When the Consular Officer Does Not Want to Forward a Favorable Non-Immigrant Waiver Recommendation to the Admissibility Review Office (ARO)

In order for a foreign national to be approved for a U.S. non-immigrant visa, the foreign national must not be inadmissible to the U.S. under INA §212.  For those foreign nationals that are inadmissible under INA §212, the Consular Officer may recommend that the foreign national be approved for a non-immigrant waiver of inadmissibility under INA §212(d)(3)(A)(i), which waives many of the enumerated grounds of inadmissibility.  A detailed explanation of this process is available here.

If the Consular Officer favorably recommends the foreign national’s waiver application – perfect! Now the foreign national can wait until the application is adjudicated by the Admissibility Review Office (ARO). 

However, what can a foreign national do when the Consular Officer is unwilling to recommend them for the non-immigrant waiver?   In that case, even though the Consular Officer does not believe that a waiver should not be granted, the foreign national can ask that the Consular Officer submit the case to the Visa Office (VO) for an Advisory Opinion.  The VO has independent authority to recommend such a waiver to the ARO and may choose to do so over a Consular Officer’s objection. 

Notably, the Consular Officer does not have the discretion to deny the foreign national’s request for an Advisory Opinion from the VO.  See 9 FAM 40.301 N6.2.  However, the Consular Officer may submit a recommendation to the VO with an explanation of the reasons that they are objecting to the favorable recommendation of the non-immigrant waiver.

Is DHS About to Blunder? A Cost-Beneft Analysis of Abandoning Form I-94

Claiming that abandoning Form I-94 will save $17 million dollars to the agency, the Department of Homeland Security, together with its sister government agencies, are planning to dismantle the Form I-94 record of admission as we know it today.  (Form I-94 is the little white card that is stapled into a foreign national’s passport upon entry into the U.S. to evidence the status in which they are being admitted and the authorized duration of their stay.)

The I-94 not only serves to record the entry and departure of every foreign national, it also serves as important evidence of lawful immigration status in other applications. For example:

• Employers for Form I-9 Verification
• Social Security Administration for issuance of Social Security Cards (if applicable)
• State DMV’s for issuance of driver’s license (if applicable)
• Status Identification for Law Enforcement (Police, Airport Personnel, U.S. Customs & Border Protection (CBP), U.S. Immigration & Customs Enforcement (ICE), U.S. Citizenship & Immigration Services (CIS)

While eliminating the I-94 sounds good in theory, the cost savings may back fire in many ways. Questions that immediately jump out are - Who will populate the information to be captured once the I-94 is eliminated? How will the information be recorded in the foreign national’s passport? How would other government agencies be trained to understand the new methodology that would be used when DHS hasn’t yet figured out how to document the foreign national once the I-94 is eliminated?

From a safety perspective, the time that is used by the officer in reviewing the information on the I-94 together with the applicant allows that officer to question the applicant, view his body language and make other assessments regarding that individual. Will that be lost by automating the I-94 process? Is this going to put our nation at a greater risk? Is $17 million dollars that important in the overall scheme and budget of DHS?

History indicates that every time DHS has tried to streamline a process, the evil forces in the world figure out a way to take advantage and circumvent the process, leaving us exposed to a greater danger.

I was denied an H-1B visa under INA § 212(a)(6)(c)(i) fraud/misrepresentation. I want to clear my record so I can visit the United States to meet my friends and relatives.

Question:

Dear SRW Border Lawyers,

I completed my Master of Science degree in the United States several years ago. After completing my Master's degree, I accepted a job. My employer filed an H-1B visa on my behalf. The H-1B visa was approved, but when I went to have my passport stamped at the U.S. Embassy in Mumbai, I was denied under INA § 212(a)(6)(c)(i) fraud/misrepresentation. I want to clear my record so I can enter the United States to visit my friends and relatives.

Would it be possible to clear my status and eligible to enter in United States again?

Answer:

Thank you for contacting the SRW Border Team. You indicate in your question that your H-1B visa was denied due to a finding of inadmissibility under INA § 212(a)(6)(c)(i) (Fraud/Willful Misrepresentation). The SRW Border Team deals with INA § 212(a)(6)(C)(i) issues frequently. As you may know, inadmissibility under INA § 212(a)(6)(C)(i) creates a lifetime bar for entry into the U.S. Fortunately, there are means to overcome a fraud charge, whether it is (1) through a waiver, or (2) by challenging the finding itself and having it removed from your record. At this time, we simply do not have enough information to determine what course of action, if any, is best suited for your situation. To better understand your case and discuss what options are available to you, we strongly encourage you to contact our office and set up a consultation.

We look forward to working with you.

I am a Canadian citizen who was charged with fraud pursuant to INA § 212(a)(6)(C)(i) for incorrectly answering a question on a B1/B2 visa application. I did not intend to lie or misrepresent any information on my application. How can I clear my record?

Question:

Dear SRW Border Team,

I am a Canadian citizen. I came across your website and found it to be the best resource I have to help me with my U.S. immigration issues.

I came to the United States in April of 2001 on an H-1B Visa. My visa expired in 2003, but I remained in the United States until 2004 waiting to become a Canadian Permanent Resident. At the time, I did not realize that remaining in the country was unlawful. I moved to Canada in 2004 as soon as I became a Canadian Permanent Resident. In 2005, I applied and received a B1/B2 visitor visa. When I tried to cross the border, a Customs and Border Protection  (“CBP”) officer informed me that she was cancelling my visa because of my overstay in the US, and that my response to one of the questions on my visitor's visa application was incorrect. The question was about unlawful stay or any other charges against me. Since I was unaware of my unlawful stay in the U.S., I was not very clear about that question and selected "no" as my answer. The CBP officer at the border asked me to return to Canada and apply for a waiver once I get my Canadian citizenship. I received my Canadian citizenship in 2008 and then applied for a Form I-192 nonimmigrant waiver. My waiver was approved for 1 year. Once that waiver expired, I applied again for another Form I-192 waiver in 2011 and it was approved for 5 years. On the waiver there is one inadmissibility clause charging INA § 212(a)(6)(C)(i). When I was reading one of your blog entries on your website, it says that INA § 212(a)(6)(C)(i) (Fraud) is a permanent inadmissibility. I really need your advice about removing the fraud charge from my record. I never intended to lie or misrepresent that I had overstayed my H-1B visa. I would really appreciate your advice and help in this matter.

Answer:

Thank you for emailing the SRW Border Team. We would be more than happy to assist you with your immigration matter.

In order to properly assist you, however, we would need to speak to you in greater detail to learn more about the specifics of your case.  A consultation will give us an opportunity to look at each aspect of your case. For example, we will want to determine for certain that you are inadmissible under INA § 212(a)(9)(B)(i)(I) for allegedly accumulating unlawful presence after failing to leave the United States by reviewing the Form I-94 that you would have been issued.

As far as the fraud, based on your email, you claim to have perhaps overstayed your H-1B status for more than (1) one year. As a result, when you failed to include such information about your overstay on your B1/B2 visitor visa application in 2005, you were subsequently charged with fraud pursuant to INA § 212(a)(6)(C)(i) by U.S. Customs & Border Protection (CBP) when you attempted to enter the U.S. with that visa.  Fraud is indeed a lifetime bar and will require a waiver for the rest of your life.

However, since you were presumably unaware that you accumulated unlawful presence, we may be able to attack the fraud charge lodged against you on the basis that your failure to address your unlawful presence in your 2005 visa application was neither knowing nor intentional. (Please click on the following link to read about a recent case where we successfully vacated a fraud charged leveled against a client: http://www.srwborderlawyers.com/blog/2012/6/17/fraudmisrepresentation-charge-of-inadmissibility-under-ina-2.html ). Even if vacating the fraud charge is not an option, we can discuss how you can still enter the U.S. as a non-immigrant (H-1B, TN, etc.) using your current waiver.  

We hope the above information was helpful.  We look forward to speaking with you and helping you through this stressful time.