married to a U.S. citizen, he could not obtain a green card or immigrant visa because his criminal record makes him inadmissible and there is no immigrant waiver available for his offense. In addition to proving he deserves the I-212 and 212(d)(3) waiver grant, he also had to show he has nonimmigrant intent and will not overstay his authorized period as a visitor.
Based on the legal memorandum and the supporting documentary evidence I presented in his waiver applications, the CBP granted both the I-212 and 212(d)(3) nonimmigrant waiver, which permits the Canadian citizen to visit the U.S. with his American family.
Motion to U.S. Customs & Border Protection (CBP) to reconsider and rescind (vacate) expedited removal order
CBP grants request to vacate expedited removal order within 9 days of receiving it
A visitor visa holder was placed in secondary inspection at the U.S. port of entry (international airport), denied entry, and issued an expedited removal order when CBP found she had immigrant intent and lacked the proper visa, and committed willful misrepresentation of material fact to gain entry into the U.S.
I counseled the visitor visa holder and her U.S. citizen spouse on the documentary evidence to present in their request to CBP to vacate the expedited removal order. I prepared a legal brief and submitted it to the CBP, along with the documentary evidence, establishing why the CBP made an error by finding willful misrepresentation. I further argued that it was appropriate for the applicant to travel to the U.S. on a valid visitor visa for a temporary visit, even though she was married to a U.S. citizen.
Within 9 days of receiving the request, the CBP agreed to vacate the expedited removal order and instead allow for the withdrawal of application for admission to the U.S. The foreign national no longer has a 5-year bar to re-entry due to the removal order or a permanent bar to re-entry due to the willful misrepresentation charge. She now readily qualifies for a marriage-based immigrant visa without needing any waivers of inadmissibility.
Reconsideration of Visa Refusal by U.S. Consulate, Department of State
U.S. Consulate considers request for factual basis of immigrant visa refusal and vacates inadmissibility finding
An adult daughter of a U.S. citizen was denied an immigrant visa because the U.S. Consulate found her permanently inadmissible under INA 212(a)(6)(C)(i), i.e. willful misrepresentation of material fact to gain immigration benefits. The Consulate instructed the daughter to file an I-601, application for waiver of inadmissibility, to be excused from the misrepresentation charge. The Consulate, however, never explained the factual basis for this legal determination.
The father and daughter speculated the inadmissibility finding related to a prior immigrant visa application the daughter had filed, in connection with a failed marriage to a U.S. citizen. They noted there were discrepancies between the daughter’s testimony and her then-husband’s testimony at the visa interview.
I explained that discrepancies between the testimonies, without more, were not sufficient to find the daughter had misrepresented material facts. I noted that if no misrepresentation occurred, no waiver was required.
Besides counseling them on the I-601 application, I advised them to first request clarification on the factual basis for the misrepresentation charge and to seek to get it dismissed.
I submitted a letter to the U.S. Consulate asserting that the daughter did not misrepresent any material facts or present any false documents to gain an immigration benefit, including when she filed her prior marriage-based immigrant visa application. I requested the Consulate to provide the factual basis for its inadmissibility determination.
Upon receiving my letter, the Consulate scheduled the daughter for a follow-up interview. After speaking with her, they agreed to vacate the inadmissibility finding and issue the immigrant visa to her. She then no longer needed an I-601 waiver to immigrate to the U.S. and reunite with her father. Her minor daughter is expected to join her in the U.S. as a derivative beneficiary.
I-130, immigrant petition for spouse (overcoming marriage fraud finding)
USCIS approves second petition
A bona fide married couple appeared at their I-130 interview without an attorney. The USCIS officer interviewed the parties separately. The officer suspected their marriage was a sham based on discrepancies at the interview. A site visit by USCIS investigators also revealed that the U.S. citizen petitioner maintained an additional residence with his elderly father.
Despite my preparing and filing a thorough response to the Notice of Intent to Deny the petition, including valid reasons for the discrepancies and the additional residence, USCIS found that the marriage was a sham and denied the petition. I informed the couple that USCIS made a mistake and that I expected their petition to be ultimately approved.
In addition to filing an appeal, I advised the couple to file a second petition with more evidence of the bona fide nature of their marriage. After interviewing the couple again, USCIS approved the second petition as well as the beneficiary’s green card application.
BIA overturns marriage fraud finding
A Moroccan man was placed in removal proceedings after USCIS found that his prior marriage to a U.S. citizen was a sham and prohibited the approval of the I-130 petition that his second U.S. citizen spouse filed for him. The prior spouse was deceased. He had children with this second spouse.
I wrote the legal brief in support of the appeal from the denial of the I-130 petition before the Board of Immigration Appeals. The BIA found that there was no substantial and probative evidence of marriage fraud.
I submitted a follow-up letter to USCIS, which then promptly approved the I-130 petition. The Immigration Court next granted our motion to terminate removal proceedings against the applicant so he may seek his green card from USCIS.
USCIS grants I-130 petition upon remand
USCIS denied a US citizen’s I-130 petition for her spouse, upon finding that the marriage was a sham. I prepared the appeal before the Board of Immigration Appeals, including a legal brief rebutting the marriage fraud claims. In response, USCIS filed a motion to remand the petition to USCIS for a new decision.
After the BIA remanded the petition, USCIS issued a second notice of intent to deny the petition. I advised the spouse on the additional documents to provide in support of the response to the notice. I also prepared a full and timely response to the notice to deny the petition. A few months later, USCIS approved the petition as well as the green card application.
I-130 & I-485, marriage-based green card application/one-step petition
A U.S. citizen lived separately from his foreign national spouse because he was stationed in another state as a member of the U.S. military. The couple did not have a joint residential lease or joint utility bills because they did not have a shared residence. The U.S. citizen also had to depart the U.S. for a long-term overseas assignment.
I counseled the couple on documents to submit to prove the bona fide nature of their marriage. I also filed a request with USCIS to schedule an early interview before the U.S. citizen’s departure from the U.S., which USCIS granted. I thoroughly prepared the couple for their interview and attended it with them. Shortly after completing the interview, the USCIS officer granted the I-130 and I-485 on the same day. It took one month from the date of filing the one-step petition for the foreign national to be granted permanent resident status.
I-601, application for waiver of grounds of inadmissibility (Extreme Hardship Waiver)
A citizen of Nigeria accumulated more than one year of unlawful presence in the U.S. before she departed the U.S. Even though she married an American citizen and had two American children with him, she moved to Canada because she was frustrated by the U.S. immigration process.
While living in Canada with her children as a permanent resident, she contacted me to help her come back to the United States on an immigrant visa. To get the waiver of the 10-year bar, she had to prove that her husband would suffer extreme hardships if he moved to Canada to be with her and their kids.
Because the two countries are integrated socially, economically and geographically, proving extreme hardships due to relocation was a major challenge. I advised the parties on the documents and information to submit, prepared their affidavits describing the extreme hardships, and wrote a legal brief explaining how the applicant qualified for the waiver. Within a few months, USCIS approved her waiver application and she came back to the U.S. to live with her family as a lawful permanent resident.
N-400, application for naturalization
Failure to Maintain Physical Presence
A Sudanese national consulted with me before she filed her second N-400 application with USCIS. The Service had denied her first N-400 application, finding that she did not have sufficient physical presence and cited to her failure to maintain a U.S. residence.
I advised her on whether and when to file the naturalization application again, prepared the new application and a supporting legal brief, and attended the interview with her. At the interview, her N-400 application was recommended for approval and she received a naturalization oath ceremony notice. She is now a naturalized U.S. citizen who may file an immediate relative immigrant petition for her foreign national spouse.
Failure to Pay Taxes
I represented a Mexican citizen at naturalization interview, where the USCIS officer asked him whether he still owed taxes. He said yes, but neglected to state this fact on his N-400 form. He had yet to enter a payment plan with the IRS. The USCIS officer issued a Request for Evidence because failure to pay taxes is grounds for denying an N-400 application.
I advised him on how to resolve the tax issue and submitted a full and prompt response to the RFE. His N-400 application was recommended for approval and he received a naturalization oath ceremony notice. He is now a naturalized U.S. citizen who may file an immediate relative immigrant petition for his foreign national spouse.
Conviction for Failure to Pay Taxes
A Palestinian national was convicted for failure to pay taxes several years before he filed for naturalization. Such a conviction may lead to the denial of naturalization. I wrote a legal brief explaining how he still met the good moral character requirement and advised the client on how to show that the positive factors outweighed the negative factor in his case.
USCIS recommended the naturalization application for approval and he is now a U.S. citizen.
U.S. CIRCUIT COURT OF APPEALS
Ginters v. Frazier, 614 F.3d 822 (8th Cir. 2010). (wrote legal briefs and presented oral argument).
Outcome: The Eighth Circuit Court of Appeals ruled specifically for the first time that the federal courts have jurisdiction to review the merits of an I-130 petition for alien relative. The court remanded the U.S. citizen’s I-130 petition for her foreign national spouse to the U.S. District Court for the District of Minnesota for a review on the merits.
Oral Argument, 12/15/2009:
Sugule v. Frazier, 639 F. 3d 406 (8th Cir. 2011) (wrote legal briefs)
Outcome: The Eighth Circuit Court of Appeals found that USCIS erred by invalidating a labor certification because there was no substantial evidence that the beneficiary committed willful misrepresentation of a material fact. The court remanded the case to the U.S. District Court for the District of Minnesota for a reinstatement of the labor certification.
Ndonyi v. Mukasey, 541 F.3d 702 (7th Cir. 2008)(wrote legal briefs and presented oral argument)
Outcome: The Seventh Circuit Court of Appeals granted the petition for review, vacated the Immigration Judge’s removal order, and remanded the case to the Immigration Court for further proceedings. The court found that the IJ and Board of Immigration Appeals erred by finding that the asylum applicant failed to prove that she suffered past persecution and has a well-founded fear of persecution in Cameroon, based on her political and religious beliefs.
NOTE: These success stories provide general information only. They are not 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.