Within 50 days of attending his visa interview at the U.S. Embassy, my client was cleared of the INA 212(a)(6)(C)(i) inadmissibility charge and received his H-1B visa to resume his employment in the United States. The Embassy had previously found that he willfully misrepresented material fact when he failed to disclose he had been arrested and charged with Domestic Violence on his prior Form DS-160, nonimmigrant visa application, and during the visa interview.
This lifetime inadmissibility bar prevented him from obtaining the visa without first receiving a 212(d)(3) nonimmigrant waiver from the U.S. Customs & Border Protection, Admissibility Review Office. This waiver normally takes at least four to six months to process, assuming the Embassy makes a favorable recommendation and forwards the request to the CBP-ARO for review and a decision.
At the outset, I explained to the client that he had solid grounds to challenge the inadmissibility finding. He did not disclose the arrest or charge against him because it was was based on false allegations of Domestic Violence by his now ex-wife. He denied these unsubstantiated claims and did not plead guilty to the offense. The court also dismissed the charge due to lack of evidence. There was no conviction or formal admission to committing the offense.
Because he was not inadmissible on crime-related grounds, his omission of the arrest and charge was immaterial to his visa eligibility. If he had disclosed this information on his visa application and during the interview – as he should have – he still would have qualified for the visa.
I explained to the client that while the 212(d)(3)(A) waiver request is a viable, alternative solution, it has several disadvantages. First, this path would leave the INA 212(a)(6)(C)(i) bar in his record because it only waives the inadmissibility ground, but does not get rid of it.
Second, the 212(d)(3) waiver is valid for up to 60 months (5 years), which means he would need to file for a new one, upon expiration, to continue to receive nonimmigrant visas. Furthermore, the 212(d)(3) waiver is for nonimmigrants and does not allow the issuance of a green card or immigrant visa to intended immigrants when the person is inadmissible under INA 212(a)(6)(C)(i). Rather, he would instead require a Form I-601/INA 212(i) immigrant waiver, which carries stricter eligibility requirements and higher evidentiary standards.
Moreover, the lengthy processing time for the 212(d)(3) waiver put the client at high risk of losing his position in the United States. His employer was already facing financial difficulties and project delays due to his absence.
I advised the client to apply again for the H-1B visa and counseled him on how to present his case at the new visa interview. He opted for the 212(d)(3) waiver as a backup option and presented a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i) (willful misrepresentation of material fact to gain immigration benefit) as his primary solution.
To support the Motion to Reconsider, I wrote a legal memorandum explaining how the INA 212(a)(6)(C)(i) bar was applied in error and should be vacated to allow the Embassy to issue the visa without requiring a 212(d)(3) waiver. I also helped the client finalize his written testimony in support of the motion, as well as prepared him for oral testimony at the visa interview. The Embassy accepted the legal memorandum and written testimony and listened to his oral testimony. It then placed the case in administrative processing.
Following the visa interview, the client waited approximately 30 days to receive instructions from the Embassy to submit his passport. The Embassy took another 20 days to process and issue the H-1B visa showing clearance was received. During the waiting period, I submitted several follow-up inquiries to the Embassy to request the visa issuance and to help relieve the client’s anxiety.
A few days later, my client entered the United States with his new H-1B visa. At the U.S. port of entry, the U.S. Customs & Border Protection asked no questions about the prior inadmissibility finding.
The section 212(a)(6)(C)(i) charge was removed and the client is no longer subject to this permanent bar. As such, he will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. In addition, he will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.
During the course of representation, I gathered information and answered questions from the client by email and video calls. Despite never having an in-person meeting, we effectively collaborated and communicated with each other to create a true success story.
Founder & Principal Attorney
Dyan Williams Law PLLC
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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