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.

Humanitarian Reinstatement of an I-130 After Petitioner’s Death

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Can a Revoked I-130 Be Reinstated?

If you are the principal beneficiary of an approved I-130, your petitioner relative has died, and USCIS has revoked that I-130, that I-130 can then be reinstated due to humanitarian reasons .  Humanitarian reinstatement is not available if the petitioner died while the petition was pending.

If your I-130 was revoked due to a mistake, error, fraud, or alleged misrepresentation there are still options for a positive outcome but not through humanitarian reinstatement.

Who is Eligible for Humanitarian Reinstatement?

Your I-130 is eligible for humanitarian reinstatement if you meet the following requirements:

  • You are the principal beneficiary of an approved I-130;
  • Your petitioner relative has died;
  • You have a substitute sponsor eligible to file an I-864 on your behalf; and
  • Your case warrant’s the exercise of USCIS’s favorable discretion to reinstate your case.

What are Humanitarian Reasons?

Humanitarian refers to actions or activities that are intended to promote human welfare and to improve the well-being of individuals or communities.  In immigration cases, humanitarian generally refers to actions or policies that are intended to help individuals or groups who are facing difficult or dire circumstances, such as war, persecution, or natural disasters.  When adjudicating a request for humanitarian reinstatement, USCIS will look at the following factors when deciding whether or no to exercise their discretion.

    • Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
    • Advanced age or health concerns of the beneficiary or any following-to-join family members of the beneficiary;
    • Lawful residence in the United States for a lengthy period;
    • Ties (or lack thereof) to your home country;
    • Other factors, such as unusually lengthy government processing delays; and
    • Any and all other factors you believe weigh in favor of reinstatement, with supporting documentation.

What Happens after Humanitarian Reinstatement is Approved?

If humanitarian reinstatement of an I-130 petition is approved, the USCIS will re-open and reconsider the original I-130 petition.  The foreign national beneficiary may be able to continue with the immigration process either through an adjustment of status application or through consular processing at a US consulate abroad.

If you have a similar case, contact our office through our website or give us a call at 305 515 0613. We look forward to helping you win your case like we have for thousands of other clients.

Writ of Mandamus to Overcome 221(g) Administrative Processing at the Consulate

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What is a Writ of Mandamus?

A writ of mandamus is a filing that can be made in federal court to force the US Consulate to act on a visa application.

Why Pursue a Writ of Mandamus?

The purpose of filing a mandamus action is to get the Consulate to act.  Administrative processing is normally resolved in a few months but in some cases it can last years.  A federal judge has the authority to order the Consulate to end the delay and make a decision in a case.

What are the Possible Outcomes of Filing a Writ of Mandamus?

Either the judge is going to agree to order the Consulate to act or they are not.  However, winning the case is court does not mean that the visa will be approved.  In fact, in many cases the Consulate will still deny the visa.  There is a significant chance that filing a writ of mandamus will result in your visa application being denied and the Consulate will deem you inadmissible to the United States.  These inadmissibility determination can be lifetime bans from ever obtaining a visa or entering the US.

Does the Messersmith Law Firm take Mandamus cases?

No.  Before we ever take case, we always explain to our potential clients that their case can be denied.  We will generally provide guidance on a client’s chances and in every case there is always a chance of a denial.  We hate denials and we always do our best to avoid them.  However, we do not take mandamus cases because there is a very real chance that even if we win the mandamus action in court, the Consulate will refuse our client’s visa application and ban them from the US forever.  We do not want to take a case unless we believe that we can get it approved.  Our goal is to help people – not put them in a worse position than before they retained us so we do not take mandamus cases.

What is the Alternative to a Mandamus Action?  Am I Supposed to Wait Forever?

Recently a client came to us with a case that had been in administrative processing for four years.  Every six months they would ask him for more information or more documents.  He would provide them thinking that would resolve things and he could obtain his visa.  But, it never ended.  Just endless requests for more documents and when he made inquiries, he was told that his case was still under administrative processing.  He came to us asking us to file a mandamus petition.  He said that he read on different forums that other people had done this.  We refused to risk his future by filing a mandamus petition and offered instead to work with both the Consulate and the US Department of State to resolve the delay.  Not only can the State Dept order the Consulate to act but they can order them to act in a specific way.  We were able to get our client’s visa approved in 9 months.

What if I already filed a Mandamus Petition and the Consulate Banned me from Coming to the US?

What’s done is done and the best thing to do is to regroup and continue the fight.  We see a lot of INA 212(a)(6)(C)(i), INA 212(a)(2)(C)(i), INA 212(a)(3)(a), and INA 212(a)(3)(b) inadmissibility determinations following a mandamus “win.”  Many clients came to us sought help and expressed that they were innocent.  The way to move forward is to appeal or challenge the Consulate’s determination of inadmissibility and we have done so in many cases and have extensive experience in these matters.  If you have a similar case, contact our office through our website or give us a call at 305 515 0613. We look forward to helping you win your case like we have for thousands of other clients.

Visa Cancelled or Revoked Under 22 CFR 41.122

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Visa Cancelled or Revoked Under 22 CFR 41.122

Did an immigration officer recently cancel your visa and write 22 CFR 41.122 on it? 22 CFR 41.122 gives immigration officers authority to revoke or cancel visas which they normally use in two different situations.  If a consular official believes that a visa was issued incorrectly or the visa holder violated the terms of their visa, they can revoke a visa pursuant to 22 CFR 41.122(a).  Consular officials can take this action at any time after issuing a visa.  Most commonly they will notify a visa holder by email of their intentions to revoke or they will physically meet a visa holder at the airport.  In the situation where a visa holder is applying for entry to the US at the airport, CBP can refuse entry and cancel the visa on the spot pursuant to 22 CFR 41.122(e) and instruct the applicant to return to their home country.

Why Was My Visa Cancelled?

There are many reasons why your visa was cancelled.  The most common reasons are document fraud, problems with the police, violations of status, and issues related to another failed or denied application.  The immigration officer should inform you of their reasons and give you an opportunity to defend yourself prior to revocation.  Following revocation, you should be provided with documentation which gives  you the reason behind their decision.  Ordinarily, cancellation comes with some other penalty and this will be listed on your paperwork.

How Do I Appeal a Revoked Visa?

As with any negative decision, an appeal or request for reconsideration must be pursued through the agency that issued the decision.  You should act to appeal any visa cancellation or revocation as quickly as possible.  Your chances of securing a reversal are higher the sooner you act.  The Messersmith Law Firm has helped people contest visa revocations and overcome serious immigration charges for nearly 20 years.   In most circumstances visa cancellations come with other problems like document fraud (INA 212(a)(6)(C)(i)), smuggling (INA 212(a)(6)(E)), or removal from the US (INA 212(a)(9)(A)).  If you have a similar case or would like to avoid this potential problem, contact our office through our website or give us a call at 305 515 0613. We look forward to helping you win your case like we have for thousands of other clients.

How to Fix a 221(g) Administrative Processing Refusal

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How to Fix a 221(g) Administrative Processing Refusal

When adjudicating an immigrant or non immigrant visa application, a consular officer may determine that additional information from sources other than the applicant may help establish an applicant’s eligibility for a visa.  In such cases, refused visa applications warrant further administrative processing.   Upon completion of the case-specific administrative processing, the consular officer might conclude that an applicant is now qualified for the visa for which he or she applied. Alternatively, the officer may conclude that the applicant remains ineligible for a visa.  When administrative processing is required, the consular officer will inform the applicant at the end of the interview. The duration of the administrative processing will vary based on the individual circumstances of each case.

This means that there are essentially two types of 221(g) refusals.  The first type is basically a request for more evidence.  The applicant did not prove their case with the documents submitted and they are provided with another opportunity to supply the required documents before a final decision is made.  In this situation, the applicant has one year to provide the requested documents and since this is the applicant’s final opportunity to present their case, this must be undertaken with great care.  The second type of 221(g) refusal relates to administrative processing.  In this situation, the Embassy needs additional information but they need it from a third party – not from the applicant.  Usually, administrative processing can be resolved in a matter of weeks but depending on individual circumstances, it can cause multiyear delays.  Fortunately, if an applicant’s situation presents a unique hardship, we can work with the Embassy to close the administrative processing delay and expedite a decision on the visa application.

We have successfully helped many clients obtain visas after 221(g)s were issued.  If you need our help to overturn a 221(g) refusal, please feel free to contact us at 305 515 0613 or email us at info@messersmithlaw.com.

Solutions to OPT and STEM OPT allegations of INA 212(a)(6)(C)(i) fraud related to AZTech, Wireclass, Global IT Experts, and Findream

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INA 212(a)(6)(C)(i) fraud related to AZTech, Wireclass, Global IT Experts, and Findream

Over the past three years, tens of thousands of F1 visa students have been permanently banned from returning to the United States pursuant to INA 212(a)(6)(C)(i).  Some students were refused visas at the Embassy abroad and others have been removed from the country from US immigration.  The reason?  Their connection to companies like AZTech, Wireclass, Global IT Experts, and Findream while in OPT status.

OPT is a 12-month work authorization available to F1 visa holders who have been full-time students for at least two consecutive semesters and plan to seek employment in the United States in their fields of study.  Certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion OPT.  A job offer is not required to apply for OPT but foreign students are only allowed a cumulative total of 90 days of unemployment. Many students who had trouble fining employment within 90 days of obtaining their OPT turned to companies such as AZTech, Wireclass, Global IT Experts, and Findream who offered to train and place them in positions within their field.  For many of these students who accepted these offers were asked to pay for training that was never provided and the promised job placement never occurred.  Because these students reported that they found employment through one of these companies but, through no fault of their own, never actually obtained employment, ICE, USCIS, and the US Embassy have taken the position that these students are guilty of immigration fraud.

Those accused of fraud under INA 212(a)(6)(C)(i) received a lifetime ban from entering the United States and those who were also removed from the US received an addition bar of reentry of five years or longer.  Fortunately for these students, there are several ways to overcome this ground of inadmissibility.  The first being a nonimmigrant visa waiver.  A nonimmigrant visa waiver provides temporary forgiveness of a past fraud charge.  Another option is to dispute the fraud accusation with the relevant government agency that levied the fraud accusation.   We have successfully helped many clients connected with alleged OPT fraud obtain waivers or getting the fraud charges removed from their records.  This is not an easy or simple process but it is very rewarding to clear an innocent person’s name.  Victims of fraud should not be banned from the US. If you have a similar case or would like to avoid this potential problem, contact our office through our website or give us a call at 305 515 0613. We look forward to helping you win your case like we have for thousands of other clients.

INA 212(a)(7)(A)(i)(i) Expedited Removal

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INA 212(a)(7)(A)(i)(i) Expedited Removal

When applying for entry to the United States, a foreign national in possession of a valid visa must demonstrate to the CBP officer at the port of entry that they are eligible to enter in the visa classification requested.  For example, a B2 tourist must demonstrate that they will return home after their period  of authorized stay, have sufficient funds to cover their trip without working, and actually be coming for a tourist purpose.  An H1B worker must show that he or she is truly coming to work for their petitioning employer and have not previously violated their immigration status.

To determine if the applicant is eligible for entry, they may search the applicant’s luggage, phone, email, confirm hotel reservations, call the potential employer or do any other investigation deemed necessary.  Upon conclusion, if the CBP officer does not believe the visa holder is eligible for entry under the requested classification then he will cancel the applicant’s visa which renders the applicant inadmissible under INA 212(a)(7)(A) or INA 212(a)(7)(B).  Then CBP may decide that the applicant’s actions warrant removal from the US and will order the applicant removed and barred from entry for 5 years.

Most our of clients who encounter this problem or potential problem do not seek our help until after the removal order is issued.  In some cases, there are methods for getting the removal order rescinded and in others, a waiver may be a possibility.

In 2020, we were contacted by a potential client who was a frequent traveler to the US who used a B1/B2 for entry.  She always entered for a business purpose which was to visit certain business contacts related to her foreign business enterprise.  She never worked or conducted business in the United States.  Unfortunately, during her latest attempted entry, CBP searched her phone and based on some files located therein, believed that her actions constituted unauthorized employment.  CBP cancelled her visa, removed her from the country and instructed her to obtain a work visa for future entries to the US.  When she described her previous actions in the US, we believed that it did not constitute employment nor was a work visa required.  We helped her gather evidence to prove her innocence of CBP’s accusations and we were able to get the removal order rescinded so she could continue her business trips as done before.

In 2021, we were contacted by potential client who applied for entry as an H4 visa holder.  She had plenty of evidence that her husband was abiding by the terms of his H1B visa and that they had a genuine marriage.  However, she was previously in the US on a student visa and CBP asked her many questions regarding her previous OPT employment.  CBP discovered that her OPT employer was on a list of fraudulent employers that gave out fake employment letters for a fee.  CBP cancelled her H4 visa, removed her from the country, and barred her for 5 years.  When she described her work with her previous OPT employer, we felt that we could demonstrate that she was the victim of OPT fraud, not the perpetrator.  We helped her gather evidence to prove her innocence of CBP’s accusations and we were able to get the removal order rescinded so she could reunite with her husband in the US with an H4 visa.

If you have a similar case or would like to avoid this potential problem, contact our office through our website or give us a call at 305 515 0613. We look forward to helping you win your case like we have for thousands of other clients.

EB2 NIW No Citation Approvals

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EB2 NIW No Citation Approvals

Many potential clients who approach us with an interest in pursuing an NIW green card wrongfully believe that the NIW classification is only open to researchers or scientists and that citations are mandatory.  This is simply not the case.  For nearly 20 years, we have been handling NIW cases for researchers with low or no citation counts and others in completely different fields.  These include clients working as physicians, IT professionals, engineers, investors, small business owners, and project managers.  Below, we’ll describe a variety of different NIW cases that we’ve handled and handled successfully.  All for clients with low or no citations.

  1. Physician from Iran.  NIW green card application made during client’s fellowship

Our firm assisted an Iran national who earned a medical science degree outside of the US but completed his internship and residency in the United States.  At the time of filing, our client had made three publications which were cited a total of 7 times.  Our client had made some other accomplishments in his field, which we highlighted in the petition to USCIS, and his NIW was approved by the Texas Service Center.

  1. Project Manger with an MBA from Nigeria

Our firm assisted a Nigerian national who worked for an oil and gas company as a project manager.  He had never done any research in his professional or academic career.  No papers, no publications, no presentations, no citations.  We were able to successfully argue his case to USCIS on the basis of his work on several different oil extraction projects.  His NIW was approved by the Nebraska Service Center.

  1.  University Instructor from Romania

Our firm assisted a Romanian national who held a PhD in one of the liberal arts fields.  Our client had published her work in professional journals but had no citations.  Zero citations.  However, we were able to show USCIS that her work has made an impact in her field regardless of the fact that her work was uncited.  Her NIW was approved by the Nebraska Service Center.

  1. Small business owner and investor from Bulgaria

Our firm assisted a Bulgarian national who purchased a small business and expanded the scope of its operations.  Our client was not a scientist or researcher and had no papers or other publications let alone any citations.  We were able to demonstrate the benefits of his work based on the number of US employees he hired, the revenues and profits from his business and the benefits he provided to his US customers.  His NIW was approved by the Nebraska Service Center.

  1. Materials Engineer from Iran

Our firm assisted a Iranian national who, at the time of filing, worked as graduate teaching assistant for a US university.  He had no papers, patents, or citations but we were able to show USCIS that he was working on a potentially important medical device that could benefit Americans who suffered from a particular degenerative illness.  His NIW was approved by the Texas Service Center.

  1. Marine Engineer from India

Our firm assisted an Indian national who held an MS in Ocean Engineering and and was employed with a small US company as a marine engineer.  Our client had no papers, patents, or citations.  We were able to show that the work he had performed in his field provided a major benefit to the marine industry and USCIS agreed with our position.  His NIW was approved by the Nebraska Service Center.

  1. Math Teacher from Ghana

Our firms assisted a Ghana national who earned a master’s degree in teaching from a US University.  Although he had no papers or publications, he was able to design a teaching tool that helped his students understand new math concepts.  We were able to show that his learning tool was substantially better than others available and USCIS agreed.  His NIW was approved by the Texas Service Center.

  1. Leadership Consultant from Grenada

Our firm assisted a Grenada national who held an operational management PhD from a US university.  She had a couple published papers but no citations.  We were able to show that her work in professional conferences and book sales were sufficient to establish her eligibility for this classification.  USCIS agreed with our position and her NIW was approved by the Nebraska Service Center.

  1. Industrial Engineer from Cameroon

Our firm assisted a Cameroon national who worked for a large US hospital where she sought to create and implement new techniques and processes to increase patient access to medical care in a cost effective manner.  Her NIW was approved by the Texas Service Center.

  1. Design Engineer from Mexico

Our firm assisted a Mexican national who worked for a regional manufacturing company in the US.  Although he did not have any papers or citations, he was credited with inventing a US patent that had some useful applications.  His NIW was approved by the Texas Service Center.

If you are looking to apply for a green card through the NIW program and are worried about your chances due to low or no citations, send us a copy of your resume and we’ll see if we can help.  Contact our office to discuss your options.

Immigration Success Stories – INA 212(a)(2)(c)(i)

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Immigration Success Stories – INA 212(a)(2)(c)(i)

In January of 2018 a Hollywood talent agency informed us that one of their clients applied for a visa nearly six months ago and after a lengthy delay due to administrative processing was just refused pursuant to INA 212(a)(2)(c)(i).  We spoke to their client and learned that during his interview, the Consular officer repeatedly questioned his work, his contacts, and made numerous inquiries about his previous manager.  We agreed to take the case.

Our client assured us that he was never a drug trafficker and he wasn’t associated with anyone who was.  He speculated that the Embassy believed that his previous manager was involved.  Winning a INA 212(a)(2)(c)(i) case is complicated because of the “reason to believe” standard.  The Embassy may refuse a visa under INA 212(a)(2)(c)(i) if he or she has a reason to believe the visa applicant is or has been a trafficker or an abettor of a trafficker.

After petitioning the Embassy for further information we were able to learn that they believed our client’s former manager was a drug trafficker and because our client was paid through his manager, their position was that our client was involved.  After an extensive fact finding mission, we were able to prove that our client was not involved in drug trafficking in any capacity and we were able to have the charge completely removed from his record.

Thereafter, we helped the talent agency sponsor this actor for a O1 visa and at his next appointment with the Embassy everything went smoothly and he was able to enter the US without any further issue.  Do you have a similar inadmissibility issue?  If so, contact our office and we’ll see if we can correct this for you.

How to Handle an RFE or NOID

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What is an RFE?

A Request for Evidence or RFE is a second chance to get your case approved by USCIS.  If USCIS determines that the initial application did not contain all required initial evidence or that the evidence submitted does not demonstrate eligibility, an RFE will be issued asking the applicant or petitioner to submit additional documentation.  In some instances an application or petition will be denied without requesting additional evidence but this is extremely rare.   In other cases where USCIS is predisposed to denying an application or petition, it will issue a Notice of Intent to Deny (NOID).  In most cases USCIS will allow 87 days to prepare and file a response to an RFE.

What is a NOID?

A Notice of Intent to Deny or NOID is much harsher than an RFE.  An NOID is issued after USCIS reviewed an application or petition and either 1. believes there is no basis to approve the case or 2. USCIS has other negative evidence, that it may or may not share with the applicant or petitioner, that may render the applicant ineligible.  In most cases USCIS will allow 30 days to prepare and file a response to an NOID.

Why Did USCIS issue an RFE or NOID?

The reasons for the RFE or NOID will depend on the type of application or petition submitted.  For example, if the request relates to an 1-129 petition such as an H1B, USCIS may question whether the position is truly a specialty position or whether or not there is a true employer-employee relationship between the petitioner and beneficiary.  If the request related to an I-140 petition such as an EB1 or NIW, USCIS may question whether the beneficiary’s educational credentials qualify as an advanced degree or if the beneficiary’s professional accomplishments meet the minimum requirements for the petition.

What Should I Do if I Get an RFE or NOID?

First of all, just because you received an RFE or NOID doesn’t mean that you or your attorney did anything wrong.  Your application or petition may have been prepared thoroughly and the adjudicating officer did not review everything or misapplied the laws or regulations.  Getting an RFE or NOID can be an opportunity to reintroduced already submitted documentation and giving them greater emphasis to ensure the adjudicating officer understands their importance.

How Should I Respond to an RFE or NOID?

Most RFEs or NOIDs are complicated and require a certain expertise to handle.  You should be mindful of the the response deadline and understand that your response to their inquiry is likely the last chance you will have to get your case approved unless you are interested in going through the long and difficult appeals process.  Strategy is key in handling your response and we have been handling RFE and NOID responses for almost 20 years.  A well documented, convincing and thoroughly prepared application is the only way to win in either situation.  We have won many difficult cases.  If you would like our expert help, please feel free to email your RFE or NOID to info@messersmithlaw.com or call us at 305 515 0613.   We look forward to winning your case for you.

Immigration Success Stories – INA 212(a)(6)(c)(ii)

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Immigration Success Stories – INA 212(a)(6)(c)(ii)

In October of 2001, our client wanted to enter the US but did not have a visa.  She was introduced a man named Hamid in Toronto, who offered to take her for $2,000 and told her that he could get her in legally.   Hamid drove her to the Seattle port of entry and a CBP officer stopped them and questioned them separately.  Separately, Hamid told the CBP officer that our client was a US citizen and produced his own daughter’s US birth certificate claiming that it belonged to our client.  At the same time, when our client was questioned separately, she stated that she was an Indian citizen and produced her Indian passport.  She was refused entry.

Our client later applied for an immigrant visa through the US consulate in Mumbai, India.  Based on her previous encounter with CBP, which occurred nearly 20 years ago, the Consular Officer found our client ineligible under Section 212(a)(6)(c)(ii).  She protested and attempted to argue the matter but she was dismissed and was told she would never enter the US.

When our client came to us, she felt she had no chance of ever entering the US but wanted to see if there was any possibility for a waiver.  Under current rules, she would never be eligible for an immigrant visa waiver.  When we told her this she was distraught but we told her that she had one other option.  Because Hamid was the one who told the CBP officer that she was a US citizen, we felt we had a strong chance to overturn the Consular Officer’s decision.  And that is exactly what we did.  Just 3 months after we took her case, we were able to get the INA 212(a)(6)(c)(ii) charge completely removed from her record and she was able to obtain her immigrant visa.

Do you have a similar inadmissibility issue?  If so, contact our office and we’ll see if we can correct this for you.