Tag Archives: I-601 waiver

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

Posted on January 10, 2020 | Comments Off on U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

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

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

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

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

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

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

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

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

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

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

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

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

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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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Potential Solutions for Visa Refusal or Visa Denial

Posted on February 28, 2017 | Comments Off on Potential Solutions for Visa Refusal or Visa Denial

Some visa refusals and visa denials are proper, such as when you fail to provide the requested documents to prove visa eligibility or when you are inadmissible to the U.S. due to past actions. But when the decision is improper or can be overcome, you may take remedial action if you still want to come to the U.S.

A consular officer’s decision to deny or issue a visa is not subject to judicial review, based on the doctrine of consular non-reviewability. Because consular officers have so much discretion in issuing visa decisions, it’s especially important to address complications from the get-go.

When you’re faced with a visa refusal or denial, your potential solutions include:

1. Refiling for the Nonimmigrant Visa in Section 214(b) Situations

There is no waiver to overcome the INA 214(b) ground of ineligibility (failure to overcome presumption of immigrant intent) in nonimmigrant visa cases. But the finding is not permanent, which means you may later establish nonimmigrant intent by showing a considerable change in circumstances.

When your nonimmigrant visa (e.g. B-1/B-2 visitor visa or F-1/M-1 student visa) is denied due to failure to overcome the presumption of immigrant intent, you will need to reapply for the visa and, at the visa interview, present new, persuasive evidence of strong ties to your home country.

To avoid multiple visa refusals under section 214(b), you must build strong family roots, property ownership, employment ties, and other connections to your country that you cannot abandon and will cause you to depart the U.S. before your authorized stay expires.

In 214(b) visa refusal cases, you should not reapply for the B-1/B-2 visa, for example, until your personal, professional, and financial circumstances have changed significantly. Owning a business, investing in property, having a well-paid, steady job, or starting a family in your country are positive factors.

2. Requesting an Advisory Opinion (Administrative Review)

When your visa denial is based on questions of law, you may request an Advisory Opinion from the Department of State’s Visa Office in Washington D.C. The Visa Office will not review claims that the consular officer made a mistake of fact.

The Visa Office has a dedicated email channel, LegalNet, for you and/or your attorney to request a case-specific response on the interpretation or application of immigration law.

An example is when a person is denied an H-1B or L-1 visa, which allows dual intent, under section 214(b) (failure to overcome presumption of immigrant intent). Another example is when a visa applicant is charged with 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefit), even when there was no providing false testimony or fabricated documents or the misrepresentation was not material and did not affect visa eligibility.

Within seven (7) business days of receiving a proper inquiry, LegalNet will provide notice that the inquiry has been received and is being processed. The complexity of the case and availability of required information affects the time frame for a substantive responses.

LegalNet will provide substantive responses only to the following types of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from the consular post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The substantive response will be a summary of the advisory opinion forwarded to the consulate. Advisory opinions on applications or interpretations of law are binding on consular officers, but consular officers have sole authority to apply the law to the facts.

3. Filing a Motion to Reconsider and Rescind a Section 212(a) Inadmissibility Determination

Although there is no appeal process for a visa denial based on INA section 212(a) inadmissibility grounds, the U.S. Consulate or Embassy may reconsider its decision based on new evidence or legal arguments establishing you actually qualify for the visa.

In immigrant visa cases, the federal regulations under 22 CFR 42.81 allow  you to submit a motion to reconsider within one year of the visa denial to the consulate. No new application or filing fee is required when a timely motion is filed. Motions to reconsider must include relevant documentary evidence and legal claims to overcome the inadmissibility ground.

In nonimmigrant visa cases (except section 221(g) refusals), the only way to have your case reconsidered is to submit a new visa application and, at the visa interview, present a request to reconsider the inadmissibility finding.

It’s appropriate to file a motion to reconsider when the inadmissibility finding is based on a consular officer’s misinterpretation of the facts or law. But when the inadmissibility determination originates from the U.S. Department of Homeland Security (DHS), e.g. U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), the Consulate will generally instruct you to contact those agencies.

4. Applying for a Waiver of Inadmissibility 

When you are truly inadmissible or you are unable to get the erroneous inadmissibility charge vacated by the Consulate, you may apply for a waiver. A waiver grant is not a travel document to enter the U.S. Rather, it allows – but does not guarantee – admission on a Canadian passport (if you are a Canadian citizen) or a visa grant by the Consulate when you are inadmissible to the U.S.

Nonimmigrant waiver 

For nonimmigrant visa applicants, the 212(d)(3) waiver excuses almost all grounds of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S. The only inadmissibility grounds that cannot be excused by the 212(d)(3) waiver involve security and related issues, foreign policy considerations, and participation in Nazi persecutions.

In Matter of Hranka, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. These factors are also described in the Foreign Affairs Manual, which sets forth policies for the Department of State. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

The consular officer must recommend your nonimmigrant waiver request for approval before it is forwarded to the U.S. Customs & Border Protection for a final decision.

Immigrant waiver

For immigrant visa applicants, there are waivers for certain inadmissibility grounds, including fraud or willful misrepresentation, some criminal offenses, and unlawful presence.

You will need to determine whether a waiver is available for the specific section of law that makes you inadmissible. Even when a waiver is available, only certain immigrant visa applicants may qualify for it.

You qualify for the I-601 waiver [INA§ 212(i) waiver] of the lifetime fraud/willful misrepresentation bar under section 212(a)(6)(C)(i) if you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

or

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

You qualify for the I-601 [INA§ 212(a)(9)(B)(v)] waiver of the 3/10 year unlawful presence bar if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

You qualify for the I-601 [INA § 212(h)] waiver of crime-related inadmissibility grounds if you are one of the following:

1. An immigrant who is the spouse, parent, son or daughter of a U.S. citizen or permanent resident, or K visa petitioner, who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

The I-601 immigrant waiver under section 212(h) of the INA excuses  you from the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

The immigrant waiver is not available for all crime-related grounds of inadmissibility. In particular, persons charged with the following are not eligible for the waiver:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

Waiver for prior removal orders (or certain immigration violations)

Advance permission to reapply for admission into the United States is needed when you are inadmissible under sections 212(a)(9)(A)(i)(e.g. expedited removal order) and (ii) (removal order by an Immigration Judge), as well as sections 212(a)(9)(C)(i)(I) (illegal re-entry after accruing more than one year of unlawful presence) and (II)(illegal re-entry following removal order).

When any of these inadmissibility bars apply, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant. For more information on these inadmissibility grounds, read our article, When do you need an I-212 Waiver (and how do you get it)?

The I-212 waiver request may be filed at any time, in conjunction with a visa application, when sections 212(a)(9)(A)(i) and (ii) apply. But when sections 212(a)(9)(C)(i)(I) and (II) apply and you are an immigrant visa applicant, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212.  [Note: As an alternative, if you are a nonimmigrant visa applicant, you may seek a section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole.]

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

Consult an immigration attorney with expertise in visa refusals or denials

When your visa is refused or denied, and you still wish to come to the U.S., you need to contact an immigration attorney to evaluate your visa eligibility, verify whether the consulate has valid grounds to deny the visa, and discuss or pursue possible remedies.

For more information, read our related article, Common Reasons 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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Posted in immigrant petition, immigrant visa, immigration consequences of criminal convictions, immigration fraud, nonimmigrant visa, The Legal Immigrant - Immigration Blog, waiver

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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: How Do You Avoid, Challenge or Overcome It?

Posted on November 7, 2016 | Comments Off on Expedited Removal: How Do You Avoid, Challenge or Overcome It?

At U.S. ports of entries (e.g airports, seaports and land border crossings), the U.S. Customs & Border Protection (CBP) has broad discretionary power to issue you an expedited removal order (Form I-860) when it denies your admission on certain grounds.

Avoiding, challenging or overcoming an expedited removal order is necessary if you want to return to the U.S. as a nonimmigrant or immigrant within 5 years in all cases, and within your lifetime, in some cases.

Consequences of an Expedited Removal Order

CBP officers are instructed to exercise restraint and consider, on a case-by-case basis, whether you qualify for any waivers, withdrawal of application for admission, or deferred inspection, instead of issue an expedited removal order.

Nevertheless, expedited removal orders are commonly issued at U.S. ports of entries when the CBP finds you inadmissible under INA section 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefits), section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper visa or other travel documents).

An expedited removal order, in and of itself, carries a 5-year bar 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.

How to Avoid an Expedited Removal Order 

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.

After traveling on a long flight, waiting for hours to be interviewed in secondary inspection, or enduring intense interrogation with the same questions asked repeatedly, you could be tempted to do whatever it takes to just get out and go home. You might think the simplest thing to do is admit to the officer’s allegations, accept the expedited removal order, and perhaps challenge it later after you are sent back to your country or last destination.

But your best strategy is to avoid an expedited removal order to the fullest extent possible. Stay calm and respectful, but don’t make harmful, untrue admissions to leading questions just to please the officer.

Be prepared to present supporting documents, such as a return airline ticket, bank account statement, and property ownership if you seek entry as a visitor.

If you provided false documents or presented false testimony to the CBP to gain entry into the U.S., you may timely recant the misrepresentation during the interrogation – at the first opportunity – to avoid a section 212(a)(6)(C) finding.

Silence, non-cooperation or refusal to answer the CBP officer’s questions will not get you admitted to the U.S. But you also do not want to babble, lie, or volunteer negative information that makes you inadmissible to the U.S.

You may ask to withdraw your application for admission, especially if there is no obvious fraud, you have favorable factors, and the CBP officer gives you this option. A withdrawal allows you to return to your country to obtain the proper entry document, without having an expedited removal order in your record and a 5-year bar.

Be mindful about what you bring on your trip. The CBP has authority to search you, your luggage, and your electronic devices (e.g. cell phone, laptop and tablet). For example, job applications in your bag and text messages or emails on your phone related to seeking employment in the U.S. will raise red flags concerning the true purpose of your trip if you seek entry as a visitor. Birth certificates, identity documents and other immigration-related paperwork that are not necessary for temporary travel may cause the CBP to doubt whether you will timely depart the U.S.

At the very least, you should work to develop a strong factual record to later challenge or overcome the expedited removal order, if one is issued. You will be handed a Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

Do not sign your sworn statement or initial the pages unless you have full opportunity to read it or have it read to you. Ask for an interpreter if necessary. Ask for corrections to be made. By signing the Form I-867A & B and Form I-831 (Continuation Page), you affirm that you have read your statement, your answers are true and correct, and the statement is a complete, true and correct record of your interrogation.

How to Challenge or Overcome an Expedited Removal Order

When you are unable to avoid an expedited removal order, you have two main options to challenge or overcome it:

1. Request Permission to Reapply for Readmission and,When Necessary, a Waiver of Inadmissibility

To overcome an expedited removal order and be eligible for a visa or admission to the U.S. before the 5-year bar expires, you must file a request for Consent to Reapply or a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, and get it approved.

If the expedited removal order further states you are inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you must obtain an 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.

The lifetime ban under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) may be excused with a 212(d)(3) nonimmigrant waiver, but there is no immigrant waiver for it. There are, however, several exceptions and defenses. For example, if you reasonably believed, at the time of making such a representation, that you were a citizen because each of your natural parent is or was a citizen and you permanently resided in the U.S. prior to turning age 16.

If you receive a Form I-212 grant as well as any required waivers, you may then reenter the U.S., despite your inadmissibility, as long as you have the proper travel documents (e.g. valid passport and appropriate visa).

2. Request Reconsideration and Rescission of the Expedited Removal Order

An Immigration Judge may not review an expedited removal order. The federal appellate courts have also found an expedited removal order is not subject to judicial review, except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute.

You may submit a written request for review to the CBP Field Office that issued the expedited removal order. You must include supporting documentary evidence showing why the expedited removal order was improper. The federal regulations state that motions to reopen and motions to reconsider must be filed with the Service within 30 days of the decision. Failure to file on time may be excused in the Service’s discretion where you demonstrate the delay was reasonable and beyond your control.

The CBP has discretionary authority to vacate the expedited removal order in its entirety or withdraw certain charges in the removal order, based on your documentary evidence and legal argument.  These type of motions are very rarely filed because it is very difficult to get CBP to lift an already issued removal order. In rare cases – when such a motion is granted – it spares the applicant from needing a waiver of inadmissibility.

DHS Traveler Redress Inquiry Program (DHS TRIP) Is Not a Good Option to Overcome an Expedited Removal Order

You may use the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to submit inquiries or seek resolution regarding difficulties you experience during your  travel screening at airports or border crossings.

You  file a complaint or apply for redress through the DHS TRIP program, which routes your request to the appropriate office for review and adjudication. You will be assigned a record identifier or Redress Control Number.

The DHS TRIP program is for limited purposes, and challenging an expedited removal order is not one of them. Normally, the most you will get is a response stating you need to file a Form I-212 or Consent to Reapply request to be readmitted to the U.S. before the 5-year bar expires.

Consult an Experienced Immigration Attorney Soon After You are Issued an Expedited Removal Order

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 request for Consent to Reapply or Form I-212 application at any time, in connection with your 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: When Does It Apply and What Are the Consequences?

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

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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Photo by: Dan4th Nicholas

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3/10 Year Unlawful Presence Bar

Posted on June 27, 2016 | Comments Off on 3/10 Year Unlawful Presence Bar

In this video, attorney Dyan Williams discusses the 3/10 year unlawful presence bar, including when you accrue unlawful presence and when you do not.

[UPDATE: As of August 9, 2018, the U.S. government calculates unlawful presence of F-1 students as starting on the day after they fall out of status, and does not require notice of a status violation from an immigration judge or USCIS.]

 For more information, read these articles:

Contact Dyan for specific advice and guidance on filing for the Immigrant I-601 or I-601A waiver for unlawful presence.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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