Tag Archives: 212(a)(6)(C)

Common Reasons for Visa Refusal or Visa Denial

A visa refusal or denial brings disappointment, frustration, and confusion over what to do next to enter the U.S. lawfully.

The U.S. Embassies and Consulates ultimately decide whether to grant you a nonimmigrant visa (e.g. B-1/B-2 visitor, F-1 student, H-1B temporary worker) or immigrant visa (e.g. family-based or employment-based) for admission to the United States. Proving you qualify for a visa is rarely easy.

Before you apply for a visa, it’s important to know the common reasons for a refusal or denial. They stem from the Immigration & Nationality Act, including sections 221(g)(lack of information or documents to show visa eligibility), 214(b)(failure to overcome presumption of immigrant intent in nonimmigrant visa cases) and 212(a)(inadmissibility grounds).

Soft refusal

1. Section 221(g) – Incomplete Application or Supporting Documentation

A visa refusal under section 221(g) of the INA means you did not present all the necessary information or documents for the consular officer to determine your visa eligibility. This is a soft refusal because you get the opportunity to correct the problem before a final decision is made.

In a 221(g) notice, you will be instructed on what additional evidence is needed and how to submit it. Examples include financial documents, affidavits of support, employment letter, and criminal records. If you do not submit the requested documents within one year, you will need to reapply for the visa and pay a new application fee.

You may also be informed that the Consulate will conduct further administrative processing of your application (e.g. security checks or further investigation by another agency such as USCIS) before it instructs you on next steps or issues a decision.  This can be triggered by database hits, fraud prevention unit investigations, alerts lists, and administrative errors.

Most administrative processing is resolved within 60 days of the visa interview, but the timing varies based on individual circumstances. For example, if the case is forwarded to USCIS or another agency for further review, this could take several months to complete.

When the documents submitted are not enough to overcome the 221(g) refusal or administrative processing reveals negative information that makes you inadmissible, your visa request will be denied.

Hard denial

2. Section 214(b) – Visa Qualifications and Immigrant Intent

Under section 214(b) of the Immigration and Nationality Act, a nonimmigrant is presumed to have immigrant intent, i.e. intent to remain permanently, rather than temporarily, in the United States. Nonimmigrant visa applicants (except for H-1B and L-1s) have the burden to overcome this presumption and prove they have no immigrant intent.

Section 214(b) denials apply only to nonimmigrant visa categories. For instance, B-1/B-2 visitor visa applicants must show they have strong ties to their home country, which they cannot abandon, and intend to visit the U.S. temporarily for business or pleasure. F-1 student visa applicants must further show they are qualified to pursue a full course of study, have the financial resources to pay tuition and living expenses, and intend to return to their country after completing their studies.

A 214(b) denial notice will state you have not demonstrated strong ties to your home country to overcome the presumption of immigrant intent and therefore do not meet the standards for a visa grant. The real, underlying reason, however, may be different.

Do you fit the profile of a person who tends to work in the U.S. without authorization or will likely overstay? Did you request a change of status from B-2 to F-1 during a previous trip to the U.S.? Have you ever entered the Diversity Visa lottery or had an I-130 immigrant petition filed on your behalf? Did you seem nervous during the visa interview? Did you give birth in the U.S. during a temporary visit? Do you make regular visits to the U.S. and stay for extended periods each time?

A consular officer’s doubts about your true intentions could lead to a 214(b) visa denial. It is often used as catch-all provision even when there is no valid reason to deny your visa application.

3. Section 212(a) – Inadmissibility Grounds

Section 212(a) of the INA lists the various grounds on which you are inadmissible to the U.S. (i.e. barred from entering the U.S. or from obtaining a visa).

Section 212(a)(6)(C)(i) of the INA states that you are permanently inadmissible if you, 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 U.S. or other immigration benefit.

Section 212(a)(6)(C)(ii) of the INA inflicts a permanent bar against you when it is determined that you made a false claim to U.S. citizenship to gain a benefit under U.S. immigration law, federal law or state law.

Section 212(a)(2) of the INA lists crime-related grounds that permanently bar you from entering the U.S. They include crimes involving moral turpitude (that do not qualify for the petty offense or youthful offender exception), controlled substance violations, multiple criminal convictions, and controlled substance trafficking (i.e. U.S. consular officer or U.S. government knows or has reason to believe you are a controlled substance trafficker).

Section 212(a)(9)(B)(i)(I) of the INA states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

Section 212(a)(9)(A)(i) of the INA states you have a five-year bar to reentry from the date of your removal if:

  • You were removed upon arrival in the U.S., i.e. ordered removed in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry.
  • You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge as an arriving alien.

Section 212(a)(9)(A)(ii) of the INA states you have a 10-year bar to reentry from the date of your removal if:

  • You were ordered removed, other than as an arriving alien, including by an immigration judge in removal proceedings.
  • You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to a removal order.
  • You departed the U.S. willingly, but before removal proceedings were concluded.
  • You left the U.S. while a removal order was outstanding.

Section 212(a)(9)(A)(ii) of the INA states you have a 20-year bar to reentry from the date of your removal if you were ordered removed from the U.S. more than once, whether as an arriving alien or not. It permanently bars you from reentry from the date of your removal if you were convicted of an aggravated felony.

Section 212(a)(9)(C) of the INA states you are permanently barred if you reentered or attempted to reenter the U.S. illegally after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S. The permanent bar, due to illegal entry or attempted illegal entry, applies only if you accrued the (1+ year) unlawful presence or were ordered removed on or after April 1, 1997, or entered or attempt to reenter the U.S. unlawfully on or after April 1, 1997.

Notification of Visa Refusal or Denial

When a consular officer refuses or denies your visa request, you will be informed orally and given a written notice with boxes checked off from a boilerplate list of statutory law.

In both immigrant and nonimmigrant visa cases, the officer must provide timely, written notice of:

  • The provision(s) of law on which the refusal is based
  • Any waiver of inadmissibility available (when  212(a) ineligibility grounds apply)

In immigrant visa cases, the written notice should include the factual basis for the refusal (unless such information is classified) ). The consular officer should refer to pertinent written or oral statements of the applicant, a conviction, medical report, false document, previous refusal, or the like, as the basis of the refusal.  The officer is also instructed to explain the law simply and clearly.

In Kerry v. Din, the U.S. Supreme Court issued its June 15, 2015 decision stating consular officers need not provide the factual basis for an immigrant visa denial when terrorism or national security concerns are involved. In that case, a foreign national spouse was denied her immigrant visa based on an unexplained allegation that her Afghani, U.S. citizen husband (the I-130 petitioner) supported terrorism. The court ruled that in these circumstances, a consular officer may simply cite to the statutory law without providing specific reasons for the visa denial.

In nonimmigrant visa cases, the written notice rarely informs you of the specific facts on which the consular office relied to made the decision. Usually, it will only cite to the statute (law) under which your visa was denied. Therefore, it helps to listen closely to the consular officer’s oral notice.

Consult an immigration attorney with expertise in visa refusals and denials

To prevent or overcome a visa denial, you should seek guidance from an immigration attorney who deals with consular processing. A skilled attorney can evaluate your case to verify your visa eligibility, help you respond to a request for more documents, challenge erroneous inadmissibility findings, and file for any necessary and available waivers.

For more information, read our related article, Potential Solutions for Visa Refusal or Visa Denial.

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: Chris Rimmer

Grant of Motion to Vacate Inadmissibility (Misrepresentation) Finding + Issuance of F-1 Student Visa = A True Success Story

On February 13, 2017, the U.S. Embassy granted my client’s Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i) (willful misrepresentation of material fact to gain immigration benefit) and issued his F-1 student visa. He may now pursue his studies in the United States, starting in fall 2017, after he was previously denied the visa two and a half years ago for misrepresenting information in his application.

The U.S. Embassy approved the motion and F-1 visa request within 3 weeks of when my client appeared for his visa interview and asked for a rescission of the inadmissibility finding.

Prior to the visa interview, I guided him in gathering documentary evidence and preparing his affidavit (written testimony) explaining his reasons for failing to disclose certain information in his prior student visa application. Citing to the record, I prepared the strongest legal briefs in support of a Motion to Reconsider and Rescind Inadmissibility Finding, as well as a 212(d)(3)(A) nonimmigrant waiver application as a backup option.

In his first F-1 student visa application, my client failed to disclose his prior names and previous visit to the United States. After the U.S. Embassy charged him as inadmissible and denied his visa due to misrepresentation, it instructed him to file for a nonimmigrant waiver of inadmissibility.

He did not file for the waiver, but instead hired another attorney to challenge the inadmissibility finding. The attorney submitted a Request for Advisory Opinion to the Visa Office, but did not counsel him to re-apply for the F-1 student visa and appeal directly to the U.S. Embassy to vacate the inadmissibility finding.

By the time he consulted me, he had been waiting for more than 2 years since his first F-1 visa application was denied and more than 1 year since his prior attorney filed the Request for Advisory Opinion (with no decision to date).

A willful misrepresentation charge under section 212(a)(6)(C)(i) permanently bars an applicant from obtaining a visa or entering the United States. To be inadmissible on this ground, he must not only willfully misrepresent information, but the information must also be material to his visa eligibility.

After reviewing my client’s case, I concluded his refusal to disclose information – which was specifically requested on the visa application form – did not affect whether he qualified for the visa. He also had compelling reasons for not providing the information, which had nothing to do with obtaining the visa.

I advised him to re-apply for the F-1 visa and, as option A, file a motion to vacate the inadmissibility finding directly with the U.S. Embassy.  He also agreed to have a 212(d)(3)(A) nonimmigrant waiver request prepared, as option B, in the event the U.S. Embassy denied his motion to vacate.

The U.S. Embassy agreed to vacate the 212(a)(6)(C)(i) charge and issue the F-1 visa after I presented a convincing legal argument, persuasive documentary evidence, and a detailed affidavit from my client showing he needed to enter the United States to attend school, has strong ties to his country, would pose no harm to the community, and did not commit material misrepresentation to be inadmissible.

The 212(d)(3)(A) waiver request was available as an alternative solution, but it normally takes at least four months to process. The client needed to receive his visa by May 1st to confirm attendance at the school, which had deferred his admission for more than two years and could not hold his place beyond fall 2017.

He was relieved and happy when the U.S. Embassy granted the motion to vacate inadmissibility finding and issued the F-1 visa by February 13th, which spared him from using the lengthier waiver application process.

Because the permanent bar to receiving a visa or entering the United States under 212(a)(6)(C)(i) no longer exists, it will be much easier for him to obtain visa renewals and travel to the United States.

My client, who lives in East Asia, communicated with me by Skype initially, and then by telephone and email during the course of representation. At the time he consulted me, he had contacted another attorney to file a 212(d)(3)(A) waiver request. The attorney told him it would take at least 4 months to prepare the waiver application and if he wanted it sooner, he would have to pay a much higher fee. The attorney did not advise him to file a motion to vacate the inadmissibility finding with the U.S. Embassy, even though this was the better option under the circumstances.

I prepared both the motion and the 212(d)(3)(A) waiver request at a reasonable fee within 2 months. The foreign national was pleased with the collaborative process and thankful for the favorable, timely results. This is a true success story in early 2017 for Dyan Williams Law PLLC.

Helping clients overcome visa refusals through the rescission of inadmissibility findings or through waiver grants are among my top areas of expertise. Enabling a foreign national to obtain a visa to enter the U.S. lawfully – especially after he has been deemed inadmissible- takes a lot of time, attention, and work. But the potential benefits are worth the dedicated effort.

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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Photo by: Tara R.

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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Photo by: Ian D. Keating

What should you do to get an I-601 waiver for immigration fraud or misrepresentation?

Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.

If you are inadmissible due to fraud or misrepresentation, you need an I-601 waiver, available under INA § 212(i), to get a green card or immigrant visa. There is no waiver for false claims to U.S. citizenship, but you may have defenses and exceptions to establish the bar does not apply to you.

 

What Must You  Submit When Requesting an I-601 [INA § 212(i)] Waiver?

A section 212(i) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, or K visa petitioner will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

(NOTE: A U.S. citizen or permanent resident son or daughter is not a qualifying relative for the purpose of proving extreme hardship in an I-601 fraud waiver request.)

Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.

Immigration fraud/misrepresentation is particularly serious. The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(i) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the fraud/willful misrepresentation bar applies, who qualifies for the I-601 [INA § 212(i)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)? 

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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: Kevin Dooley

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