Tag Archives: I-601 waiver

USCIS Rescinds INA 204(c) Charge + U.S. Consulate Vacates INA 212(a)(6)(C)(i) Finding in K-1 Fiancé Visa Case= A True Success Story

Posted on December 13, 2025 | Comments Off on USCIS Rescinds INA 204(c) Charge + U.S. Consulate Vacates INA 212(a)(6)(C)(i) Finding in K-1 Fiancé Visa Case= A True Success Story

USCIS approved the Form I-129F K-1 fiancé petition of our U.S. citizen client, after issuing a Notice of Intent to Deny it under INA 204(c). In the NOID, USCIS claimed her foreign national fiancé entered a prior sham marriage to a Form I-485 green card applicant solely to gain permanent residence as a derivative beneficiary.

As counsel, we filed a Response to the NOID, with documentary evidence and legal argument demonstrating the prior marriage was real but ended because the parties grew apart. Eight months later, USCIS issued a Form I-797, Approval Notice for the I-129F petition, which cleared the way for the beneficiary to apply for the K-1 visa.

When the K-1 applicant appeared for his visa interview, however, the U.S. Consulate issued a refusal notice under INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits). It had concerns over the prior marriage, even though USCIS had already resolved this issue in the applicant’s favor.

As counsel, we submitted a Motion to Reconsider and Rescind the section 212(a)(6)(C)(i) Inadmissibility Finding, with documentary evidence and legal argument showing the K-1 visa applicant had never used fraud or willful misrepresentation of material facts in any applications to receive U.S. immigration benefits. We further pointed out the (6)(C)(i) finding conflicted with USCIS’ approval of the Form I-129F petition, after it dropped the 204(c) charge.

One week later, the U.S. Consulate issued an email granting the Motion and provided further instructions for the applicant to collect his K-1 visa.

USCIS Charges Beneficiary with INA 204(c)/Marriage Fraud Bar in Form I-129F Petition

Section 204(c) of the Immigration & Nationality Act prohibits USCIS from approving a visa petition (e.g. Form I-129F or I-130) if the beneficiary attempted or conspired to enter a marriage for the purpose of evading U.S. immigration laws. If there is substantial and probative evidence of such an attempt or conspiracy in the beneficiary’s file – regardless of whether the benefit was received – USCIS will deny the petition under 204(c).

In its Notice of Intent to Deny our client’s Form I-129F petition, USCIS claimed it was apparent the beneficiary entered a prior sham marriage to a Form I-485 green card applicant for the sole purpose of circumventing immigration laws. USCIS determined that, as such, it was prohibited from approving the petition under 204(c).

The NOID marked the first opportunity to respond to the allegations of a prior sham marriage. In its earlier Request for Evidence (RFE), USCIS had asked only for proof of a real relationship and engagement between the couple. There was no mention of the 204(c) bar. The petitioner responded to the RFE on her own and then USCIS took several months to issue the NOID on section 204(c) grounds.

USCIS Vacates INA 204(c) Charge and Approves Form I-129F Petition Based on NOID Response

The petitioner and beneficiary next contacted Dyan Williams Law for representation in addressing the NOID. Within 30 days, we filed a timely and persuasive Response to the NOID, which contained credible testimonies, objective evidence and legal argument establishing the beneficiary and his prior spouse entered a valid, good-faith marriage, before it ended due to unresolved differences.

After receiving the Response, USCIS agreed there was no substantial and probative evidence to sustain the 204(c) finding and approved the Form I-29F petition. The parties then consulted with Dyan Williams Law to complete the K-1 visa application at the U.S. Consulate.

U.S. Consulate Issues K-1 Visa Refusal Notice under INA 212(a)(6)(C)(i)

To find that a visa applicant is inadmissible or ineligible for a visa under INA 212(a)(6)(C)(i), the consular officer must find all of the following elements are met:

  • The applicant made a false representation;
  • The false representation was willfully made;
  • The fact misrepresented is material;
  • The false representation was made to a U.S. government official, such as a consular officer; and
  • The applicant, by using fraud or misrepresentation, seeks to procure, sought to procure, procured, a benefit under U.S. immigration laws, such as a visa or admission into the United States.

When the beneficiary appeared for his interview at the U.S. Consulate, we expected his K-1 visa to be granted because USCIS had approved the Form I-129F petition and thus found there was no substantial and probative evidence of a prior sham marriage. He was stunned when, at the end of the interview, the U.S. Consulate issued a K-1 visa refusal notice citing to “6C1.” At the visa interview, the U.S. consular officer merely stated it was based on the prior marriage.

U.S. Consulate Rescinds INA 212(a)(6)(C)(i) Inadmissibility Finding and Grants K-1 Fiancé Visa Based on Motion to Reconsider

The petitioner and beneficiary next contacted Dyan Williams Law for representation in overcoming the (6)(C)(i) inadmissibility finding. We discussed the option of filing a Form I-601 waiver of inadmissibility with USCIS, which would involve a long processing time and the high evidentiary burden of proving the petitioner would face “extreme hardship” if the beneficiary was denied admission to the United States. Ultimately, with recommendation from counsel, they decided to instead pursue a Motion to Reconsider with the U.S. Consulate.

With a more flexible filing timeframe, we took several months to gather the necessary documentary evidence and written testimonies, including a declaration from the prior spouse confirming her marriage to the beneficiary was bona fide. Within a year of the visa refusal notice, we submitted the Motion to Reconsider and Rescind Inadmissibility Finding to the U.S. Consulate. In counsel’s legal memorandum, we explained the facts and laws to support the lifting of the (6)(C)(i) bar.

The Form I-129F approval did not necessarily mean the elements of fraud or willful misrepresentation were not met, but only that USCIS did not have substantial and probative of a prior sham marriage. Thankfully, it did not take long for the U.S. Consulate to make a positive decision.

Ten days later, the U.S. Consulate sent an email notice stating it removed the (6)(C)(i) bar and provided further instructions for the K-1 visa process. The applicant completed the next steps and, three months later, received the visa for lawful admission to the U.S. in K-1 status.

USCIS Approves Form I-485 Application for Permanent Residence

Within 90 days of the K-1 visa holder’s arrival in the United States, he and his U.S. citizen fiancée married and began their life together. They then contacted Dyan Williams Law to represent them in the Form I-485 green card application process.

Less than three months after USCIS received the Form I-485 application, they appeared for their scheduled Adjustment of Status interview before USCIS. The application was readily approved on the spot, with no doubts from USCIS regarding the beneficiary’s prior marriage or his existing marriage to the petitioner. The USCIS officer said they had great documentary evidence for an approval and did not ask about the NOID, the (6)(C)(i) visa refusal notice, or their relationship.

USCIS granted a two-year conditional green card because the marriage was less than two years old at the time it approved the Form I-485 application. The beneficiary will need to file a Form I-751 petition to remove the condition on his residence and to keep his U.S. immigration status. He may also file for naturalization (U.S. citizenship) when he meets the continuous residence requirement and other eligibility criteria.

It took 6 years for the beneficiary to receive his permanent residence from the time the U.S. citizen filed the Form I-129F petition with USCIS. This long and complicated U.S. immigration journey is a true success story for the clients and Dyan Williams Law.

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The Legal Immigrant provides general information only from Dyan Williams Law. 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 adjustment of status, bona fide marriage, green card, I-751, INA 212(a)(6)(C)(i), K-1 visa, marriage fraud, success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

Posted on June 26, 2024 | Comments Off on Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

On June 18, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.

Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.

If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.

The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.

Who Will Benefit from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?

Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.

If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.

Even spouses or children of U.S. citizens are not eligible for INA 245(a) adjustment if they have not been inspected and admitted or inspected and paroled into the United States, which is a key requirement.

An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.

Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.

What are the Advantages of the Parole in Place Plan?

1. Eligible parolees may apply for employment authorization and receive temporary protection from removal

In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.

2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)

Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.

A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.

To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.

If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.

Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.

What are the Limitations of the Parole in Place Plan?

1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status

Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.

Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.

2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.

Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.

There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.

In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).

For more information on the I-485 adjustment of status application process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment of Status: Inspection and Admission OR Inspection and Parole

How Will the Parole in Place Program Take Effect?

The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.

Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.

A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.

To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.

Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.

Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.

Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.

To watch YouTube video, click HERE.

To listen to podcast, click HERE.

To read the transcript, click HERE. 

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The Legal Immigrant provides general information only from Dyan Williams Law. 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 adjustment of status, green card, green card, immigrant petition, immigrant visa, The Legal Immigrant - Immigration Blog, Videos, waiver

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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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Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

Posted on February 10, 2021 | Comments Off on Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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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. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, green card, immigrant visa, immigration reform, The Legal Immigrant - Immigration Blog, waiver

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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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