Tag Archives: INA 212(a)(6)(C)(i)

B-1 Visitor Visa: Traveling to the U.S. for Business

Is the B-1/B-2 the right visa to enter the U.S. to participate in a business meeting? Attend a conference or convention? Negotiate a contract?

Yes on the B-1, but no on a B-2 only.

If you have a combination B-1/B-2 visa, you should inform the U.S customs officer of the main purpose of your visit. Get admitted in the right classification. The B-1 is more flexible than the B-2 classification. You may engage in business activities and tourism with a B-1. But the B-2 is for tourism and social visits only, with very limited exceptions in special circumstances.

The B-1 visa or combined B-1/B-2 visa is for nonimmigrants who seek to enter the U.S. temporarily for business reasons and tourism. To get the visa or gain entry to the U.S. on this visa, you need to show you will participate in only permitted activities.

Episode 10 of The Legal Immigrant podcast summarizes:

(A) What you can do in the U.S. as a B-1 visitor – 

1) Business activities of a commercial nature. Examples:

  • engage in commercial translations
  • negotiate a contract
  • participate in business meetings
  • litigate, including to participate in a lawsuit, take a claim to court, or settle an estate
  • attend a conference
  • do independent research

2) Professional activities that do not lead to compensation or employment in the United States. Examples:

  • ministers of religion and missionaries doing missionary work
  • volunteers participating in a recognized voluntary service program
  • professional athletes competing in a tournament or sporting event of international dimension
  • investors seeking investments in U.S. 

3) Limited activities that do not amount to substantive performance of work. Examples:

  • commercial or industrial workers needed to install, service or repair equipment as required by contract of sale
  • certain foreign airline employees in an executive, supervisory or highly technical role who travel to the U.S. to join an aircraft for onward international flight
  • third/fourth-year medical students pursuing medical clerkship at U.S. medical school’s hospital (without remuneration) as part of a foreign medical school degree

(B) U.S. immigration problems that might arise if you do remote work (including work for a foreign employer) while you are in the U.S. as a visitor 

  • the connection between U.S. tax law and U.S. immigration law
  • the risk of being found to have violated status if you perform activities that are not entirely consistent with the terms and conditions of the visa

(C) The eligibility requirements for the visitor visa

  • maintain a residence abroad that you do not intend to abandon
  • intend to stay in the U.S. for a specific, limited period
  • seek entry solely to engage in legitimate activities permitted on the visa
  • have no U.S. immigration violations or criminal offenses that make you inadmissible  or otherwise qualify for a waiver of inadmissibility

While the B-1 visa and status allow a wider range of visitor activities in the U.S. — compared to the B-2 visa — it has its limits.

A visitor visa holder is not guaranteed admission to the U.S. for temporary stays. At the U.S. port of entry, the U.S. Customs & Border Protection may issue an expedited removal order if it determines the person intends to engage in activities outside the purpose of the visitor visa, or has previously violated status during earlier visits.

The expedited removal order itself creates a 5-year bar to re-entry under INA 212(a)(9)(A). If the CBP also charges the person with fraud or willful misrepresentation of material fact to obtain a visa or other U.S. immigration benefit, this leads to a permanent bar under INA 212(a)(6)(C)(i).

To request a consultation on visitor visa problems, you may submit an inquiry by email at info@dyanwilliamslaw.com or by online message at www.dyanwilliamslaw.com

For more information, see:

Dyan Williams, Esq.
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Removal of INA 212(a)(6)(C)(i) Bar + H-4 Visa Grant = A True Success Story

A U.S. Consulate granted the H-4 spouse visa to our client, after agreeing to remove the INA 212(a)(6)(C)(i) charge against her. This permanent bar was made 10 years earlier, when she applied for an Immigrant Visa sponsored by her prior U.S. citizen spouse.

A 212(d)(3) nonimmigrant waiver is the more common fix, but does not get rid of the bar. In this case, I advised the applicant to file a motion to reconsider and rescind the inadmissibility charge, instead of ask for a 212(d)(3) waiver with the visa. The facts and law did not support the Consulate’s finding that she used fraud or willfully misrepresented material facts to obtain a U.S. immigration benefit.

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

In the CR1 Immigrant Visa refusal, the U.S. Consulate found that my client had willfully misrepresented a material fact in her prior request for a K-3 nonimmigrant visa. The K-3 allows the spouse of a U.S. citizen to enter the U.S. with temporary status and then apply for a green card through Form I-485 adjustment.

According to the Consulate, she had falsely claimed to be married to the U.S. citizen petitioner when she really was not. It reasoned that her Hindu marriage — at the time she applied for the K-3 visa — was not legally valid because their marital ceremony did not include the statutorily recognized rituals, Saptapadi and/or Agni Pheras.

The couple chose to leave out these rituals for personal reasons. They received a marriage certificate from the government authorities based on the ceremony that was performed. They did not expect the U.S. Consulate to question the validity of the marriage due to the missing ceremonial rituals.

At the K-3 visa interview, the consular officer instructed the applicant to complete a new marital ceremony with all the necessary Hindu marriage rituals. It issued a visa refusal notice stating the petition was invalid and would be returned to USCIS for revocation.

After following the Consulate’s instructions, the U.S. citizen filed a second I-130 petition to restart the process. The beneficiary later applied for the Immigrant Visa with the understanding that the new marriage met the Consulate’s requirements.

Instead of granting the CR1 visa, the U.S. Consulate denied it under INA 212(a)(6)(C)(i). The Consulate found the applicant had lied about her marital status in the K-3 visa request because she did not have a legal marriage to the petitioner at the time. She next filed a Form I-601, Application for Waiver of Inadmissibility with USCIS, as instructed by the Consulate.

A year later, the I-601 waiver request was denied. USCIS found there was insufficient evidence of extreme hardship to the U.S. citizen petitioner if the applicant did not immigrate to the United States. The separation led the marriage to fall apart and end in divorce.

Several years later, the applicant entered into a legal, bona fide marriage to an H-1B visa holder. The couple then contacted me for help in getting the H-4 visa at the U.S. Consulate.

I confirmed that section 212(a)(6)(C)(i) is a lifetime inadmissibility bar. The H-4 visa could be granted only if the U.S. Consulate agreed to remove the bar or the U.S. Customs & Border Protection (CBP), Admissibility Review Office (ARO) issued a 212(d)(3) waiver with the Consulate’s recommendation.

Solution: Motion to Reconsider and Rescind Inadmissibility Bar in H-4 Visa Request

With my guidance, the couple decided to ask the U.S. Consulate to remove the section 212(a)(6)(C)(i) charge and grant the H-4 visa, without requiring the 212(d)(3) waiver.

To support the Motion to Reconsider, I counseled the H-1B spouse and the H-4 applicant on the written testimonies and documentary evidence to present to the U.S. Consulate. I also prepared a legal memorandum explaining why the section 212(a)(6)(C)(i) bar did not apply to this case.

At the visa interview, the applicant was questioned about the prior marriage that led to the inadmissibility bar. To show the consular officer that the bar was made in error, she presented the Motion to Reconsider, including my legal memorandum and her affidavit. The Consulate accepted her documents and placed the case in 221(g) administrative processing.

After receiving my follow-up inquiry, the Consulate scheduled the applicant for a second interview. This was three months after her first interview. She answered more questions on her marriage to the H-1B visa holder. She also submitted more evidence related to the marriage in response to a second 221(g) notice.

Six months after the first interview, the Consulate issued a notice stating the applicant was eligible for a waiver of inadmissibility. I then followed up with the Consulate requesting again they review the Motion to Reconsider and lift the section 212(a)(6)(C)(i) bar.

After several more months of administrative processing and follow-up inquiries, the Consulate issued a notice stating a new waiver was in process because the prior waiver had expired.

At that point, I filed a request with the The Office of the Legal Adviser for Consular Affairs (LegalNet), U.S. Department of State, asking it to counsel the U.S. Consulate to reconsider the inadmissibility charge, instead of require a 212(d)(3) waiver. LegalNet contacted the Consulate and began to investigate my inquiry.

Outcome: Removal of Misrepresentation Bar and H-4 Visa Grant

A year after the applicant had attended her first H-4 visa interview, the U.S. Consulate agreed to remove the section 212(a)(6)(C)(i) bar. LegalNet sent me an email stating the Consulate would contact the applicant with further instructions on her H-4 visa request.

Despite the long wait, my client was happy to have the bar lifted and to receive her H-4 visa without needing a 212(d)(3) waiver. The visa was marked with a “clearance received” annotation. Because her spouse was already in the United States in H-1B status, she was excepted from Presidential Proclamation 10052, which placed COVID-19 travel restrictions on nonimmigrant visa applicants.

With the removal of the 212(a)(6)(C)(i) charge, my client will not a need a 212(d)(3) waiver to extend her H-4 status or to get a new nonimmigrant visa. She also will not require a Form I-601/INA 212(i) waiver to immigrate to the U.S. with her husband, who may apply for permanent residence through his U.S. employer.

The H-4 applicant, her H-1B spouse and I communicated by emails and telephone calls. I had one in-person meeting with the H-1B spouse for the initial consultation. With effective collaboration, we convinced the U.S. Consulate to remove the (6)(C)(i) bar — which was made a decade ago — and grant the H-4 visa. This is a true success story.

Cheers,

Dyan Williams

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

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Intro & Outro Music by: Sebastian Brian Mehr

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Outcome: Waiver Approval + Immigrant Visa Grant

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

He and his accompanying derivative beneficiaries became permanent residents of the United States upon their admission on Immigrant Visas. He finally reunited with his parents and U.S. citizen brother after they had lived in separate countries for 20+ years. This is a true success story.

Cheers,

Dyan Williams

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

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Intro & Outro Music by: Sebastian Brian Mehr

Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

On June 26, Weiyun “Kelly” Huang, owner of the fictitious companies, Findream LLC and Sinocontech LLC, was sentenced to 37 months in federal prison for conspiracy to commit visa fraud. Her companies provided false employment verification records to foreign nationals seeking F-1 or H-1B visa status.

The U.S. Immigration & Customs Enforcement (ICE) played a key role in the investigation, which created ripple effects on persons who received F-1 or H-1B work authorization by using a job offer letter, payroll records or other employment verification documents from Findream or Sinocontech.

F-1 and H-1B Work Authorization Requires Legitimate Employment

An F-1 visa allows an international student to study in the United States at a university or other academic institution.  F students may engage in practical training during their academic program or after it ends. Curricular Practical Training (CPT) and Optional Practical Training (OPT) are the two types of training that provide work experience related to the field of study.

Eligible students may apply for up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). All periods of pre-completion OPT, however, are deducted from the available period of post-completion OPT.

The OPT employment can be part time (at least 20 hours per week on post-completion OPT) or full time; involve multiple short-term employers, contract work, self-employment, or agency work; and be paid or unpaid (as a volunteer or intern, as long as labor laws are not violated). The student must report all employment to their Designated School Official (DSO) to maintain status.

While a job offer is not required to apply for OPT, the student may not have a cumulative total of 90 days of unemployment during the 12-month OPT period. Otherwise, they fall out of status and no longer qualify for a change or extension of status.

Students may apply for an additional 24 months of OPT if they have a degree and are employed in a STEM (Science, Technology, Engineering or Mathematics) field. An additional 60 days of unemployment is allowed during the 24-month extension, which means the student may be unemployed for a total of 150 days (i.e. 90 + 60 days) during the entire OPT, 36-month period. Exceeding 60 days of unemployment during STEM OPT means the student is out of status and is ineligible for a change or extension of status.

For the 24-month STEM OPT extension, the DSO requires the student to have an existing job offer from a U.S. employer and to submit a completed Form I-983 (training plan) that is signed by the student and employer.

Section 3 to Section 6 on the Form I-983 requests information on the company, the agreed-upon practical training schedule and compensation, and the formal training plan, respectively. Unlike regular OPT employment, STEM OPT employment must be paid.

An H-1B visa allows U.S.-based employers to temporarily employ foreign nationals in specialty occupations. Foreign nationals with H-1B status may stay in the U.S. for three years, with the possibility of extending their stay for a total of six years. H-1B status may be extended beyond the six-year limit in certain situations, such as when 365 days or more have passed since the filing of an application for labor certification or immigrant petition (Form I-140) for the beneficiary.

F-1 students with a timely filed H-1B petition and change of status request, and whose F-1 employment authorization will expire before the change of status to H-1B occurs (typically October 1), may be eligible for a cap-gap extension in the United States. In many cases, the OPT employment or STEM OPT employment is what allows the F-1 student to change to H-1B status without departing for visa processing at the U.S. Consulate.

ICE Investigations of Work Permit Fraud Schemes Continue

ICE’s crackdown on F-1 and H-1B visa fraud schemes spell trouble for international students and foreign national workers who use fake job offers to obtain F-1 OPT, F-1 STEM OPT, F-1 CPT, or H-1B status.

ICE may conduct on-site visits to confirm the visa holder is actually working for the employer and performing the appropriate duties. When little-known companies like Findream and Sinocontech show a high number of F-1 OPT and STEM OPT workers, this can prompt further investigation.

In March 2019, the United States filed a criminal complaint against the owner of Findream, with an affidavit from an FBI Special Agent stating it was a company on paper only, with no actual physical presence, and was created for the purpose of providing false verifications of employment to F-1 visa holders seeking to extend their stay in the U.S. via the OPT program.

The indictment stated that Huang advertised Findream as a “startup company in technology services and consulting,” with clients in China and the U.S.  She used a China-based website, “Chinese Looking for Job,” and a China-based WeChat platform, “Job Hunters of North America,” to advertise Findream and Sinocontech to F-1 visa holders in the U.S. seeking employment and H-1B visas.

The companies did not deliver any technology or consulting services, or employ any of the individuals who responded to the ads, the indictment stated. In exchange for a fee, Huang and the companies provided job offer letters and employment verification letters as proof of employment, the charges alleged. Falsified payroll records and tax forms were also said to be provided.

According to the indictment, the fraud scheme allowed at least 2,685 customers to list Findream or Sinocontech as their employer to extend their F-1 status. Subsequently, many F-1 and H-1B visa holders, particularly from China, had their visas revoked or denied or were refused entry to the United States (following travel abroad) because they had listed Findream or Sinocontech to receive work authorization.

These types of ICE investigations are ongoing. Recent reports indicate that F-1 students, most from India, have received notifications from U.S. Consulates that their visas have been revoked because they used job offer letters from Integra Technologies LLC and AZTech Technologies LLC to obtain OPT, STEM OPT and, in some cases, CPT work permits.

Through consultations with applicants, we have learned that F-1 and H-1B visa holders, most from India and China, are being refused admission at the U.S. port of entry if they previously held work authorization by association with suspicious companies, such as Integra Technologies, AZTech Technologies, and Tellon Trading, Inc. Expedited removal orders and lifetime inadmissibility charges of fraud or misrepresentation are being made by CBP for this reason.

Data from ICE shows that Integra Technologies, AZTech Technologies, and Tellon Trading were 2nd, 6th, and 10th respectively, on the list of Top 200 Employers for OPT and STEM OPT Students, which includes well-known companies like Amazon, Intel, Google, Microsoft, Deloitte, Facebook and Apple. (NOTE: At least two other companies, Wireclass and Aandwill LLC, have been linked with Integra and AzTech.)

Fraud or Willful Misrepresentation of Material Fact to Obtain U.S. Immigration Benefits is a Permanent Inadmissibility Ground

Federal agencies including ICE and USCIS have made it a priority to deter and detect immigration fraud and have increased site visits, interviews, and investigations of petitioners who use the F-1 OPT and H-1B visa programs. One reason is to protect the “many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged,” according to the agencies.

Submitting a bogus job offer letter, employment verification letter, payroll records or other documents to maintain or obtain F-1 or H-1B status creates the risk of a visa revocation or visa refusal. It may also lead to the denial of admission and an expedited removal order at the U.S. port of entry.

Whether the F-1 or H-1B visa holder knowingly pays a company for false employment verification is sometimes unclear. The pattern involves the company initiating contact with the beneficiary and requesting payment of a “training fee” at the outset. The job offer or training program might seem real in the beginning. But at some point, it becomes obvious there is no real job.

Persons who claim to have a legitimate job offer to gain an F-1 extension or H-1B status — when there is actually no job — are subject to being found permanently inadmissible. When you present false employment verification records to show you performed job duties and got paid for such duties (in order to receive a visa or lawful status in the United States) you risk being charged with a lifetime inadmissibility ban under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material facts to gain U.S. immigration benefits).

In unique situations, the person may challenge a section 212(a)(6)(C)(i) bar by filing a formal motion to reconsider with the appropriate agency, such as CBP or the U.S. Consulate. In most cases, the person will need a 212(d)(3) nonimmigrant waiver or Form I-601/INA 212(i) immigrant waiver.

The 212(d)(3) waiver has relatively flexible eligibility standards, which includes addressing the risk of harm to society if the person is admitted to the United States, the magnitude of the U.S. immigration violation that caused the inadmissibility, and the importance of seeking the visa. The Form I-601 waiver has stricter requirements because the person must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if the person is not admitted to the United States.

If you are caught up in or benefited from an F-1 or H-1B visa fraud scheme, consult a qualified U.S. immigration attorney to discuss possible remedies. Ongoing and willful participation in the scheme might seem like a victimless offense, but it carries serious and permanent U.S. immigration consequences.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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U.S. Consulate Rescinds INA 212(a)(6)(C)(i) Charge and Grants B1/B2 Visa: A True Success Story

Within 3 months of receiving our Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for B1/B2 Visitor Visa, the U.S. Consulate granted the visa to our client without requiring a 212(d)(3) waiver of inadmissibility. After he had been denied the visitor visa on three separate occasions over a 12-year period, the applicant sought our counsel to overcome the 212(a)(6)(C)(i) bar and get the visa.

Problem: INA 212(a)(6)(C)(i) Charge and INA 214(b) Issue

The applicant’s visa problems began after he was denied re-entry by U.S. Customs as a visitor. At the time, he had been attending high school in the United States on a B1/B2 visitor visa. Unique circumstances led him to believe he did not need a student visa as long as he did not overstay his authorized visits.

In his last request for entry, he was specifically asked about the purpose of his visit. He admitted he had been attending high school in the United States and was seeking to complete his studies. The U.S. Customs informed him he needed a student visa and could not attend school during a B1/B2 visit. Although he was allowed to withdraw his application for admission, his visa was cancelled.

Three years later, the applicant sought a visitor visa for temporary recreational stays in the United States. The U.S. Embassy denied his first two requests under INA 214(b), i.e. failure to overcome the presumption of immigrant intent to be eligible for a visitor visa.

Ten years later, the applicant sought the visitor visa again. After placing the case in administrative processing, the U.S. Embassy issued a visa refusal notice under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit).

The factual basis for the section 212(a)(6)(C)(i) charge was not specified. But it was reasonable to assume it stemmed from his attending high school in the U.S. while in B1/B2 visitor status.

When a person engages in conduct that is inconsistent with the terms and conditions of his visa (especially within 90 days of his admission), the U.S. consular officer may presume he willfully misrepresented the true purpose of the visit. The applicant then has to rebut the presumption of misrepresentation.

In this case, the applicant violated the terms of his visitor visa by attending school. But, at the time, he was a minor (under age 18) and relied heavily on his parents to make decisions on his behalf.

The family had been in the United States on another type of visa that allowed school attendance and a longer stay. Based on discussions with the school district, the parents mistakenly assumed their son could continue his studies on a visitor visa, as long as he departed the United States every six months, before the expiration date of each authorized visit.

Solution: Motion to Reconsider Inadmissibility Charge and Proof of Strong Ties to Residence Abroad

To deal with the INA 212(a)(6)(C)(i) finding, the applicant contacted me for a Skype consultation. I confirmed his ultimate objective was to receive a B1/B2 visa for business trips and recreational visits, including spending time with his U.S. citizen brother.

Prior to entering a representation agreement, we discussed whether to (a) request the U.S. Embassy vacate the INA 212(a)(6)(C)(i) finding or (b) apply for a 212(d)(3) waiver of inadmissibility. Given his young age at the time he attended school on the B1/B2 visa and the Record of Sworn Statement reflecting he declared this fact to U.S. Customs in his last request for entry, both options were viable. Ultimately, he chose option (a).

I advised the client on the information and documents to present to show he did not commit fraud or willfully misrepresent the purpose of his visit each time he was admitted to the United States on the B1/B2 visa, and then attended school. Furthermore, I counseled him on how to demonstrate strong ties to his residence abroad to overcome the presumption of immigrant intent under INA 214(b), which is necessary to qualify for the visitor visa itself.

In addition, I wrote a legal memorandum explaining the factual grounds and legal basis for the Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for B1/B2 Visitor Visa. I also prepared the client for what to expect at the visa interview and how to best present his case.

At the B1/B2 visa interview, the U.S. Consulate accepted the legal memorandum and the written testimonies of the applicant and his U.S. citizen brother in support of the Motion to Reconsider. The U.S. consular officer noted the case was complicated and had to be placed in administrative processing.

Outcome: Removal of Section 212(a)(6)(C)(i) Charge and B1/B2 Visitor Visa Grant

Three months later, the U.S. Consulate issued the B1/B2 visitor visa and made it valid for 10 years. The section 212(a)(6)(C)(i) bar was lifted, so there was no need for a 212(d)(3) waiver. A “clearance received” annotation was placed on the visa to further indicate his case was resolved.

After three prior failed attempts in which he did not have counsel, the applicant finally received the B1/B2 visa with our representation.

This is a true success story.

Cheers,

Dyan Williams

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

###

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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