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Executive Order Cracks Down on Birth Tourism: Effects & Consequences for Nonimmigrants

Posted on August 21, 2026 | Comments Off on Executive Order Cracks Down on Birth Tourism: Effects & Consequences for Nonimmigrants

Entering the U.S. on a nonimmigrant visa to give birth on American soil and obtain birthright U.S. citizenship for the newborn child is known as Birth Tourism. Executive Order 14419, issued by the Trump Administration on August 6, 2026, is meant to end Birth Tourism and further prohibit any foreign national from helping a visitor to enter the U.S. to give birth.

Link Between Birthright Citizenship and Birth Tourism

Under the 14th Amendment of the U.S. Constitution, birth in the United States gives the child automatic citizenship with all its rights and privileges, even if the parents are not U.S. citizens or permanent residents or have no authorized stay in the U.S.

Birth citizenship also provides the foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or daughter may file an immigrant petition for a parent in the Immediate Relatives category, which has no numerical limits on immigrant visas available.

Prior Executive Order to Limit Birthright Citizenship 

The Trump Administration has stated that “Citizenship is not a commodity to be acquired through calculated exploitation and evasion of the immigration laws, such as by entering the United States on a nonimmigrant visa for the purpose of giving birth within the Nation’s borders.”

The Administration previously issued Executive Order 14160 on January 20, 2025, to deny the issuance of documents or acceptance of documents recognizing U.S. citizenship to two groups of U.S.-born children:  (1) those whose mother was unlawfully present in the United States and whose father was not a U.S. citizen or  permanent resident at the time of birth or (2) those whose mother’s presence in the United States was lawful but temporary, and whose father was not a U.S. citizen or permanent resident at the time of birth.

Several U.S. states and nonprofit organizations challenged the Executive Order in federal courts, which blocked its implementation. On June 30, 2026, the U.S. Supreme Court settled the question in Trump v. Barbara, a class-action lawsuit filed by the American Civil Liberties Union and other groups on behalf of affected families. In a 6-3 decision, the Supreme Court ruled that Executive Order 14160 violates the 14th Amendment, which is interpreted to mean that children born on American soil are U.S. citizens, regardless of whether the parents are unlawfully or temporarily present in the U.S.

Chief Justice John Roberts wrote: “Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ …We keep that promise today.”

Due to the federal courts’ orders and the Supreme Court’s decision, the Executive Order to restrict birthright citizenship never went into effect.

Executive Order to End Birth Tourism is Narrower

About a month after the Supreme Court’s decision, the Trump Administration issued Executive Order 14419 to end Birth Tourism. Instead of redefining birthright citizenship, it reduces access to it.

The U.S. Department of State (DOS) and Department of Homeland Security (DHS) are instructed to update rules, policies, procedures or guidance as necessary and to take actions to enforce the Executive Order, including:

  • denying a visa or other travel authorization to an applicant entering or attempting to enter the United States for the purpose of engaging in birth tourism;
  • revoking the visa or travel authorization and permanently barring entry of any applicant who enters or attempts to enter the United States for the purpose of engaging in birth tourism;
  • denying entry to or removing an applicant who previously engaged or plans to engage in birth tourism;
  • fighting against entities, organizations, or individuals, within or outside of the United States, responsible for facilitating or enabling birth tourism in any manner.

The DOS and DHS may exempt a foreign national from actions taken pursuant to this order on humanitarian or national interest grounds, based on their discretion.

The Executive Order is a change in policy, not U.S. immigration law or the U.S. Constitution. Furthermore, Birth Tourism involves entries for the main purpose of giving birth, not incidental pregnancy during lawful H-1B employment, F-1 studies, or other legitimate authorized stays.

Implementation of Birth Tourism Prevention Task Force

On August 12, 2026, the U.S. Department of State said it established the Birth Tourism Prevention Task Force and “is using all available tools to defend the integrity of U.S. citizenship, ensure nonimmigrant visas are used only for their lawful and intended purposes, and prevent their exploitation through birth tourism.”

The Fact Sheet from the Office of the Spokesperson states the Task Force:

  • reviews the activities of visa holders worldwide to identify instances of birth tourism, take action to revoke visas of those who engage in or facilitate it, and dismantle the networks that profit from this abuse.
  • addresses the abuse by analyzing and connecting information held across the Department and other federal agencies, including the Department of Homeland Security (DHS).
  • coordinates with the Department of State to address birth tourism on a global scale, examining travel histories of individuals from all around the world in order to end this exploitation and abuse.
  • has taken action to revoke more than 600 visas from foreign nationals across the globe to safeguard the nation from this abuse.

Previous Actions Against Birth Tourism

In the past, there was no specific law, regulation or policy prohibiting birth tourism per se or preventing a pregnant woman from entering the United States. Nonetheless, U.S. consular officers and customs officers often view it as a misuse of the visitor visa status and a gaming of the immigration system to give the child automatic citizenship.

On January 24, 2020, during the first term of the Trump Administration, a new rule was issued to restrict travel on a B visitor visa primarily to give birth in the United States. The updated U.S. Department of State Foreign Affairs Manual states the following on B-2 Tourist Visas:

“Travel to give birth in the United States: Visiting temporarily for pleasure does not include travel for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States. Any B nonimmigrant visa applicant who you have reason to believe will give birth during their stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child. The applicant can overcome this presumption if you find that the primary purpose of travel is not obtaining U.S. citizenship for a child.”

If officers have reason to believe the applicants will give birth during their stay in the United States, they are required to presume that giving birth to obtain U.S. citizenship is the applicant’s primary purpose of travel.  The applicant may overcome the presumption if they show, to the consular officer’s satisfaction, they have a different and permissible primary purpose of travel.

Examples are: (1) applicant’s primary purpose for travel is to visit a dying family member, and during the visit the applicant may give birth in the United States because the pregnancy due date overlaps with the family member’s last expected months of life; (2) medically complicated pregnancy and arrangement for specialized medical care in the United States, because such specialized care is not available in or near the country where the applicant resides.

If the officer sees the applicant is pregnant at the time of applying for a tourist visa or requesting admission as a visitor, he may refuse the visa or deny entry. This is why birth tourists who hail from various countries such as China, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the United States when their pregnancy is not so obvious.

Because a visitor visa may be used for medical treatment, your showing that giving birth in the United States served or serves a health purpose can be a positive factor. An example is if the pregnancy comes with high risks or serious complications. When you declare you are coming to the U.S. to give birth, and there is a lack of medical care in or near your country, the officer may grant the visa or admission based on proof of strong ties to your country, nonimmigrant intent, sufficient funds to cover all medical costs, and legitimate purpose of travel.

Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth can help prevent a visa refusal or denial of admission. Ultimately, however, the consular officer or customs officer has discretion to determine whether having a baby in the U.S. is inconsistent with the purpose of a visitor visa. If they find that this is your main purpose, instead of for recreational or business travel or medical treatment, they will refuse your request, even if you can cover the medical expenses and will not receive government assistance to pay the bills.

Practical Effects and Consequences

Longstanding U.S. immigration law allows a consular officer to deny a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) (failure to overcome presumption of immigrant intent). Giving birth during a prior visit might cause the officer to suspect you will do this again.

A non-resident parent who travels with a U.S. citizen child may face tougher scrutiny at the U.S. port of entry. A customs officer who discovers you had a child during a prior visit in the U.S. may deny your request for admission on a temporary visa and even issue an expedited removal order, which carries a five-year bar under INA 212(a)(9)(A)(i). Until the bar expires, the person will need a Consent to Reapply for Admission or approved Form I-212 application to receive a U.S. visa or U.S. entry.

In some cases, a consular officer or customs officer may issue a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain a visa or entry to the United States), which is a lifetime bar. When such an inadmissibility finding is made, you may appeal directly to the agency to reconsider and rescind the decision on the basis that giving birth in the U.S., by itself, does not make you inadmissible. But as long as the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(3) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States

Even if you succeed in gaining a visitor visa or entering the United States as a visitor to give birth, you might still encounter problems in the future when you apply for a new visa or admission as a nonimmigrant. Also, in some cases, an existing visa may be revoked or cancelled. Federal regulations under 22 CFR 41.122 allow U.S. consular officers to revoke a nonimmigrant visa at any time, at their discretion. A U.S. Customs & Border Protection officer at the U.S. port of entry may also revoke (physically cancel) the visa in certain situations. 

Short of banning birthright citizenship, the Executive Order serves to discourage nonimmigrants from traveling to the U.S. specifically to give birth and get automatic citizenship for their newborn children. Nonimmigrants who have visas to work or study in the United States should be less affected than temporary visitors, as giving birth in the U.S. would be more incidental to their authorized stay.

The DOS and DHS are expected to rollout implementing guidance on how they will apply the Executive Order. Whether this Presidential Action holds up under any federal court action will need to be monitored over the next several months.

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This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in citizenship, expedited removal, immigrant visa, immigration fraud, INA 212(a)(6)(C)(i), nonimmigrant visa, The Legal Immigrant - Immigration Blog, willful misrepresentation

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CBP Vacates Expedited Removal Order + Rescinds INA 212(a)(6)(C)(i) Charge = A True Success Story

Posted on February 6, 2025 | Comments Off on CBP Vacates Expedited Removal Order + Rescinds INA 212(a)(6)(C)(i) Charge = A True Success Story

Within 5 months, the U.S. Customs & Border Protection (CBP) vacated its Expedited Removal Order (ERO) and INA 212(a)(6)(C)(i) inadmissibility finding against my client, upon receiving our Motion to Reconsider. The CBP agreed he should not have been charged as inadmissible under INA 212(a)(7)(A)(i)(I) (intended immigrant without proper immigrant visa) and barred for 5 years from the United States, pursuant to INA 212(a)(9)(A)(i).

We also convinced the CBP that the permanent bar under INA 212(a)(6)(C)(i) was made in error. The legal argument and documentary evidence showed he did not use fraud or willfully misrepresent any material fact to obtain H-1B status.

Refusal of H-1B Admission to the United States Despite the Presentation of Valid Travel Documents and No Prior Violation of Nonimmigrant Status

At the U.S. port of entry, my client presented his valid Canadian passport and Form I-797, Approval Notice for H-1B petition, when he requested admission in H-1B status. He was, however, placed in secondary inspection for further questioning. Upon determining the true purpose of his request for admission was unclear, the CBP issued the Expedited Removal Order under (7)(A)(i) and included the additional inadmissibility ground, (6)(C)(i). The CBP did not give him the option of withdrawing his application for admission to the United States.

The Record of Sworn Statement indicated my client had good-faith intent to resume his employment at the H-1B petitioner, even though he had quit his position prior to departing the U.S. The Form I-797A, Approval Notice for the H-1B petition was still valid and was not withdrawn by the petitioner or revoked by USCIS.

Facts and Arguments Supporting Reconsideration of Inadmissibility Findings

Although my client took an extended break from his H-1B employment, he deemed it to be a “mutual separation” at most. It was, after all, the employer’s suggestion that he take a break when he declined to attend the company retreat due to health issues and personal reasons. He truly believed the company was open to having him resume his H-1B position.

While he was overseas, the employer was not required to pay him a salary and he was not obligated to do any work to maintain his H-1B status or avoid getting the H-1B status revoked. He did not consider his departure to be a final termination of employment or a paid leave of absence, and the employer did not indicate to him that it was.

Even if he had terminated his employment, through voluntarily resignation, he did not violate his H-1B status or accrue any unlawful presence to be prohibited from re-entering the U.S. He was not subject to the 3/10- year bar to reentry under INA 212(a)(9)(B)(i).

The federal regulations at 8 CFR 214.1(l)(2) allow a discretionary grace period. H-1B workers may be considered as having maintained status following the termination of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.

During the 60-day grace period, the H-1B worker may find a new employer to file an H-1B extension of stay and change of employer request with USCIS. Otherwise, he may leave the United States within that period to avoid a violation of status. My client departed the United States well before the end of the grace period and spent his extended break in his native country.

At the time of his departure, my client and his manager discussed the possibility of his returning to his H-1B position after he recovered from his burnout. A month before he traveled back to the U.S., he had a check-in call with his manager, which made him reasonably believe he could resume his position.

In the Motion to Reconsider, I pointed out that a terminated employee with no option of returning to his employment or of being rehired would not have such a check-in discussion with an employer. The petitioner gave him no confirmation of a final termination of employment and no notice that he must not use the H-1B Approval to request admission to resume his position.  

When he requested H-1B admission at the U.S. port of entry, my client fully intended to continue discussions with his manager to restart his position. If he really had no plans to return to his employment, he had a Canadian passport to request entry as a B1/B2 visitor to wrap up his personal affairs and continue business discussions with his manager.

An applicant may receive B-1 status if he is coming to the United States to engage in commercial transactions, negotiate contracts, consult with business associates, and participate in business meetings or conferences. My client could have legitimately requested admission as a visitor if his sole purpose was to engage in recreational activities or to have further employment negotiations or business meetings with his manager and then timely depart the United States to seek readmission in H-1B status.

He, however, chose to request H-1B admission because he fully intended to return to the employer. He assumed they were open to having him rejoin the company.

In the initial consultation, I explained that he had two options:

1. File a Motion to Reconsider the Expedited Removal Order and INA 212(a)(6)(C)(i) Bar with the CBP. A fully positive outcome in this requested relief gets rid of both the 5-year bar due to the Expedited Removal Order and the permanent bar under (6)(C)(i).

The drawback is that such motions are not routinely filed with CBP and are rarely granted, except in circumstances where the decision was clearly in error.

It is also better to submit the motion within 30 days of the expedited removal order, which is not a statutory requirement, but in accordance with a regulation generally related to motions with an immigration officer. A favorable review on the merits, if any, is completely within the discretion of the agency.

2. File a Request for Consent to Reapply for Admission Following Expedited Removal Order and an Application for 212(d)(3) Nonimmigrant Waiver for the (6)(C)(i) inadmissibility finding. This is the more common remedy and official procedure under U.S. immigration law. If granted, the applicant may then receive the U.S. visa or admission to the U.S. as a nonimmigrant, if he is otherwise eligible for such entry.

The drawback is that a CTR and 212(d)(3) waiver grant eventually expire and may last for only a few months to one year. The applicant may need to reapply for this relief if he travels overseas and seek readmission following the expiration of the CTR and waiver grant.

In addition, if the person needs a visa stamp for the purpose of his trip to the U.S., he must go through the U.S. Consulate or Embassy to request the CTR and 212(d)(3) waiver in connection with the visa application. This creates an extra hurdle because the U.S. Consulate or Embassy must first recommend the waiver for it to be forwarded to the U.S. Customs & Border Protection, Admissibility Review Office (ARO) for adjudication. If there is no recommendation, there is no review by CBP-ARO on the merits of the applications.

Canadian citizens may file for the Consent to Reapply for Admission (by a Form I-212 application) and 212(d)(3) waiver (by a Form I-192 application) directly with the CBP-ARO when they do not need a visa stamp in their passport for the purpose of their U.S. entry. But in situations where they must have a valid visa for U.S. entry, they must request the waiver through consular processing. Canadians need a visa stamp when they are:

  • Treaty traders and investors (E Visa).
  • Foreign citizen fiancé(e) (K-1 Visa), and the fiancé(e)’s children (K-2 Visa).
  • A U.S. citizen’s foreign citizen spouse traveling to reside in the U.S. while awaiting final completion of the process of immigration (K-3 Visa), and the spouse’s children (K-4 Visa).
  • Spouses of lawful permanent residents (V-1 Visas), and the spouse’s children who are traveling to reside in the U.S. while awaiting final completion of the process of immigration (V-2 Visas).
  • Non-immigrants traveling to the United States for work (Non-Immigrant Visas), including:
    • Canadian government officials (A Visas), if entering the U.S. for temporary or permanent assignment.
    • Officials and employees of international organizations (G Visas), if entering the U.S. for temporary or permanent assignment; and
    • NATO officials, representatives, and employees, only if they are being assigned to the U.S. (as opposed to an official trip).

Motion to Reconsider with CBP Results in Favorable Decision Within 5 Months

As a Canadian citizen, my client could have applied directly with CBP-ARO for the Consent to Reapply for Admission and 212(d)(3) waiver to seek re-entry in H-1B status or B1/B2 visitor status. But he opted for the Motion to Reconsider because the evidence showed the Expedited Removal Order and INA 212(a)(6)(C)(i) findings were made in plain error. 

The normal processing time for a Motion to Vacate Expedited Removal Order with CBP is at least 6 months and, in some cases, may take 1 year or more. Because such motions are not the common or official procedure under statutory law, no Acknowledgement Notice or Receipt Notice is provided by CBP. A review by CBP is completely within their discretion.

While processing times are similar for Consent to Reapply for Admission and 212(d)(3) waiver applications, status updates may be requested from the U.S. Consulate or Embassy. This is also the formal path that U.S. immigration agencies expect applicants to take when they have INA 212(a)(9)(A) and (6)(C) bars.

In this case, the CBP agreed to vacate the Expedited Removal Order and the willful misrepresentation charge, as well as correct the record with a retroactive grant of withdrawal of application for admission. This timely and wholly positive outcome is a true success story for the client and Dyan Williams Law PLLC.

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The Legal Immigrant provides general information and is for educational purposes only. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in expedited removal, H-1B, immigration fraud, INA 212(a)(6)(C)(i), nonimmigrant visa, success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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Can You Get a U.S. Visa if You Have a Conviction for or Admit to a Drug Offense?

Posted on May 19, 2023 | Comments Off on Can You Get a U.S. Visa if You Have a Conviction for or Admit to a Drug Offense?

If you were convicted of or admit to committing a drug offense, this subjects you to a permanent bar from the United States. This means you will not be eligible to receive a U.S. visa or admission to the U.S. on crime-related and perhaps health-related grounds. There are, however, exceptions to the rule.

That said, is Prince Harry’s U.S. visa subject to revocation due to his public admission to illicit drug use? He does this in his memoir book Spare and in several media interviews. While this might be no big deal for the Duke of Sussex, such public admissions would typically carry high U.S. immigration risks.

In episode 14 of The Legal Immigrant, you will learn 4 tips to consider in dealing with the U.S. immigration consequences of a controlled substance violation:

1.Heritage Foundation sues DHS to obtain copy of Prince Harry, Duke of Sussex’s U.S. immigration records

2. Possible visa options for Prince Harry, Duke of Sussex

3. Tip #1 – Verify whether this is a conviction for or admission to committing the essential elements of a specific drug offense

  • Definition of a “conviction” for a drug offense under U.S. immigration law 6:09 Definition of an “admission” to a drug offense under U.S. immigration law
  • Definition of a “controlled substance” under U.S. federal law
  • Lying about a material fact on a visa application may lead to a finding of fraud or willful misrepresentation to obtain U.S. immigration benefits, which is a permanent bar under INA 212(a)(6)(C)(i)

4. Tip #2 – Consider the applicant’s age at the time of the drug offense

5. Tip #3 – Be aware of the separate, health-related inadmissibility bar related to drug use, under INA 212(a)(1)(A)(iv)

6. Tip #4 – Confirm eligibility for a waiver if you are found inadmissible due to a controlled substance violation or due to your being identified as a drug abuser or addict

  • Section 212(d)(3) nonimmigrant waiver for nonimmigrants who are found inadmissible due to drug offenses or due to being identified as a current drug abuser or addict
  • Factors considered in 212(d)(3) nonimmigrant waiver requests
  • Section 212(h) of the INA provides a waiver for immigrants who are found inadmissible for drug offenses in only one situation: that is, a single conviction or legal admission to committing one controlled substance offense that involves possession of marijuana, 30 grams or less
  • Eligibility requirements in Form I-601/INA 212(h) immigrant waiver requests 16:48 No immigrant waiver if you are if you are identified as a current drug abuser or addict and found inadmissible on health-related grounds under INA 212(a)(1)(A)(iv). You may, however, overcome this inadmissibility if the drug abuse or addiction is found to be in remission.

To listen, click HERE for Episode 14 on The Legal Immigrant podcast or find it on Apple Podcasts or Google Podcasts. 

To watch the YouTube video, click HERE.  To read the transcript, click HERE. 

The Legal Immigrant provides general information only from Dyan Williams Law. U.S. immigration laws, policies and regulations may change, following the publication of this content. Do not consider it as legal advice. Each case is different. Even cases that seem similar can have different outcomes. 

To receive guidance on the U.S. immigration consequences of a record of controlled substance offenses, you may submit an email to info@dyanwilliamslaw.com or online message at www.dyanwilliamslaw.com.

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Posted in immigration consequences of criminal convictions, immigration fraud, INA 212(a)(6)(C)(i), The Legal Immigrant - Immigration Blog, Videos, waiver

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

Posted on January 2, 2021 | Comments Off on 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 The Office of the Legal Adviser for Consular Affairs (LegalNet), 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. LegalNet 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. LegalNet 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.

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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 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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Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

Posted on July 6, 2020 | Comments Off on Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

On June 26, Weiyun “Kelly” Huang, owner of the fictitious companies, Findream LLC and Sinocontech LLC, was sentenced to 37 months in federal prison for conspiracy to commit visa fraud. Her companies provided false employment verification records to foreign nationals seeking F-1 or H-1B visa status.

The U.S. Immigration & Customs Enforcement (ICE) played a key role in the investigation, which created ripple effects on persons who received F-1 or H-1B work authorization by using a job offer letter, payroll records or other employment verification documents from Findream or Sinocontech.

F-1 and H-1B Work Authorization Requires Legitimate Employment

An F-1 visa allows an international student to study in the United States at a university or other academic institution.  F students may engage in practical training during their academic program or after it ends. Curricular Practical Training (CPT) and Optional Practical Training (OPT) are the two types of training that provide work experience related to the field of study.

Eligible students may apply for up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). All periods of pre-completion OPT, however, are deducted from the available period of post-completion OPT.

The OPT employment can be part time (at least 20 hours per week on post-completion OPT) or full time; involve multiple short-term employers, contract work, self-employment, or agency work; and be paid or unpaid (as a volunteer or intern, as long as labor laws are not violated). The student must report all employment to their Designated School Official (DSO) to maintain status.

While a job offer is not required to apply for OPT, the student may not have a cumulative total of 90 days of unemployment during the 12-month OPT period. Otherwise, they fall out of status and no longer qualify for a change or extension of status.

Students may apply for an additional 24 months of OPT if they have a degree and are employed in a STEM (Science, Technology, Engineering or Mathematics) field. An additional 60 days of unemployment is allowed during the 24-month extension, which means the student may be unemployed for a total of 150 days (i.e. 90 + 60 days) during the entire OPT, 36-month period. Exceeding 60 days of unemployment during STEM OPT means the student is out of status and is ineligible for a change or extension of status.

For the 24-month STEM OPT extension, the DSO requires the student to have an existing job offer from a U.S. employer and to submit a completed Form I-983 (training plan) that is signed by the student and employer.

Section 3 to Section 6 on the Form I-983 requests information on the company, the agreed-upon practical training schedule and compensation, and the formal training plan, respectively. Unlike regular OPT employment, STEM OPT employment must be paid.

An H-1B visa allows U.S.-based employers to temporarily employ foreign nationals in specialty occupations. Foreign nationals with H-1B status may stay in the U.S. for three years, with the possibility of extending their stay for a total of six years. H-1B status may be extended beyond the six-year limit in certain situations, such as when 365 days or more have passed since the filing of an application for labor certification or immigrant petition (Form I-140) for the beneficiary.

F-1 students with a timely filed H-1B petition and change of status request, and whose F-1 employment authorization will expire before the change of status to H-1B occurs (typically October 1), may be eligible for a cap-gap extension in the United States. In many cases, the OPT employment or STEM OPT employment is what allows the F-1 student to change to H-1B status without departing for visa processing at the U.S. Consulate.

ICE Investigations of Work Permit Fraud Schemes Continue

ICE’s crackdown on F-1 and H-1B visa fraud schemes spell trouble for international students and foreign national workers who use fake job offers to obtain F-1 OPT, F-1 STEM OPT, F-1 CPT, or H-1B status.

ICE may conduct on-site visits to confirm the visa holder is actually working for the employer and performing the appropriate duties. When little-known companies like Findream and Sinocontech show a high number of F-1 OPT and STEM OPT workers, this can prompt further investigation.

In March 2019, the United States filed a criminal complaint against the owner of Findream, with an affidavit from an FBI Special Agent stating it was a company on paper only, with no actual physical presence, and was created for the purpose of providing false verifications of employment to F-1 visa holders seeking to extend their stay in the U.S. via the OPT program.

The indictment stated that Huang advertised Findream as a “startup company in technology services and consulting,” with clients in China and the U.S.  She used a China-based website, “Chinese Looking for Job,” and a China-based WeChat platform, “Job Hunters of North America,” to advertise Findream and Sinocontech to F-1 visa holders in the U.S. seeking employment and H-1B visas.

The companies did not deliver any technology or consulting services, or employ any of the individuals who responded to the ads, the indictment stated. In exchange for a fee, Huang and the companies provided job offer letters and employment verification letters as proof of employment, the charges alleged. Falsified payroll records and tax forms were also said to be provided.

According to the indictment, the fraud scheme allowed at least 2,685 customers to list Findream or Sinocontech as their employer to extend their F-1 status. Subsequently, many F-1 and H-1B visa holders, particularly from China, had their visas revoked or denied or were refused entry to the United States (following travel abroad) because they had listed Findream or Sinocontech to receive work authorization.

These types of ICE investigations are ongoing. Recent reports indicate that F-1 students, most from India, have received notifications from U.S. Consulates that their visas have been revoked because they used job offer letters from Integra Technologies LLC and AZTech Technologies LLC to obtain OPT, STEM OPT and, in some cases, CPT work permits.

Through consultations with applicants, we have learned that F-1 and H-1B visa holders, most from India and China, are being refused admission at the U.S. port of entry if they previously held work authorization by association with suspicious companies, such as Integra Technologies, AZTech Technologies, and Tellon Trading, Inc. Expedited removal orders and lifetime inadmissibility charges of fraud or misrepresentation are being made by CBP for this reason.

Data from ICE shows that Integra Technologies, AZTech Technologies, and Tellon Trading were 2nd, 6th, and 10th respectively, on the list of Top 200 Employers for OPT and STEM OPT Students, which includes well-known companies like Amazon, Intel, Google, Microsoft, Deloitte, Facebook and Apple. (NOTE: At least two other companies, Wireclass and Aandwill LLC, have been linked with Integra and AzTech.)

Fraud or Willful Misrepresentation of Material Fact to Obtain U.S. Immigration Benefits is a Permanent Inadmissibility Ground

Federal agencies including ICE and USCIS have made it a priority to deter and detect immigration fraud and have increased site visits, interviews, and investigations of petitioners who use the F-1 OPT and H-1B visa programs. One reason is to protect the “many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged,” according to the agencies.

Submitting a bogus job offer letter, employment verification letter, payroll records or other documents to maintain or obtain F-1 or H-1B status creates the risk of a visa revocation or visa refusal. It may also lead to the denial of admission and an expedited removal order at the U.S. port of entry.

Whether the F-1 or H-1B visa holder knowingly pays a company for false employment verification is sometimes unclear. The pattern involves the company initiating contact with the beneficiary and requesting payment of a “training fee” at the outset. The job offer or training program might seem real in the beginning. But at some point, it becomes obvious there is no real job.

Persons who claim to have a legitimate job offer to gain an F-1 extension or H-1B status — when there is actually no job — are subject to being found permanently inadmissible. When you present false employment verification records to show you performed job duties and got paid for such duties (in order to receive a visa or lawful status in the United States) you risk being charged with a lifetime inadmissibility ban under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material facts to gain U.S. immigration benefits).

In unique situations, the person may challenge a section 212(a)(6)(C)(i) bar by filing a formal motion to reconsider with the appropriate agency, such as CBP or the U.S. Consulate. In most cases, the person will need a 212(d)(3) nonimmigrant waiver or Form I-601/INA 212(i) immigrant waiver.

The 212(d)(3) waiver has relatively flexible eligibility standards, which includes addressing the risk of harm to society if the person is admitted to the United States, the magnitude of the U.S. immigration violation that caused the inadmissibility, and the importance of seeking the visa. The Form I-601 waiver has stricter requirements because the person must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if the person is not admitted to the United States.

If you are caught up in or benefited from an F-1 or H-1B visa fraud scheme, consult a qualified U.S. immigration attorney to discuss possible remedies. Ongoing and willful participation in the scheme might seem like a victimless offense, but it carries serious and permanent U.S. immigration consequences.

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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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