Immigration Lawyer Peter Messersmith

Peter Messersmith is an attorney located in Orlando, Florida. He has been practicing immigration law since 2002 and has represented thousands of immigrants and US businesses with their immigration needs.

212(a)(6)(C)(i) Fraud or Misrepresentation

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212(a)(6)(C)(i) Fraud or Misrepresentation

Inadmissibility Series INA 212– Part I

212(a)(6)(C)(i) Fraud or Misrepresentation

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States.  Some classes are complete bars and others allow specific types of waivers of inadmissibility.  If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card.  There are many ways a foreign national may be deemed inadmissible.  The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States.  In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination.  You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows.  In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(6)(C)(i) Fraud or Misrepresentation

In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

How to obtain a determination that the 212(a)(6)(C)(i) Fraud or Misrepresentation ground of inadmissibility was incorrectly made.

No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(6)(C)(i) Fraud or Misrepresentation

There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

INA 212(i) – The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien 25b/ or, in the case of a VAWA self-petitioner 6aa/ , the alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child.

INA § 237(a)(1)(H) – The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

Waiver of Inadmissibility for a Non Immigrant Visa due to 212(a)(6)(C)(i) Fraud or Misrepresentation

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again.  This is simply not true.  For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination.  We have successfully helped many clients who were determined to be inadmissible and we can assist you.  We believe that with the right approach, there is always a hope to win your case.

Please feel free to contact us at 305-515-0613 or email us at info@messersmithlaw.com if you’d like our assistance.

Political Asylum Series: India

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Political Asylum – Part I

Spotlight: India

I’m going to introduce a new segment to my blog readers.  Many current and potential clients contact me or my office to discuss whether or not they have a legitimate claim to asylum in the United States.  I am going to start a series on this blog to discuss previous asylum applications and the applicant’s country of origin so you can use these posts to help yourself determine if asylum is a possibility for you

This asylum post will cover asylum applications where the applicant is of Indian origin.

Political Asylum Requirements

Foreign nationals in the US who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social or political group may obtain asylum.

Examples of Successful US Asylum Cases Made by Indian Nationals

  • A married women who contracted HIV and fears her family will disown her or force her to get a divorce;
  • A couple who had an interfaith marriage, Hindu and Sikh;
  • Tamil males between the ages of 15 and 45;
  • A son whose father made a political speech which resulted in the father being beat up by the Bhindrawala Tiger Force (BTF); and
  • A Sikh man accused of supporting Sikh separatists and beaten and arrested by the Indian police.

We can help you win your asylum claim and obtain permanent residency (green card) in the US

Many Indian nationals have credible fear of persecution in India that can lead to an asylum approval.  However, most asylum cases are denied due to applicants failure to articulate their fear and document events that have led to that fear.  We have successfully helped many Indian clients and we are familiar with many circumstances that can lead to a successful asylum claim.  In our experience, most asylum applications are adjudicated in 3-6 months.  It is best, but not mandatory, to file your asylum application within the first 12 months of your entry to the US and while you have a valid immigration status such as a visitor or work visa.   We understand the fear and the pain you’re going through and we’ll make sure that your asylum process is as painless as possible.

USCIS Filing Fees on the Rise Again!

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On August 13, 2010, President Obama signed Public Law 111-230 into law which dramatically increases H1B and L1 filing fees for certain US companies.  The new law went into effect immediately and though Form I-129 has not yet incorporated the new law into the form, all US petitioning companies must disclose whether they are subject or not.

The new law requires additional filing fees of $2,000 for H1B visa petitioner and $2,250 for L1A and L1B petitions where the US petitioning company employs 50 or more employees in the United States and more than 50 percent of its employees in the United States are in H-1B or L visa status.  Petitioners with fewer than 50 employees or those who employ primarily non H1B or L visa workers will not be affected.

However, all applicants will be affected by USCIS’s plan to raise all other filing fees.  On June 11, 2010 USCIS announced their plan to raise fees across the board an average of 10%.  This prospective fee increase is still in the public comment stage but is expected to go into effect shortly.  The agency stated that the fees needed to be increased to offset lost revenue from fewer applications being filed.  This is in sharp contrast to their previous reasoning when they raised fees in 2007 to increase staffing to adjudicate applications faster.

The bureaucracy is expanding to meet the needs of the expanding bureaucracy. – Unknown

H1B Visa Extensions Beyond the Six Year Limitation

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The maximum duration for status as an H1B visa holder is six years.  Any time spent in L status or other H status such as H2B or H4 visa status is included.  Normally, a foreign national who wishes to hold H1B visa status beyond the six year maximum is prohibited unless he or she spends at least one year outside of the US before re-entering in H1B visa status.  This six year limited does not apply in the following cases:

  • The H1B visa holder is working on a certain US Department of Defense project; or
  • Where the work is seasonal or intermittent or is in the US for less than six months out of the year.

There are three strategies which can be used to overcome the six year limitation.

  • AC21 Extensions in One Year or Three Year Increments AC 21 104(a)

An H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year.  Additional extensions may be granted until a decision has been made on the I-485.

  • AC21 Extension in Three Year Increments AC 21 106(c)

An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments.

  • Recapturing Time Spent Outside the US

While this really won’t get you around the six year limit, it does allow an H1B holder to apply for an H1B extension and “recapture” days spent outside of the US.  If the H1B visa holder was outside the US for 61 days in the 6 years they held H1B status, they can recapture those days in an H1B extension application.

EB1 Extraordinary Ability Approvals – Part I

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EB1 Extraordinary Ability – Part I

In continuation of our ongoing segment of national interest waiver approvals, we’re going to discuss another type of self sponsored residency applications.  The EB1 Extraordinary Ability carries both a higher standard of approval and a higher priority for approved applicants.  For Indian and Chinese nationals, an EB1 application means they can obtain US residency (green card) in a matter of weeks or months because the EB1 category is current and is not backlogged or retrogressed like the EB2 NIW category.

In the case I am going to discuss, the applicant was a Chinese national.  We filed the EB1 petition on October3, 2005 and the case was approved on October 11, 2005.  Unfortunately the issuance of the green card in this case was delayed due to an incomplete medical examination by the USCIS civil surgeon but it was still ultimately approved.

EB1 Extraordinary Ability Requirements

In order to qualify for the EB1-EA, the applicant must have won a Nobel Prize OR show documentation in three of the following areas:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

    EB1 Extraordinary Ability Approved Case Part I

    Degree: BA in Biology

    Position: Research Associate at a US University

    Field of Expertise: HIV/AIDS

    Publications: 25

    Citations: 200 including self citations

    Conferences: 54

    Recommendation Letters: 6

    The applicant in this case was a Chinese national.  The EB1 application was approved in approximately 1 week.  This application was filed in 2005 and processing times do vary.  From 2006 through 2008 we saw processing times range from 6-12 months but now they have settled back down and we are regularly seeing approvals issued in 3 months or less.

    While the applicant was certainly lacking an advance d degree, she more than made up for it by producing a large volume of high impact research and presenting that research at both national and international conferences.  Based on her objective accomplishments, we were able to show that the applicant played a leading role in high level research and that she would continue to play a leadership role in future research.  USCIS agreed with our position and approved the petition in just over one week.

    National Interest Waiver Approvals – Part II

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    National Interest Waiver – Part II

    In continuation of our ongoing segment of national interest waiver approvals, we’re going to discuss another previously approved case.  In this matter, the applicant was an Indian national but unlike today, the EB2 category was current for Indian nationals, and we could file an NIW application and there was no extra waiting period beyond normal USCIS processing times.

    National Interest Waiver Requirements

    1. That the alien seeks employment in an area of substantial intrinsic merit;
    2. That the proposed benefit will be national in scope; and
    3. That the national interest would be adversely affected if a labor certification would be required for the alien.

    National Interest Waiver Approved Case Part II

    Degree: MS in Biochemistry

    Position: Senior Laboratory Technician (This position was amended prior to filing)

    Field of Expertise: Stem Cell Derivation

    Publications: 1 (4th author)

    Citations: 8 including self citations

    Abstracts: 11

    Recommendation Letters: 3

    The applicant in this case was an Indian national.  The NIW application was approved although a difficult request for additional evidence was issued that held up the approval for an additional two months.  However, the applicant still obtained his residency approximately 14 months year after filing.  Current NIW processing times are much faster and since the second half of 2009, we are regularly seeing approvals in less than 3 months.

    By looking at the applicant’s job title at the time we took his case (tech), it would seem like a national interest waiver was a long shot.  His publication record certainly did not help.  However, we were able to identify some novel techniques the applicant developed as a tech and were able to convince his University employer to move him to a different position that is more associated with research prior to filing.  This was certainly a difficult case but a case that we were very proud to get approved because the obvious accomplishments were just not there.  If we took this case today we would consider filing a concurrent EB1 filing since the EB2 category is backlogged.

    Vermost Service Center Expedite Requirements

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    The Vermont Service Center (VSC) continues to expedite certain immigration applications in limited circumstances.  You must be prepared to evidence extreme extenuating circumstances creating a hardship to the petitioner or applicant.  Expedited processing is not available to I-129 applications that are eligible for premium processing except to nonprofit organizations and those seeking H2A classification.

    Expedited processing may be granted in the following situations:

    1.  COMPELLING HUMANITARIAN NEEDS

    2.  EXTREME EMERGENT OR UNFORSEEN CIRCUMSTANCES

    3. SEVERE FINANCIAL LOSS TO COMPANY OR INDIVIDUAL

    4. USCIS SERVICE ERROR

    5. DEPT OF DEFENSE or NATIONAL INTEREST SITUATION

    6. NONPROFIT ORGANIZATION REQUEST IN FURTHERANCE OF THE CULTURAL AND SOCIAL INTERESTS OF THE USA

    7. COMPELLING INTEREST OF THE USCIS

    The VSC will review all expedite requests within 5 business days but may request additional evidence before making a decision on the matter.

    National Interest Waiver Approvals – Part I

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    National Interest Waiver – Part I

    I’m going to introduce a new segment to my blog readers.  Many current and potential clients contact me or my office to discuss whether or not they can qualify for certain applications like the national interest waiver.  I wrote one previous entry describing the typical qualifications for our NIW clients but I would like to start a periodic series describing particular NIW cases that we have successfully handled in the past.

    National Interest Waiver Requirements

    1. That the alien seeks employment in an area of substantial intrinsic merit;
    2. That the proposed benefit will be national in scope; and
    3. That the national interest would be adversely affected if a labor certification would be required for the alien.

    National Interest Waiver Approved Case Part I

    Degree: PhD in Physics

    Position: Research Associate

    Field of Expertise: Materials Science

    Publications: 14

    Citations: 11 including self citations

    Conferences: 21

    Recommendation Letters: 4

    The applicant in this case was a South Korea national.  It was approved without a request for additional evidence and because the visa numbers were current for the EB2 category, the applicant obtained her residency approximately 1 year after filing.  Current NIW processing times are much faster and since the second half of 2009, we are regularly seeing approvals in less than 3 months.

    This applicant surpassed the minimum requirements for an NIW application.  Most of our clients have 4 publications or less and are employed as a post doc at a University.  However, the applicant had a very poor publication to citation ratio.  This could lead the adjudicating officer to believe that her work was not well regarded and of poor quality.  In a sense this was true but we were able to overcome this issue by highlighting her other accomplishments and through her recommendation letters.