Fraud/Misrepresentation - INA § 212(a)(6)(C)(i)

QUESTION:

Dear SRW Border Lawyers,

I am student attending a Canadian University located close to the U.S. border. Recently, I applied for a visitor visa to enter the U.S. so I could visit family and shop. My visa application, however, was denied because I was found inadmissible under INA § 212(a)(6)(C)(i)-fraud/material misrepresentation. The consular officer advised me that my visa was denied because of a previous misrepresentation made on an earlier visa. I explained to the officer that the misrepresentation was not wilful because I was misled by an immigration consultant. Nevertheless, I was told that I would need a nonimmigrant waiver to enter the U.S. from now on.

Can you please provide me with information on how I can remove the fraud/misrepresentation charge from my record? 

ANSWER:

Thank you for your question!

Given what you have stated, it appears from your email that the U.S. Consulate is alleging that you are inadmissible to the U.S. pursuant to INA § 212(a)(6)(C)(i) for possible fraudulent/material misrepresentation arising out of a previous visa application. Under INA § 212(a)(6)(C)(i), a foreign national who fraudulently or willfully misrepresents a material fact in an effort to obtain a visa, other documentation, or entry into the United States is inadmissible to enter the U.S.  (Additional information on fraud can be found on our website at: Fraud http://www.srwborderlawyers.com/fraud-charges/). Therefore, you would not be able to secure a B-1/B-2 (visitors) visa to the U.S. without first obtaining the necessary non-immigrant waiver. 

While a finding of fraud or willful misrepresentation is a lifetime bar, it can be overcome by applying for a 212(d)(3)(A)(i) waiver for non-immigrant purposes (i.e. such as a visitors visa).  Additional information on this waiver is available on our website at: http://www.srwborderlawyers.com/212d3-nonimmigrant-waiver/

However, based on what you stated regarding possibly being misled by an immigration consultation, we would want to speak to you further to discuss the factual circumstances of your previous visa application that the fraud charge is based on. Based on the information you provide, we may be able to discuss the possibility of challenging the INA § 212(a)(6)(C)(i) charge with the Dept. of State and ask them to revise/update their records to reflect that you are not inadmissible to the U.S. (something our firm has done in the past successfully).  Additionally, should that not be a possibility, we can discuss the waiver application process, timelines, and address any specific questions/concerns you may have. 

In order to determine the best strategy to move forward with your U.S. immigration matters, we would first need to speak with you in a consultation to learn more about your case. In order to have this discussion with you, we would need to have you set up a consultation with our office.  If you would like to set up a consultation with our office, please contact us at 716-854-7525.

Parole Approved for Canadian Citizen Mother to Attend U.S. Citizen’s Son’s High School Graduation and 18th Birthday

Earlier this week, our firm received official approval from U.S. Customs & Border Protection that our client, a Canadian citizen, had been approved for parole for a period of five weeks so that she could attend two important milestones in her U.S. citizen son’s life: his high school graduation and his 18th birthday, together with the accompanying celebrations with family and friends. 

While these activities would normally be considered permissible B-2 activities, our client could not enter the U.S. in B-2 status she is currently inadmissible to the U.S.  The previous year, our client had been issued an expedited removal order, after admitting to CBP officials that she had been residing without status in the U.S. for over twenty years and being unable to demonstrate strong ties to Canada.

Based on the recency of her expedited removal order and her individual circumstances, we advised our client to postpone filing the necessary application to seek permission to apply for admission to the U.S. after being removed (Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal) until she had spent minimally one year outside the U.S. as ‘punishment’.  Given the lengthy overstay and the recency of the expedited removal order, based on our firm’s experience, we felt that it would be premature to file the I-212 at this time. 

However, since these two important milestones were quickly approaching in her U.S. citizen’s son’s life, we were able to advocate to CBP that our client had sufficiently re-established her ties to Canada and despite her recent expedited removal order, would not violate the terms of her parole by engaging in unauthorized employment or by overstaying.  This parole was approved solely to celebrate these special events. 

If you or someone in your family would like more information about applying for parole, please do not hesitate to contact our office to schedule a consultation. 

By WILLIAM Z. REICH, ESQ.

Applicants Needing Non-Immigrant Waivers Are Experiencing Unusual Delays

Nonimmigrant visa applicants who must also submit a nonimmigrant waiver in conjunction with their visa application, must first convince the Consulate that they are deserving of a waiver. Thus, an applicant who is inadmissible to enter the U.S. will submit a package consisting of a visa application (e.g. B1/B2 visa) and a waiver application to the Consulate. If after reviewing the waiver application the Consulate agrees to make a favorable recommendation, the Consulate will then forward the waiver application to the Admissibility Review Office ("ARO") to be adjudicated. 

In determining whether or not to forward a waiver application to the ARO, consular officers conduct a preliminary review of the application package. First, consular officials ensure that the applicant meets certain basic conditions, which include that the applicant: (1) is not inadmissible as an intending immigrant; (2) is not inadmissible under certain security grounds; (3) is not seeking a waiver of nonimmigrant documentary requirements; and (4) is qualified for the nonimmigrant visa he or she is seeking to obtain. Second, consular officers are advised to consider the following factors outlined by the Board of Immigration Appeals ("BIA") in Matter of Hranka: (1) the risk of harm if the applicant is admitted; (2) the seriousness of the applicant's prior immigration or criminal law violations; and (3) the nature of the applicant's reasons for wishing to enter the U.S. If after reviewing the application consular officers are satisfied with the waiver application, the application will be forwarded, together with a favorable recommendation, to the ARO, for final adjudication. 

Recently, the ARO informed all consulates that they are experiencing unusual backlogs. In previous years, the process took only a couple of weeks, but current processing times may take several months. Our office has heard from several frustrated clients whose waiver processing times have now gone beyond two months. Unfortunately, there is nothing that can be done to speed up the process; however, in urgent situations, there is a procedure called parole that may be granted to allow an applicant to enter the U.S. 

If you are interested in more information about nonimmigrant waivers or parole, please contact our office to set up a consultation.

B-1 (Business Visitor) Status Approved for Canadian Citizen to Perform After-Sales Service Training to US Employees

SRW Senior Partner Mr. William Reich appeared at the Peace Bridge Port of Entry in Buffalo, New York, to accompany a Canadian citizen client to apply for admission in B-1 (business visitor) status, so that the client could perform after-sales services (training) under NAFTA to employees of a U.S. customer.

As background, the client is currently employed by a Canadian company which is a wholesale distributor of sophisticated technical products that are imported from Europe and who had previously received specialized training in Europe on the manufacturing of these highly expensive products. The Canadian company recently sold equipment to a U.S. affiliate so that the U.S. company could set up the manufacturing process in the U.S. Under the terms of the sales agreement between the two companies, the Canadian company was required to provide training on the use of the equipment to the U.S. company’s employees.   The question was – how would the client enter the U.S. to provide this training while complying with U.S. immigration laws? 

After reviewing the case and researching the options, our firm was able to determine that the client would qualify under the B-1 NAFTA after-sales provisions found under 8 C.F.R. §214.2(b)(4)(i)(F) and CBP Inspector’s Field Manual §15.5(c)(1)(F).  Prior to the client’s appearance at the Port of Entry, our firm prepared and submitted evidence of the client’s eligibility to enter in B-1 status, including evidence of his continued employment by the Canadian company, his specialized training, and a copy of the sales agreement (which we had also reviewed to ensure it met the necessary requirements). At the Port  of Entry, after being thoroughly scrutinized by CBP, the client was issued a multiple entry Form I-94 valid for six months so that he could periodically enter the U.S. to provide the necessary training.  During the examination, CBP was concerned whether the applicant would be performing employment duties and not just providing training (because of the hands-on approach involved in the training) which we were able to overcome.

This situation highlights the fact that whenever possible, B-1 (business visitor) status should be considered as an option given that there are no government filing fees (compared to H’s or L’s) and are quickly adjudicated (at the border for Canadian citizens). However, because of the limited scope of B-1 permissible activities, clients should educate themselves on whether their proposed activities fall into the B-1 category. For additional information on B-1’s and permissible activities under B-1, please contact our office to schedule a consultation.