Immigration Lawyer Peter Messersmith | US Immigration Blog

212(a)(2)(D)(i) Prostitution

January 10, 2020October 16, 2016 by Immigration Lawyer Peter Messersmith

212(a)(2)(D)(i) Prostitution

Inadmissibility Series INA 212– Part V

212(a)(2)(D)(i) Prostitution

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)(2)(D)(i) Prostitution

In general.- Any alien who is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status is inadmissible.

How to obtain a determination that the 212(a)(2)(D)(i) Prostitution ground of inadmissibility was incorrectly made.

If you believe that the 212(a)(2)(D)(i) Prostitution determination was made in error in your case, we can help you overcome it. 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)(2)(D)(i) Prostitution

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).

212(h) provides three avenues for a 212(a)(2)(D)(i) waiver.

Where the foreign national’s activity occurred 15+ years ago, can demonstrate rehabilitation and his or her admission to the US would not be contrary to the national welfare, safety and security of the US;
Where the foreign national is the spouse, parent or child of a USC/LPR and can demonstrate that the US relative would suffer extreme hardship if the foreign national cannot enter the US; or
The foreign national is a VAWA self-petitioner.

Waiver of Inadmissibility for a Non immigrant Visa due to 212(a)(2)(D)(i) Prostitution

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.

212(a)(3)(B) Terrorist Activities

October 26, 2016October 16, 2016 by Immigration Lawyer Peter Messersmith

212(a)(3)(B) Terrorist Activities

Inadmissibility Series INA 212– Part VI

212(a)(3)(B) Terrorist Activities

In general.-Any alien who has engaged in a terrorist activity, a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity is a representative of a terrorist organization or a political, social, or other group that endorses or espouses terrorist activity is a member of a terrorist organization is a member of a terrorist organization, unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization has received military-type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization or is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years, is inadmissible.

An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.

This section shall not apply to a spouse or child who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section or whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(3)(B) Terrorist Activities ground of inadmissibility

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).

There is no immigrant waiver for 212(a)(3)(B).

Waiver of Inadmissibility for a Non immigrant Visa due to 212(a)(3)(B) Terrorist Activities ground of inadmissibility

EB1 Extraordinary Ability Petitions for Managers: Project Manager, IT Manager, Marketing Manger, Software Development Manager, and other Businessmen

October 20, 2016August 22, 2016 by Immigration Lawyer Peter Messersmith

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card. No job offer or labor certification is required. The requirements for this category are quite high but not insurmountable. Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.

Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes. This is simply not the case. We have helped many people in business fields with job titles like Project Manger, IT Manager, Marketing Manger, or Software Development Manager self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

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.

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three. We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough. Typically managers like IT Managers, Project Managers and other people in the business field have similar types of experience and accomplishments. Awards are rare and usually company specific and none have any artistic exhibitions or performing art success. However, most of our clients do judge the work of the peers in the form of performance evaluations, business proposals, or by managing specific projects. Most of our clients are able to show that projects that they have managed or lead are significant and have made an impact in the field. Many projects result in economic benefits, job creation, market share increase or other specific benefits. Managers by definition are leadership positions. Most of our clients are able to show that their role was leading or critical in their organization. These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

Send us a copy of your CV/resume and we’ll see if we can help you with your own EB1 self sponsored green card.

Training Visa

October 20, 2016June 9, 2016 by Immigration Lawyer Peter Messersmith

There are three visa options for foreign nationals seeking employment training in the United States.

J1 Visa – Intern

Foreign nationals who are currently in school in a foreign country or who have graduated from a foreign school in the past 12 months can get a J1 visa for an internship. The internship cannot be in an unskilled or medical care field. A US employer can offer the internship and is required to pay significant fees to an approved J1 sponsor (an agency which performs a site visit where the internship will occur and issue paperwork used to obtain the J1 visa).

The US employer must provide entry level training, provide program evaluations, and provide continuous onsite supervision of the trainee. Interns must undergo multiple evaluations by the J1 sponsor to be eligible to continue with the program. The maximum duration of the J1 intern visa is 12 months.

J1 Visa – Trainee

Foreign nationals who have a college degree and one year of employment experience or no degree and five years of experience are eligible for a J1 visa for training. The training cannot be in an unskilled or medical field. A US employer can offer the training and is required to pay significant fees to an approved J1 sponsor (an agency which performs a site visit where the internship will occur and issue paperwork used to obtain the J1 visa).

The training visa cannot be used to fill a position that would ordinarily be filled by a part time of full time employee. Site visits must be conducted by the J1 sponsor prior to the issuance of the J1 visa and during the training program. The J1 sponsor will also ensure that the trainers are properly selected, the trainees are properly supervised, and will make periodic evaluations to ensure compliance. The training must be offered in a full time capacity defined as 32 hours/wk minimum and the maximum duration of the J1 trainee visa is 18 months.

H3 Visa – Trainee

Foreign national who wish to receive training in the US (with no education or work experience requirements) may do so with an H3 visa. The H3 visa requires a US employer to apply for the visa but there is no sponsoring agency as required by the J1 visa (and no sponsor fees or site visits).

The US employer may provide training in any area other than medical training and custodial care is allowed but must be incidental to the training program. The US employer must offer a structured training program with one or more qualified staff members to provide the training. This visa cannot be used to displace an American worker but employment incidental to the training is permissible (on the job training).

The training must be designed to benefit the foreign national in pursuing a career abroad and you must show that the training is not available in their home country. The training can be offered in a part time or full time capacity, the trainee can be paid for the training and the maximum duration of a H3 visa is 24 months.

J1 Waiver Fulbright Options

January 10, 2020June 1, 2016 by Immigration Lawyer Peter Messersmith

J1 Waiver Options for Applicants with Fulbright or other Foreign Government Funding

Usually it’s difficult to obtain a J1 waiver for a person with government funding. In fact, in many circumstances it is impossible. Many J1 Fulbright waiver applicants come to our office after already attempting to secure a no objection based waiver but failed. In 99% of cases, a no objection based waiver for Fulbrighters is impossible and a waste of time and energy. However, we have secured many no objection based waivers for applicants who received home country government funding. When handling J1 waivers for Fulbrighters, we generally recommend pursuing a waiver through the hardship, persecution, and interested government agency methods. The purpose of this post is to review some of the Fulbright and other government funding waiver applications that we have handled.

Hardship Waiver for Poland National with Fulbright Funding

Our firm assisted a Poland national who had a Polish husband and US Citizen child with a J1 hardship waiver. The applicant was a scientist and we were able to show that her research was in the national interest. We also argued that the applicant’s child would have poor access to proper medical care for a minor medical condition and that the applicant would not be able to support the child due to the weak economy and poor job opportunities in Poland. This case was approved.

No Objection Waiver for China National with funding from the Chinese Government (China Scholarship Council)

Our firm assisted a China national who entered with a J1 visa funded by the China Department of Education to work at a US University as a research scholar. Though she received significant Chinese government funding for her program, we were able to persuade China to issue a letter of no objection and her waiver was approved.

Persecution Waiver for Turkmenistan National with US Government Funding

Our firm assisted a Turkmenistan national who married an American. The applicant was a Muslim and her husband, a Christian. We were able to establish that the applicant would be subject to persecution in a country that is more than 90% Muslim. This case was approved.

Hardship Waiver for Morocco National with US Government Funding (USAID)

Our firm assisted a Morocco national who married an American man and they had three children together. We were able to establish that her husband would suffer career disruption and sever financial consequences and that the children’s lives would be in danger in Morocco due to Muslim extremists. This case was approved.

Hardship Waiver for Jamaica National with Fulbright Funding

Our firm assisted a Jamaica national with three American children. We successfully argued that the children would suffer mental and psychological harm and that the applicant’s scientific research was in the national interest. This case was approved.

Hardship Waiver for Ukraine National with US Government Funding (USIA)

Our firm assisted a Ukraine national who had one US child. We successfully argued that US child would not be able to integrate into Ukraine society after living in the US for a long period and being unfamiliar with local customs and unable to speak the language. The case was approved.

No Objection Waiver for China National with funding from the Chinese Government (Chinese Language Council International)

Our firm assisted a China national who entered with a J1 visa funded by the China Department of Education to work at a US University as a Chinese language Instructor. Though she received significant Chinese government funding for her program, we were able to persuade the China to issue a letter of no objection and her waiver was approved.

Hardship Waiver for Portugal National with Fulbright Funding

Our firm assisted a Portugal national who had a US citizen spouse. We argued that the American husband would severe emotional issues due to a possible separation and that his minor medical problems could not be treated in Portugal. The case was approved.

No Objection Waiver for Turkey National with funding from the US State Department

Our firm assisted a Turkey national who entered with a J1 visa through the US Department of State’s Student and Scholar Exchange Visitor Program. We were able to obtain a No Objection statement from Turkey and persuade the State Department to recommend a waiver. The case was approved.

No Objection Waiver for Japan National with funding from the Japanese Government

Our firm assisted a Japan national who entered with a J1 visa funded by the Japanese government to work at a US University as a research scholar. Though she received significant Japanese government funding for her program, we were able to persuade Japan to issue a letter of no objection and her waiver was approved.

If you entered the US with a J1 visa or changed your status to J1 and have US government funding or if your home country funded your program, we may be able to help you get a waiver. Contact our office to discuss your options.

I-601A Provisional Unlawful Presence Waiver

October 20, 2016February 3, 2013 by Immigration Lawyer Peter Messersmith

On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a final rule on provisional unlawful presence waivers. I-601A applications may be submitted to USCIS beginning March 4, 2013. This rule allows certain immediate relatives of U.S. citizens who are physically present in the United States to file provisional unlawful presence waivers prior to traveling abroad for consular processing of their immigrant visa applications.

Who is Eligible for an I-601A Waiver

You may be eligible for a provisional unlawful presence waiver if:
You are physically present in the United States;
You are at least 17 years of age at the time of filing;
You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

Who is NOT Eligible for an I-601A Waiver

You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
You do not meet one or more of the requirements listed above;
You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
You have been ordered removed, excluded, or deported from the United States;
You are subject to reinstatement of a prior removal order;
DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.

If Your I-601A is Denied USCIS is unlikely to initiate removal proceedings or refer provisional unlawful presence waiver applicants to ICE when USCIS approves or denies the waiver request or if the applicant withdraws his or her I-601A application.

Application Process

If you are in the United States and not in removal proceedings, an I-601A provisional waiver application can be made using Form I-601A. After filing, you will be required to submit to biometrics collection which includes fingerprints and photographing. After the i-601A is approved, you must depart the United States for an immigrant visa interview abroad.

Standard for I-601A Approval

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

DREAM Deferred Action Approvals Arriving

January 10, 2020October 22, 2012 by Immigration Lawyer Peter Messersmith

DREAM Act approvals are starting to trickle in. Here is a copy of a recent application which was approved in approximately 5 weeks. It is representative of a typical case. A Mexican national entered the US without a visa fifteen years ago when he was a child. He graduated from high school and was working in the US without authorization. During his 15 years in the US, he had some minor court issues but nothing rising to the level of a serious misdemeanor. Now, with his approved deferred action, he is safe from removal for at least two years and may be able to work legally in the United States. If you are in a similar situation, we can help you. Contact us at 305-515-0613, by email at info@messersmithlaw.com or visit our DREAM Act website for more information.

ApplyUSDreamAct.com Goes Live

August 26, 2012 by Immigration Lawyer Peter Messersmith

The Messersmith Law Firm is now taking US Dream Act cases via our online website ApplyUSDreamAct.com. If you meet the following eligibility requirements, we may be able to help you obtain deferred action and a two year work permit.

Was under the age of 31 as of June 15, 2012;
Came to the US before reaching his/her 16th birthday;
Has continuously resided in the US since June 15, 2007, up to the present time;
Was physically present in the US. on June 15, 2012, and at the time of application to USCIS;
Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the US Coast Guard or the US Armed Forces; and
Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety.

Which Visa is Faster: K1 Visa or K3 Visa

October 20, 2016August 25, 2012 by Immigration Lawyer Peter Messersmith

I am planning on marrying a girl from the philippines. I was wondering if its quicker her to get her here in America if I marry her here or if I marry here there in the philippines? Also what form do I need to fill out?

In our experience the K1 visa is quicker by a couple of months. Some of our K1 visas have been approved and issued in as little as 3 months whereas K3 visas typically take 6-9 months. Getting married does not make your case any stronger or more likely to be approved so there’s no real benefit to sponsoring her as your wife.

Change of Status from H2B Visa to H1B Visa

August 25, 2012 by Immigration Lawyer Peter Messersmith

I am curently in USA on h2b viza. My I-94 expires on May 31, 2010.

I would like to change my statul for H1B visa. I have Batchelor degree in economics and master degree in accounting. beside my job for my h2b employeer i am doing an internship as an accountant in one company. the owner of this company would like to help me to change my staus if this is possible. i would like to know if it is posible to change my status in my case. Thak you. Looking forward to hear from you. Best regards.

Your current employer would be able to sponsor your change of status from H2B to H1B provided that he offers you a position that requires the use of your degree(s) such as an accountant, budget/credit analyst, financial analyst, economist or other financial specialist.