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When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

Posted on January 30, 2016 | Comments Off on When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

Certain criminal offenses bar you from adjusting to permanent resident status or from entering the U.S. as a permanent resident or an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome crime-related bars to reentry, prospective immigrants or permanent residents seeking admission to the U.S. must file for and receive an I-601 waiver when available under section 212(h) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status, enter the U.S. on an immigrant, K-3 or K-1 visa, or be admitted as a permanent resident.

 

When Are You Inadmissible Due to Criminal and Related Grounds [INA§ 212(a)(2)]? 

Crime-related grounds of inadmissibility are permanent bars to adjusting to permanent residence within the U.S., obtaining a visa for entry to the U.S., or being lawfully admitted to the U.S.

Crime Involving Moral Turpitude

Section 212(a)(2)(A) (i)(I) of the Immigration & Nationality Act (INA) states foreign nationals are inadmissible to the U.S. if they have been convicted of – or admit to committing – (at least) one Crime Involving Moral Turpitude (CIMT), other than a purely political offense.

Even when there is no conviction, there is a valid admission of a crime when the USCIS officer or U.S. consular officer follows formal procedures to obtain it, including placing the applicant under oath and having him admit to all the key elements of the crime.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

You are not inadmissible due to a CIMT when you qualify for:

1. the petty offense exception, where you committed only one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed ; OR

2. the youthful offender exception, where you committed only one CIMT while under age 18, and at least five years have passed since your conviction and release from jail.

Controlled Substance Violation

Section 212(a)(2)(A) (i)(II) of the INA states that foreign nationals are inadmissible if they violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21. To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation.

On a medical examination report, in connection with a green card or immigrant visa application, a person may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation. While this acknowledgement, by itself, is not a valid admission to a controlled substance violation, it opens a line of questioning to determine criminal inadmissibility.

Arrests and charges for controlled substance violations – even when there is no conviction or guilty plea –  also usually results in further questioning at the green card or immigrant visa interview.

As with obtaining a valid admission to a CIMT, a USCIS officer or U.S. consular officer may place the applicant under oath and use certain procedures to procure a formal admission to a controlled substance violation.

Multiple Criminal Convictions

Section 212(a)(2)(B) of the INA states that foreign nationals are inadmissible to if they are convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offense arose from a single scheme of misconduct, and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.

Controlled Substance Traffickers

Section 212(a)(2)(C) of the INA bars foreign nationals who the U.S. consular officer or U.S government knows or has reason to believe is a controlled substance trafficker. This includes a person who:

1. is or has been an illicit trafficker in any controlled substance listed in section 802 of Title 21, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled substance.

or

2. is the spouse, son, or daughter of a person inadmissible as an illicit trafficker, has obtained financial or other benefit from the illicit activity within the last 5 years, and knew or reasonably should have known that the financial or or other benefit resulted from such illicit activity.

Prostitution and Commercialized Vice

Section 212(a)(2)(D)(i) of the INA states that foreign nationals are inadmissible if they are coming to the U.S. solely, principally, or incidentally to engage in prostitution, or have engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.

Section 212(a)(2)(D)(ii) of the INA adds that foreign nationals are inadmissible if they directly or indirectly procure or attempt to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receive or (within such 10-year period) received the proceeds of prostitution.

Section 212(a)(2)(D)(iii) of the INA further bars foreign nationals who are coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution.

Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution

Under section 212(a)(2)(E) of the INA, a foreign national:

(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h) of the INA – i.e. any felony, any crime of violence, and any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or prohibited substances if such crime involves personal injury to another),

(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense,

is inadmissible.

Foreign Government Officials Who Committed Particularly Severe Violations of Religious Freedom

Under section 212(a)(2)(G) of the INA, a person who, while serving as a foreign government official, was responsible for or carried out particularly severe violations of religious freedom is inadmissible.

Significant Traffickers in Persons

Under section 212(a)(2)(H) of the INA, a person who commits or conspires to commit human trafficking offenses in or outside the U.S., or who the U.S. government knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe human trafficking, is inadmissible.

A spouse, son or daughter of a human trafficker, who has, within the previous 5 years, benefited from the illicit activity, or knew or should have known that he benefit was the product of such illicit activity, is also inadmissible. One exception is if the son or daughter was a child at the time he or she received the benefit.

Money Laundering

Section 212(a)(2)(I) of the INA states that a person who the U.S. government knows, or has reason to believe, has engaged, is engaging, or seeks to enter the U.S. to engage, in money laundering is inadmissible. A person who the U.S. government knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in money laundering, is also inadmissible.

When Do You Need an I-601 [INA § 212(h)] Waiver Due to Criminal and Related Grounds? 

Intended immigrants and permanent residents need an I-601 waiver under section 212(h) of the INA when they are barred from admission to the U.S. due to 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

When you are inadmissible due to crime-related grounds, you need the INA 212(h) waiver to get a green card, an immigrant visa, or a K visa to enter the U.S. or to be lawfully admitted to the U.S. as a permanent resident.

What are the Limitations of the I-601 [INA § 212(h)] Waiver?

The I-601 waiver under section 212(h) of the INA has several limitations:

It is not available for all crime-related grounds of inadmissibility. The I-601 waiver is unavailable to persons who are deemed inadmissible under sections:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to one 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]

(NOTE TO NONIMMIGRANTS: A special authorization for admission as a nonimmigrant for crime-related grounds is available under section 212(d)(3)(A) of the INA. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

It is not available to certain foreign nationals. The waiver cannot be granted, as a matter of discretion, to:

1. A foreign national who has been convicted of, or admitted committing murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

2. A foreign national who was granted permanent residence and failed to accrue at least seven years of lawful continuous residence in the U.S. before receiving a Notice to Appear in removal proceedings.

[NOTE: On May 12, 2015, the Board of Immigration Appeals issued a decision, Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015), stating that a person who adjusted to permanent resident status in the U.S. and who did not enter the country as an LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction.   Based on this BIA decision, only those who entered the U.S. as LPRs and thereafter are convicted of an aggravated felony are prohibited from applying for a 212(h)waiver.]

 

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not usually a stand-alone application. To obtain a section 212(h) waiver, the person must be applying or reapplying for adjustment of status, for a visa, or for admission to the United States. The section 212(h) waiver request is usually filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application.

One situation that allows a stand-alone request is when a permanent resident leaves the U.S. and is then charged as inadmissible, due to crime-related grounds, upon request for re-entry. Permanent residents who commit criminal offenses that make them inadmissible do not receive automatic re-entry to the U.S. Instead, they may file a stand-alone § 212(h) waiver in removal proceedings to retain their status. Stand-alone § 212(h) waivers may also be filed by immigrant visa holders, in which case, the waiver must be granted retroactively (nunc pro tunc) to make the visa valid.

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, lawful permanent residents (green card holders) who depart the U.S. and seek re-entry are generally not regarded as seeking admission and are thus not subject to INA 212 inadmissibility grounds. But when any of the six exceptions under INA § 101(a)(13)(C) applies, permanent residents are subject to being denied admission to the U.S. One is when the permanent resident has committed a criminal offense listed in section 212(a)(2) (including crimes of moral turpitude, drug trafficking, or prostitution), except if since such offense the person has been granted an INA 212(h) waiver or Cancellation of Removal for Certain Permanent Residents under INA  240A(a).

A permanent resident who is inadmissible under section 212(a)(2) is normally paroled into the U.S. as an arriving alien seeking admission and then placed in removal proceedings to respond to charges of inadmissibility under INA 212 (or charges of removability under INA 237). Parole allows a person, who may be inadmissible or otherwise ineligible for admission into the United States, to be paroled into the United States for a temporary period.

A permanent resident may request a stand-alone section 212(h) waiver — without reapplying for a visa or adjustment of status —  if he is presently requesting admission into the United States. This means he has to to be paroled into the country and referred to the Immigration Court as an arriving alien seeking admission. If the waiver (or other relief) is denied in removal proceedings, the permanent resident status is revoked and the Immigration Court may issue a removal order or a voluntary departure grant.

Who Qualifies for the I-601 [INA § 212(h)] Waiver?

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

1. An immigrant who has a U.S. citizen or permanent resident spouse, parent, son or daughter 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.

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(h) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you are eligible for the waiver, the agency may still deny the request as a matter of discretion.

If you are convicted of a violent or dangerous crime, you must demonstrate “extraordinary circumstances,” such as national security or foreign policy considerations, or that the denial of admission would result in “exceptional or extremely unusual hardship.” Even if this higher standard is met, the agency may still deny the request as a matter of discretion.

Where Do You File An I-601 [INA § 212(h)] Waiver Application? 

The §212(h) waiver request is filed on a Form I-601, either with the USCIS office that is adjudicating the adjustment of status application, the U.S. Consulate that conducted the visa interview, or the Immigration Court (if you are in removal proceedings and filing for adjustment of status OR requesting admission as a permanent resident who was paroled into the U.S.).

The filing address for the I-601 application depends on whether you are:

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS;

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Direct filing addresses for the I-601 are available on the USCIS website.

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Getting an I-601 waiver for criminal grounds involves more than just submitting the form and documents listed in the instructions. You must also show USCIS how you qualify for the waiver and deserve it as a matter of discretion. An experienced immigration attorney can help you maximize your chance for approval by presenting a legal brief and explaining how you meet the eligibility requirements.

For more information on what to submit with your application and why having an immigration attorney helps, read our related article, What should you to do get an I-601 waiver for criminal grounds? 

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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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What should you do to get an I-601 waiver for immigration fraud or misrepresentation?

Posted on January 29, 2016 | Comments Off on What should you do to get an I-601 waiver for immigration fraud or misrepresentation?

Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.

If you are inadmissible due to fraud or misrepresentation, you need an I-601 waiver, available under INA § 212(i), to get a green card or immigrant visa. There is no waiver for false claims to U.S. citizenship, but you may have defenses and exceptions to establish the bar does not apply to you.

 

What Must You  Submit When Requesting an I-601 [INA § 212(i)] Waiver?

A section 212(i) waiver applicant must submit a completed and signed Form I-601, Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, or K visa petitioner will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

(NOTE: A U.S. citizen or permanent resident son or daughter is not a qualifying relative for the purpose of proving extreme hardship in an I-601 fraud waiver request.)

Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.

Immigration fraud/misrepresentation is particularly serious. The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(i) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the fraud/willful misrepresentation bar applies, who qualifies for the I-601 [INA § 212(i)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)? 

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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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When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

Posted on January 29, 2016 | Comments Off on When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

Immigration fraud or willful misrepresentation of a material fact bars you from adjusting to permanent resident status or from entering the U.S. as an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome this bar to being lawfully admitted to the U.S., prospective immigrants must file for and receive an I-601 waiver when available under section 212(i) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status or enter the U.S. on an immigrant, K-3 or K-1 visa.

When Are You Inadmissible Due to Fraud or Misrepresentation [INA§ 212(a)(6)(C)]?

Immigration fraud or misrepresentation is a lifetime bar to adjusting to permanent residence or lawfully gaining admission to the U.S. (either as an immigrant or nonimmigrant).

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that foreign nationals, who 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 United States or other immigration benefit are inadmissible.

Section 212(a)(6)(C)(ii) of the INA further states that foreign nationals who have made false claims to U.S. citizenship for any purpose or benefit under immigration law or federal or state law is inadmissible. The one exception is if each natural parent (or each adoptive parent) of the foreign national is or was a U.S. born or naturalized citizen; the foreign national permanently resided in the U.S. prior to turning age 16; and the foreign national reasonably believed at the time of making such false claims that he or she was a citizen.

What is a Retraction and When Does It Count?

A retraction is a withdrawal of a false statement. When it is timely and voluntary, it may serve to purge a misrepresentation and remove it as a basis for INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) findings. Whether a retraction is timely depends on the circumstances of the case.

Generally, a retraction is timely if it is made at the first opportunity and before the conclusion of the proceeding during which the false statement was given.  The retraction must have been made during the initial interview with the officer. It can also be deemed timely and voluntary if it was made in response to an officer’s questions during which the officer gave the applicant a chance to explain or correct a potential misrepresentation.

When Do You Need an I-601 [INA § 212(i)] Waiver Due to Fraud or Misrepresentation?

You need an I-601 waiver under section 212(i) of the INA when you are inadmissible due to fraud or willful misrepresentation and seek an immigrant visa or green card.

You are inadmissible based on fraud if all the following elements exist:

1. You procured, or sought to procure, a benefit under U.S. immigration laws;

2. You made a false representation;

3. The false representation was willfully made;

4. The false representation was material;

5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer;

6. The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request; and

7. The U.S. government official believed and acted upon the false representation by granting the benefit.

If the immigration benefit was denied, you may still be inadmissible for having “sought to procure” it by fraud. Although the fraud element requiring the U.S. government official to believe and act upon the false representation does not apply, an intent to deceive is still a required element.

In cases of attempted fraud, it’s hard for the agency to determine your intent to deceive when the fraud was unsuccessful. You may, however, still be inadmissible for willful misrepresentation, without any finding of fraud.

You are inadmissible based on willful misrepresentation of a material fact if all the following elements exist:

1. You procured, or sought to procure, a benefit under U.S. immigration laws;

2. You made a false representation;

3. The false representation was willfully made;

4. The false representation was material; and

5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer.

If the immigration benefit was granted, you are inadmissible for having procured the benefit by willful misrepresentation. If the immigration benefit was denied, you are still inadmissible for having “sought to procure” it by willful misrepresentation. In each case, an intent to deceive is not required.

If you are inadmissible for fraud, you are also inadmissible for willful misrepresentation. One example is when a person presents a fake (or someone else’s) passport and visa to a U.S. customs officer with the intent of deceiving the officer to gain entry into the U.S. , and the officer admits him based on the false representation. The person is inadmissible for both fraud and willful misrepresentation.

On the other hand, being inadmissible for willful misrepresentation does not necessarily make you inadmissible for fraud. For example, USCIS could find you willfully misrepresented a material fact, but there was no intent to deceive the officer and the officer did not believe and act upon the false representation.

The distinction between fraud and willful misrepresentation, however, is minor. Either way, the lifetime bar under section 212(a)(6)(C)(i) applies.  Without the I-601 waiver, you cannot get a green card, an immigrant visa, or a K visa.

What are the Limitations of the I-601 [INA § 212(i)] Waiver?

The I-601 waiver under section 212(i) of the INA has several limitations:

It is limited to immigration fraud or willful misrepresentation of a material fact to obtain immigration benefits. Section 212(i) does not provide an immigrant waiver for false claims to U.S. citizenship to procure immigration benefits or other benefits under federal or state law. Therefore, if you are found inadmissible under section 212(a)(6)(C)(ii), you must show that the bar actually does not apply to you. Potential defenses to a false claim to U.S. citizenship finding include:

1. The false claim was made prior to September 30, 1996, when the law took effect.

2. The false claim was not for a “purpose or benefit” under immigration law or federal or state law.

3. The false claim was not intentionally or knowingly made, particularly if you were a minor at the time.

4. The false claim was made by someone else, without your knowledge or involvement.

5. The false claim was timely and voluntarily retracted, before the lie is exposed or is about to be exposed.

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not a stand-alone application. The section 212(i) waiver request is normally filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application. The waiver request is submitted after USCIS (in the case of an adjustment applicant) or the U.S. Consulate (in the case of an immigrant or K-visa applicant) determines you are inadmissible due to fraud or misrepresentation. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.

Who Qualifies for the I-601 [INA § 212(i)] Waiver?

To qualify for the I-601 waiver [§ 212(i) waiver] and be excused from the lifetime bar under section 212(a)(6)(C)(i), you must show 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.]

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.

If you do not qualify for the waiver, you will have to present information, documents, and legal arguments establishing the section 212(a)(6)(C) finding is improperly applied to you. You cannot become a permanent resident unless you get the inadmissibility finding rescinded or you obtain the waiver. 

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(i) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, applicants must present evidence showing the positive factors outweigh the negative factors in their case. Even if the applicant is eligible for the waiver, the agency may still deny the request as a matter of discretion.

(NOTE to NONIMMIGRANTS: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the INA. The nonimmigrant 212(d)(3) waiver is also available for fraud or willful misrepresentation. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

Where Do You File An I-601 [INA § 212(i)] Waiver Application? 

The §212(i) waiver request is filed on a Form I-601, which is submitted to a designated USCIS lockbox or service center, the USCIS Field Office that is adjudicating the I-485 adjustment of status application, or the Immigration Court (if the person is in removal proceedings).

The filing address for the I-601 application depends on whether you are:

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.

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To receive an I-601 waiver for immigration fraud or misrepresentation, you need to do more than just submit the form and documents listed in the instructions. You also have to convince USCIS that you qualify for the waiver and deserve to get it. A qualified immigration attorney can guide you on the documentary evidence to submit and prepare a legal brief to support your waiver request.

For more information on what to submit with your application and why having an attorney helps, read our related article, What should you do to get an I-601 waiver for immigration fraud or misrepresentation? 

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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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Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Posted on December 30, 2015 | Comments Off on Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

A foreign national who is living overseas and is in a relationship with a U.S. citizen has two main visa options to come to the U.S., get married, and apply for a green card: the B-2 visitor visa and the K-1 fiancé(e) visa. Each route has advantages and disadvantages.

WHAT YOU NEED TO KNOW ABOUT THE B-2 VISITOR VISA

The B-2 visitor visa is for temporary visits only. Entering the U.S. on a B-2 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the B-2 to Green Card Route

1. B-2 visa applicant or visa holder does not need a sponsor

An invitation letter or Affidavit of Support from an American sponsor is not required for a B-2 visa. Unlike K-1  fiancé(e) visa applicants, B-2 visa applicants are not required to prove a bona fide relationship with a U.S. citizen significant other.

B-2 visa applicants must instead qualify on the basis of their own residence and ties abroad.  There is no medical exam to complete or immigration-related petition for a U.S. citizen relative to file. They just need to file the online nonimmigrant visa application and pay the application fee.

Legitimate purposes of the B-2 include tourism, vacation (holiday), and visits with friends or relatives. Getting married to a U.S. citizen (or permanent resident) during your visit is not prohibited – as long as you intend to leave the country before your authorized period expires.

2. General desire (and even preconceived intent) to immigrate  – in and of itself – does not prevent B-2 visa holder from adjusting status as the spouse of a U.S. citizen

The B-2 to green card route works best when the foreign national decides to get married to the U.S. citizen only after entering the country. The couple might be undecided about the future of their relationship until they spend more time together during the visit. If the U.S. citizen surprised the B-2 visitor with a marriage proposal after he or she entered the U.S., the visitor could show the original intent was truly a temporary visit.

A general desire to remain in the U.S ., when there is an opportunity to do so legally, is not a problem. Furthermore, a fixed intent to immigrate does not bar immediate relatives (e.g. spouses) of U.S. citizens from adjusting status — unless there are other adverse factors that allow USCIS to deny adjustment as a matter of discretion.

3. Concurrently filing the I-130 and I-485 application (one-step petition/application) is the most streamlined way to get a marriage-based green card

Under normal circumstances, a B-2 visitor who is physically present in the U.S., after lawfully entering the U.S., may file a Form I-485 adjustment of status application at the same time the U.S. citizen files the Form I-130 immigrant petition with U.S. Citizenship & Immigration Services (USCIS). The B-2 to green card route is commonly used by immediate relatives of U.S. citizens.

The one-step filing of the I-485 and I-130 is a much more streamlined process than applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate overseas, based on marriage to a U.S. citizen. You may also stay with your spouse in the U.S. while your green card application is pending, instead of being separated from each other.

Drawbacks of the B-2 to Green Card Route

1.  B-2 visa applicant or visa holder must show non-immigrant intent

To get the B-2 visa or to enter the U.S. as a visitor, the foreign national must have nonimmigrant intent. You need to prove you have strong ties to your home country that you will not abandon and you will leave the U.S. before your authorized stay expires.

The B-2 visa to green card route works best if you are not yet engaged to the U.S. citizen or did not make specific plans to immigrate to the U.S. after entering the U.S.

Entering the U.S. as a visitor simply to marry a U.S. citizen (or permanent resident) does not violate U.S. immigration law, as long as you leave before your authorized stay expires. While this purpose is legitimate, it still carries risks and may lead to your being denied a visitor visa or entry into the U.S. as a visitor.

If you are applying for a visitor visa, you will be asked on the nonimmigrant visa application, and possibly at the visa interview, whether you have any immediate relatives in the U.S. This includes a fiancé(e). If the consular officer learns you have a U.S. citizen fiancé(e) or believes you will marry the fiancé(e)  during your visit, you will likely be denied a visitor visa. This is because the consular officer might suspect you have no intent of leaving the U.S., but will overstay, get married, and apply for a green card to live permanently in the U.S. with your American spouse.

At the U.S. port of entry, the customs officer may deny your entry for the same reason, even if you present a valid visitor visa. If the U.S. Customs & Border Protection (CBP) finds that you cannot show nonimmigrant intent and therefore lack the proper travel documents, it has two choices. It will either (a) allow you to withdraw your application for admission (and likely revoke your visa) OR, (b) issue an expedited removal order, which bars you from returning to the U.S. for five years, unless you obtain a Form I-212 waiver. Either way, you will be instructed to return home on the next available flight.

In certain situations, the CBP might also find that you willfully misrepresented the purpose of your visit to gain entry into the U.S. as a visitor. It may then deny your entry and issue an expedited removal order on this additional ground. If you cannot convince CBP to refrain from issuing (or to vacate) a charge of willful misrepresentation, you face a lifetime bar to getting a green card or immigrant visa. You will then need to qualify for and obtain an I-601 [INA § 212(i)] waiver of inadmissibility.

I-601 waiver applicants must show  their qualifying relative (U.S. or permanent resident spouse or parent) will suffer “extreme hardship” if they are not admitted to the U.S. as an immigrant. This waiver is challenging to get.

2. Fraud or willful misrepresentation to gain immigration benefits prohibits B-2 visa holder from getting a green card

Lying about the purpose of your visit or about whether you have an American fiancé in the U.S. could be deemed to be fraud or willful misrepresentation to gain immigration benefits.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status. When a B-2 visa holder marries a U.S. citizen or applies for permanent residence within 30 days of entry,  the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred between 30 and 60 days of entry, the DOS does not presume, but may content there was misrepresentation. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. Nonetheless, USCIS may use it as a guide.

If USCIS finds you committed fraud or willful misrepresentation to get the B-2 visa or to enter the U.S. as a visitor, this presents a permanent bar to getting a green card. You may also be placed in removal proceedings before the Immigration Court.

You may challenge the finding by showing you did not engage in immigration fraud or willfully misrepresented material facts when you applied for the visa or when you sought entry into the U.S. If you are unable to overcome the finding, you will need to apply for and receive an I-601 waiver of inadmissibility.

3. Concurrent filing of the I-130 and I-485 (one-step petition/application) involves strict eligibility requirements

The visitor visa is often misused as a way to enter the U.S., get married, and then apply for adjustment of status (green card) to avoid the longer process of applying for a K-1, K-3 or immigrant visa at the U.S. Consulate.

USCIS officers will carefully scrutinize your marriage to confirm it’s bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not to circumvent U.S. immigration laws. You need to present documentary evidence of your shared residence, commingling of financial resources and other factors showing you have a real marriage. You also have to testify consistently and credibly as to the nature of your relationship and courtship.

As the I-485 applicant, you must show you are not inadmissible due to criminal convictions, health-related reasons, immigration violations, or other factors. The USCIS officer may conduct a full review your records (including your visitor visa application) and ask you questions at the interview to verify you are admissible to the U.S. It may investigate your true intent when you applied for the visa or sought entry on the visa.

An immigrant visa must also be available to the I-485 applicant.  If your spouse is a permanent resident, he or she may file an I-130 petition for you, but you may not file for a green card right away due to the backlog in the F2A (spouse of permanent resident) category.

When you are not in the immediate relative (e.g. spouse of U.S. citizen) category, you must be in lawful nonimmigrant status when you file an I-485. You will need to extend or change status to remain lawfully in the U.S. during the wait. Or you might have to wait until your permanent resident spouse becomes a naturalized U.S. citizen. Because adjusting status as the spouse of a permanent resident carries many obstacles, you likely will have to timely depart the U.S. and apply for an immigrant visa at the U.S. Consulate when one becomes available.

WHAT YOU NEED TO KNOW ABOUT THE K-1 FIANCE(E) VISA

The K-1 fiancé(e) visa is for the specific purpose of entering the U.S. to get married to a U.S. citizen and filing for adjustment of status. Entering the U.S. on a K-1 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the K-1 to Green Card Route

1. K-1 visa applicant is not required to show nonimmigrant intent

When you apply for a K-1 visa, you are declaring immigrant intent. Getting married to a U.S. citizen and applying for permanent residence are expected. Unlike B-2 visa applicants, K-1 applicants are not required to present evidence of nonimmigrant intent or strong ties to their home country.

2. K-1 visa is the most appropriate visa for marrying a U.S. citizen in the U.S. and applying for a marriage-based green card

As a K-1 entrant, you bear no risk of being found to have committed visa fraud if you marry the U.S. citizen petitioner and apply for a green card, as you indicated you would.  Because you are required to marry the U.S. citizen within 90 days, the Department of State’s 30/60 day rule does not apply at all.

The K-1 to green card route is the most direct path to obtaining a marriage-based green card when you are engaged to a U.S. citizen.

3. Adjustment of status process for the K-1 entrant is generally simpler

A K-1 visa holder who completed the medical exam within the past year to get the visa is not required to do a medical exam for the I-485 application. You just need to submit the vaccination supplement, and not the entire medical report.

The U.S. citizen also does not have to file an I-130 immigrant petition after the marriage occurs. You simply file the I-485 application based on the approved Form I-129F petition, as long as the marriage occurred within 90 days of arrival in the U.S.

USCIS also has discretion to waive adjustment interviews for K-1 and K-2 entrants, i.e. fiancé(e) of U.S. citizen and children of fiancé(e). If the National Benefits Center (NBC) determines that the I-485 application qualifies for an interview waiver, and the Service Center agrees, the K-1 entrant may be granted a green card without an interview at the USCIS Field Office. This is never the case with the B-2 entrant, who must complete a marriage-based green card interview.

Drawbacks of the K-1 to Green Card Route

1. K-1 visa applicant must prove bona fide relationship with U.S. citizen

The K-1 visa option is available only if you are engaged to a U.S. citizen. It is not available if you are not committed to getting married (or you are already married), or if your fiancé(e) is just a permanent resident.

To get the K-1 visa, you must prove you have a real relationship with the U.S. citizen, communicate with each other often, and intend to marry within 90 days of your arrival in the U.S. Documentary evidence includes written correspondences, telephone records, and airline tickets and travel stamps showing the U.S. citizen has visited the K-1 visa applicant.

2. K-1 visa involves strict eligibility requirements

In the wake of the San Bernardino shooting on December 2, in which 14 people were killed after married couple Syed Rizwan Farook and Tashfeen Malik opened fire at a holiday party, Congress began to review the K-1 visa application process. Virginia Rep. Bob Goodlatte Goodlatte, chair of the House Judiciary Committee, opined that USCIS “sloppily approved” Farook’s K-1 visa petition for Malik.  Goodlatte noted that USCIS failed to verify whether the Pakistani national had met her U.S. citizen husband in person before applying for the K-1 visa.

The K-1 visa process requires the couple to meet in person at least once during the two years before the U.S. citizen files the Form I-129F petition for the fiancé(e). Waiver of the in-person meeting requirement is very hard to get.

For USCIS to approve the Form I-129F petition and for the U.S. Consulate to grant the visa, both the U.S. citizen petitioner and foreign national beneficiary must meet other strict eligibility requirements.

For example, a U.S. citizen who has filed two or more K-1 petitions at any time in the past or had any K-1 petition approved within the prior two years may not file a new K-1 petition unless USCIS grants a waiver of these limitations as a matter of discretion. No waiver will be given to a petitioner with a history of violent offenses except in limited circumstances.

3. K-1 to green card route involves a longer, three-step process

You cannot live with your U.S. citizen fiancé(e) in the U.S. until you get the K-1 visa to enter the U.S. The first step of filing the Form I-129F petition and getting it approved usually takes at least 4 to 6 months. The U.S. citizen has to submit a filing fee with the petition.

After USCIS approves the petition, the K-1 applicant must then submit the online nonimmigrant visa application, pay a visa application fee, complete a medical exam, and attend the visa interview.

The U.S. Consulate usually takes several months to schedule a K-1 visa interview. At the visa interview, the U.S. Consulate may require additional documents to confirm the applicant is still in a bona fide relationship with the U.S. citizen. Administrative processing and background checks by the U.S. Consulate can add several more months to the process.

After you enter the U.S. on a K-1 visa, you must marry the U.S. citizen within 90 days of your arrival. Then you must file your I-485 application and pay the filing fee to complete the green card process. If you fail to marry within 90 days, the U.S. citizen spouse will need to file a Form I-130 petition, following marriage outside the 90 days, so you may file a Form I-485 application. If you do not marry at all, you become removable from the U.S. and you cannot adjust through marriage to another U.S. citizen or through any other means.

Although USCIS may waive the adjustment of status interviews for K-1 entrants, it usually does not. Following the San Bernardino shooting, USCIS is expected to waive even fewer interviews. At the interview before USCIS, the couple must prove they have a bona fide marriage and the I-485 applicant must show he or she is admissible to the U.S.

Want to hear about this topic? Check out this video:

WHICH IS BETTER: B-2 or K-1? 

Whether to use the B-2 or K-1 to join your significant other in the U.S. depends on your situation. You need to weigh the advantages and disadvantages of each route when deciding which to take.

Consult an experienced immigration attorney to help you determine whether the B-2 or K-1 is more appropriate for you. Although both can lead to a marriage-based green card, each carries benefits and drawbacks.

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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I-212 Waiver + Diversity Immigrant Visa = A True Success Story

Posted on October 25, 2015 | Comments Off on I-212 Waiver + Diversity Immigrant Visa = A True Success Story

confetti

On October 20, 2015, Dyan Williams Law PLLC celebrated its first-year anniversary and I celebrated the end of my first year as a solo practitioner. It’s been a wonderful journey. Although the prior 10+ years I spent at other law firms were rewarding, my 1 year at Dyan Williams Law proved to be much more. I  enjoy every single day of operating my own law firm, doing phenomenal work, and serving an excellent group of clients.

Our first year came to a close with most of our immigration cases approved and none denied. Others are in the works or are pending with the immigration agencies. One true success story involved USCIS’ expedited approval of a Form I-212 waiver request for a very deserving client.

Our client – an Immigrant Visa applicant – was unable to obtain his 2015 Diversity Visa without an I-212 waiver granting him permission to re-enter the U.S. following an expedited removal order. During the month of May, the U.S. Consulate granted the diversity visas to his wife (principal DV applicant) and young child (derivative DV applicant), but instructed him to first obtain an I-212 waiver.  He was unaware that he needed the waiver until the U.S. Consulate informed him.

Two years ago, he presented his visitor’s visa at an international airport to gain entry into the U.S. Instead of admitting him, the U.S. Customs & Border Protection placed him in secondary inspection and questioned him about his prior visits. After he admitted to previously working in the U.S. without proper authorization, he was summarily removed from the U.S. and sent back immediately to his home country.  His visitor visa was revoked and he was barred from re-entering the U.S. for five years, up until 2018.

The cut-off date to receive the 2015 Diversity Visa was September 30, the end of the DV Lottery fiscal year. Because he had only four months to obtain the visa when he contacted me in May about his I-212 application, I had to prepare a strong waiver request that would be readily and expeditiously approved by USCIS. The normal processing time for I-212 applications is 6 to 12 months.

I first had to review the Notice of Expedited Removal Order to determine why exactly he needed the waiver. Fortunately, he was not charged with fraud or willful misrepresentation to gain entry into the U.S. Had this been the case, he would have needed a separate I-601 waiver, for which he was not eligible.

In particular, for I-601 purposes, he did not have a qualifying relative (U.S. citizen spouse or parent who would suffer extreme hardship if he were not admitted to the U.S.) Although his wife received her Diversity Visa, she first had to land in the U.S. and be admitted to the country to become a permanent resident. And he had to accompany her to the United States on his Diversity Visa at the same time to become a permanent resident.

I next had to learn about all the relevant details, including the unusual hardships he and his family would suffer if he were not admitted to the U.S., his work experience and professional qualifications, and the harsh conditions in his home country. I further counseled him on the documentary evidence he should provide to support his waiver request. I also researched and gathered additional reports and articles on the terrible conditions in his home country.

It took him about one month to collect and provide all the required information and documents needed for the I-212 waiver. On June 24, I filed the I-212 application with the USCIS Field Office in Boston, MA, which had jurisdiction to decide the case. That office, however, (mistakenly) transferred the application to the Nebraska Service Center (NSC), where the I-212 sat for about two months for “administrative processing.” This unnecessary transfer added to the processing time. On August 20, NSC sent the case back to the Boston Field Office for a decision.

To support the I-212 waiver application, I presented a thorough legal brief describing how the positive factors outweighed the negative factors, and why my client deserved the waiver as a matter of discretion, under the law. I also provided compelling reasons for expedited processing (i.e. adjudication of the I-212 waiver application within 3 months). I argued that an emergency situation, humanitarian reasons, and subsequently, USCIS error and/or compelling interest of USCIS, existed to satisfy the criteria for an expedited decision.

After I submitted multiple follow-up letters to USCIS (including the Boston Field Office and NSC) describing the urgency of the situation, the USCIS adjudications officer in Boston made a personal telephone call to me on September 23. He informed me that I had presented a compelling case and he would approve the I-212 (just 7 days before the September 30th deadline to receive the visa). He faxed the approval notice to the U.S. Consulate and emailed me a copy.

I then advised my client to immediately contact the U.S. Consulate for a diversity visa issuance prior to September 30. Thankfully, the U.S. Consulate granted the visa on September 25.

The timely I-212 approval and visa grant allowed him to accompany his wife and child to the United States. Their admission to the U.S. on diversity immigrant visas makes them lawful permanent residents. If USCIS had denied the I-212, the applicant would have been stuck in his war-torn country (at least for a few years, until he could obtain an immigrant visa based on a petition by his permanent resident wife).

This client and I communicated only by email. He decided to hire me after his friend in the U.S. completed a Skype consultation with me and became convinced that I was the best attorney for his case. Despite our never meeting in person, we formed a trust-based relationship and collaborative partnership that contributed to a successful and timely outcome.

So far, the expedited approval of the I-212 waiver application in this Diversity Visa case is one of my most memorable, true success stories, since I established Dyan Williams Law PLLC.  I look forward to doing more great work and helping more clients study, work and live lawfully in the United States, reunite with their American families, and become U.S. citizens.

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 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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