Tag Archives: I-601 immigrant waiver

I-601 Fraud Waiver + Immigrant Visa Grant = A True Success Story

Posted on October 26, 2020 | Comments Off on I-601 Fraud Waiver + Immigrant Visa Grant = A True Success Story

After USCIS approved the Form I-601 application we prepared on his behalf, our client received his Immigrant Visa and joined his permanent resident parents in the United States. Prior to getting the waiver, he was refused the visa under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to previously enter the U.S. on a B1/B2 visitor visa.

With our guidance, he proved to USCIS that his aging mother and father would face extreme hardships if he did not receive admission to the United States. The Form I-601 approval permitted the issuance of Immigrant Visas to the applicant and his accompanying wife and two minor children.

Problem: Permanent Bar Under INA 212(a)(6)(C)(i)

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that a person who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, admission to the U.S. or any other U.S. immigration benefit is inadmissible. This is a lifetime bar to entering the United States.

In this case, in the early 1990s, our client attended high school while he was on a visitor visa, instead of on the proper F-1 student visa. A U.S. citizen family friend — who later became his legal guardian — encouraged him to begin attending a U.S. high school during his temporary visits. A minor at the time, he would consistently depart the United States before his authorized stay expired and then re-enter to continue his studies.

Two years later, he was denied admission at a U.S. port of entry, upon presenting his valid passport and unexpired visitor visa. He was still under age 18 at that point. The U.S. customs officers thought he spoke English too well to be just a visitor. With further inquiry, they discovered he was attending school and working part-time in the United States during his temporary stays. His visa was cancelled and he went back to Mexico.

A few days later, he returned to the United States by crossing the U.S.-Mexico border on foot without inspection. He did not encounter any border patrol agents or present any false documents or information to re-enter the United States and finish high school.

Following his high school graduation, he departed the United States and established a comfortable life in his home country. He became a family man with a spouse and two children. He developed a solid career in warehouse management and logistics.

About 20 years later, he applied for an Immigrant Visa based on an approved Form I-130 petition his U.S. citizen brother filed on his behalf. At the Immigrant Visa interview, the U.S. consular officer found him inadmissible under INA 212(a)(6)(C)(i) for misrepresenting the main purpose of his visit when he requested admission to the United States in the mid-1990s on his B-2 visitor visa to continue his education.

During the visa interview, he admitted under oath to the consular officer that he had attempted to enter the United States using his visitor visa by stating he was coming to the U.S. for a visit. But he intended to return to school and a part-time job.

Although he did not affirmatively present false information to the U.S. customs officer, his own testimony at the visa interview led the U.S. Consulate to deny him the visa under INA 212(a)(6)(C)(i). He was instructed to file a Form I-601 application for waiver of inadmissibility.

Solution: Form I-601 Waiver Under INA 212(i)

Section 212(i) of the INA provides a waiver of the fraud/misrepresentation bar if the applicant is the spouse, son, or daughter of a U.S. citizen or permanent resident who will suffer extreme hardship if the applicant’s request for admission to the United States is denied.

After agreeing to represent the applicant, I counseled him on the documentary evidence and written testimonies he needed to present to USCIS. These included detailed affidavits from the applicant and his family members, medical records and psychological evaluation reports for the parents, and proof of his U.S. citizen brother’s limited income and multiple responsibilities.

To support the Form I-601 application, I submitted a legal memorandum describing the extreme hardships the permanent resident parents would suffer if the applicant did not receive the Immigrant Visa for admission to the United States. The memo also explained why his U.S. citizen brother needed his help and support to care for their aging parents. Furthermore, it was not a viable option for the parents to relocate to the applicant’s home country due to the lack of health care, high crime rate, and poor living conditions.

Even if the applicant meets all the eligibility requirements, the USCIS officer must also decide whether to grant the waiver as a matter of discretion. Because fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit is a serious violation, we emphasized the applicant was a minor, at the time, who reasonably relied on the advice of his legal guardian. In addition, his professional qualifications, family responsibilities, lack of a criminal history, and close relationship with his permanent resident parents were positive factors that outweighed the unfavorable ones.

Outcome: Waiver Approval + Immigrant Visa Grant

Consistent with average wait times, USCIS took a year to process and approve the Form I-601 waiver application. Several months later, the applicant was scheduled for a follow-up interview at the U.S. Consulate, which issued the Immigrant Visas to him and his spouse and two children.

He and his accompanying derivative beneficiaries became permanent residents of the United States upon their admission on Immigrant Visas. He finally reunited with his parents and U.S. citizen brother after they had lived in separate countries for 20+ years. 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 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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Rescission of INA 212(a)(6)(C)(i) (Misrepresentation) Finding + Grant of H-1B Visa = A True Success Story

Posted on September 28, 2018 | Comments Off on 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

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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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Common Reasons for Visa Refusal or Visa Denial

Posted on February 27, 2017 | Comments Off on 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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Expedited Removal: When Does it Apply and What Are the Consequences?

Posted on November 7, 2016 | Comments Off on Expedited Removal: When Does it Apply and What Are the Consequences?

You may face expedited removal from the U.S. if the Customs & Border Protection (CBP) finds you inadmissible and denies your entry, usually at an airport, seaport, or land border checkpoint. The Form I-860, Notice and Order of Expedited Removal, requires you leave the U.S. immediately and brings serious consequences, such as a visa cancellation with prejudice and minimum 5-year bar to reentry.

On What Grounds May Expedited Removal Be Ordered?

CBP officers must verify whether you are admissible to the U.S. before they let you into the U.S. The CBP not only checks your travel documents, but may also interview you extensively to confirm the true purpose of your trip. The CBP may also check its records to determine whether you have a criminal history, immigration violation or other grounds that make you inadmissible.

Your mere possession of a travel document that is valid on its face does not guarantee your entry into the U.S. Section 235(b)(1) of the Immigration & Nationality Act (INA) permits the CBP to issue an expedited removal order if it finds you are inadmissible under section 212(a)(6)(C) or 212(a)(7). The inadmissibility grounds for an expedited removal order are:

1. Section 212(a)(6)(C)(i) (Misrepresentation), i.e. by fraud or wilful misrepresentation of a material fact, you seek to procure (or have sought to procure or have procured) a visa, other documentation,  admission into the U.S. or other immigration benefit.

2. Section 212(a)(6)(C)(ii) (False Claim to U.S. Citizenship), i.e. you falsely represent or have falsely represented yourself to be a U.S. citizen for any purpose or benefit under immigration law or federal or state law.

3. Section 212(a)(7)(A)(i)(I), (Immigrant Without Proper Visa or Travel Document), i.e. you are an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by immigration law, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required by the regulations.

4. Section 212(a)(7)(A)(i)(II) (Immigrant With Improperly Issued Visa), i.e. you are an immigrant who, at the time of application for admission, has a visa that was not issued in compliance with immigration law.

5. Section 212(a)(7)(B)(i)(I) (Nonimmigrant Without Valid Passport), i.e. you are a nonimmigrant who, at the time of application for admission, is not in possession of a passport valid for a minimum of six months from the date of the expiration of your period of admission or period of authorized stay.

6. Section 212(a)(7)(B)(i)(II)(Nonimmigrant Without Proper Visa or Travel Document), i.e. you are a nonimmigrant, who at the time of application for admission, does not have a valid nonimmigrant visa or border crossing identification card.

Who is Subject to Expedited Removal? 

Expedited removal applies to certain groups or classes, including:

1. Arriving aliens at designated port of entry (e.g. airport, seaport, or land border crossing)

As of April 1, 1997, all “arriving aliens” who seek admission to the U.S. or transit through the U.S. at a designated port of entry may be issued an expedited removal order upon inspection, if CBP finds they are inadmissible under sections 212(a)(6)(C) and/or 212(a)(7).

Currently, expedited removal does not apply to Cuban nationals who arrive at a U.S. port of entry by aircraft.

The expedited removal process may not be used at pre-clearance or pre-inspection units. If the CBP wishes to proceed with expedited removal, it must defer action until the vessel (e.g. aircraft) has arrived in the U.S.

2. Certain other aliens who are already in the U.S. 

Under the April 1, 1997 law, expedited removal also applies to noncitizens who have not been admitted or paroled into the U.S. following inspection by an immigration officer at a designated port of entry, and who have not been physically present in the U.S. continuously for the 2-year period prior to the date of determination of inadmissibility.

3. Foreign nationals arriving by sea, but not at designated port of entry

As of November 2002, foreign nationals who arrive in the U.S. by sea, and not at a designated port of entry, or who are intercepted at sea and brought to the U.S., may be subject to expedited removal if they were not admitted or paroled into the U.S. and have not been continuously present in the U.S. for at least two years.

Currently, expedited removal does not apply to Cuban nationals, crewmen or stowaways. [UPDATE: On January 12, 2017, the Obama Administration announced the U.S. is eliminating this exemption. Expedited removal proceedings may now be initiated against Cubans.]

4. Undocumented immigrants within 100 miles of a U.S. border 

As of August 2004, expedited removal may apply to noncitizens who are encountered within 100 miles of any U.S. land or sea border and who entered the U.S. without inspection less than 14 days before the time they are encountered.

As a matter of discretion, CBP generally applies such expedited removals against third-country nationals not from Mexico or Canada, or Mexican or Canadian nationals with criminal histories or immigration violations.

What are the Consequences of an Expedited Removal Order?

By itself, an expedited removal order carries a 5-year to reentering the U.S. This means you may not obtain an immigrant visa or nonimmigrant visa, or otherwise enter the U.S. for a minimum of 5 years from the date of expedited removal.

In addition, if you are found inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you are barred from the U.S. for a lifetime.

An inadmissibility finding under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) also triggers a lifetime ban.

Avoid an Expedited Removal Order or Develop a Strong Basis to Challenge or Overcome It

You have very limited due process rights in an expedited removal proceeding before the CBP, unlike in a regular removal proceeding before the Immigration Court. You have no right to counsel during primary inspection, secondary inspection, or at any other time you request admission to the U.S.

Your best strategy is to avoid an expedited removal order whenever possible. At the very least, work to develop a strong factual record to later challenge it through a request for review with the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal,  I-601 immigrant waiver under section 212(i), when seeking reentry as an immigrant, or a nonimmigrant waiver under section 212(d)(3), when seeking reentry as a nonimmigrant.

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP. Otherwise, to be excused from the 5-year bar, you may file the Form I-212 application at any time, in connection with an immigrant visa or nonimmigrant visa application. The same goes for I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver requests to overcome a fraud or willful misrepresentation finding under section 212(a)(6)(C)(i).

If you are issued an expedited removal order, you should timely consult an experienced immigration attorney to discuss your options. You will also likely need an attorney to help you pursue a rescission of the expedited removal order or obtain the necessary waivers.

To learn more, read our other articles:

Expedited Removal: How Does the Process Work at the U.S. Port of Entry and What Are the Main Concerns? 

Expedited Removal: How Do You Avoid, Challenge or Overcome It? 

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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