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

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.

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.

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.

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

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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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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

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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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U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Within 21 days of receiving our Request for Supervisory Review of Immigrant Visa Refusal and Renewed Motion to Reconsider and Rescind Inadmissibility Finding under INA 212(a)(6)(C)(i), the U.S. Consulate removed the lifetime bar and instructed our client to continue the immigrant visa process. Ultimately, he received his Immigrant Visa after the new police certificate and updated proof of his U.S. citizen petitioner’s U.S. domicile and financial support were provided. Because the U.S. Consulate agreed to lift the fraud charge, no Form I-601, Application for Waiver of Inadmissibility, was required.

Born stateless, the applicant used to hold a refugee travel document that contained a visitor visa when he was a child. After he acquired citizenship in a country where he was not born, the applicant used the new passport to obtain a second visitor visa and traveled to the United States for a temporary recreational stay.

Despite being married to a U.S. citizen, he complied with the terms of his visitor visa and did not overstay the authorized period or apply for a marriage-based green card within the United States. Based on the approved Form I-130 immigrant petition filed by his U.S. citizen wife, he sought to become a permanent resident through an Immigrant Visa application at the U.S. Consulate overseas.

At the initial Immigrant Visa interview, the applicant presented his passport for visa stamping. About two months later, the U.S. Consulate conducted a re-interview in which it asked about the process he used to acquire the citizenship and obtain the passport. He explained the legal channels he used to get both. Nonetheless, the U.S. Consulate charged him with section 212(a)(6)(C)(i)(fraud/willful misrepresentation of material fact to gain a U.S. immigration benefit), upon noting it was unable to verify his acquired citizenship or the authenticity of the passport when it contacted the government authorities.

The U.S. Consulate instructed him to file a Form I-601, Application for Waiver of Inadmissibility, to be excused from the inadmissibility charge. A section 212(a)(6)(C)(i) finding prohibits applicants from receiving an Immigrant Visa without first getting an I-601 approval from USCIS.

Two months after the visa refusal, the applicant contacted me for the first time to discuss his options. In our Skype (video) consultation, I explained that one solution was to file a Form I-601 application, as the U.S. Consulate instructed. To receive the waiver, he would need to prove the extreme hardships his U.S. citizen wife would suffer if he is denied entry to the United States as a permanent resident. I noted there is never any guarantee the waiver will be granted due to the high standard of proof and the discretion involved in the decision-making.

I further pointed out that if he did not commit fraud or willfully misrepresent material facts to gain the prior B1/B2 visitor visa, the Immigrant Visa, or any other U.S. immigration benefit, he could file a Motion to Reconsider and Rescind Inadmissibility Finding with the U.S. Consulate. If such a motion is granted and the section 212(a)(6)(C)(i) bar is lifted, the I-601 waiver is not required for the visa to be issued.

The client opted to go with the request to reconsider the inadmissibility charge. After we entered into a representation agreement, I counseled him on the information and documents he needed to present to show he did not engage in fraud or willfully misrepresent material facts to receive any U.S. immigration benefit.

To support the Motion to Reconsider, I prepared a legal memorandum describing how the applicant used proper channels to obtain the passport and why the submission of this passport to the U.S. Consulate was actually immaterial to his eligibility for the Immigrant Visa, as well as the prior visitor visas he received.

Five days after receiving the Motion to Reconsider, the U.S. Consulate issued a response stating the section 212(a)(6)(C)(i) bar would remain and the applicant needed to file for an I-601 waiver. The Consulate noted the applicant had no concrete evidence to support his explanation on how he acquired the citizenship. The Consulate added that during its checks with the government authorities, it was determined beyond reasonable doubt the applicant misrepresented his case and deliberately provided false information and documents to receive an immigration benefit. They added he did not rescind his false statements when given the opportunity to do so.

In the Request for Supervisory Review and Renewed Motion to Reconsider and Rescind Inadmissibility Finding, I stressed the important points the U.S. Consulate missed when it issued the response affirming the section 212(a)(6)(C)(i) charge.

In reply to this Request and Renewed Motion, the U.S. Consulate sent a response 21 days later stating the section 212(a)(6)(C)(i) charge had been lifted. Five months later — following the completion of administrative processing — my client received the Immigrant Visa to join his wife in the United States, without needing to file for and obtain an I-601 waiver.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cheers,

Dyan Williams

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