Immigration Success Stories – INA 212(a)(3)(A)

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Immigration Success Stories – INA 212(a)(3)(A)

When a foreign national tries to enter the US, CBP can deny the entry if CBP believes the foreign national has or will engage in any activity relating to espionage, sabotage or illegally exporting US goods, technology, or sensitive information, or any other unlawful activity related to control or overthrow of the US. This generally results in a lifetime ban from ever returning to the US.  Let’s highlight two recent successful cases where we were able to remove these charges from our client’s records.

  1. We had a Chinese client who earned a PhD in Mechanical and Aerospace Engineering from a US school. After graduation, he worked for a Canadian company that had a branch office in the US. His company sponsored him for an L1 visa but when we attended his interview at the Consulate, he was refused pursuant to INA 212(a)(3)(A). The Consulate did not provide any details or justification for the refusal. They simply provided a refusal worksheet that listed INA 212(a)(3)(A). He came to us for our help after the refusal and we were able to work with both the Consulate and the State Department to show that simply being from China and having a mechanical engineering or aerospace engineering degree was not sufficient to support a 212(a)(3)(A) refusal. They agreed and removed the charge from his record and we were able to secure his L1 visa and entry to the US without further issue.
  2. In another instance, we had a client from Iran who had obtained Canadian citizenship run into similar problems. He was able to enter the US as a tourist to attend a job interview with a US University but after the offered him the position and sponsored his H1B, he was refused pursuant to INA 212(a)(3)(A).  This time, the degree was not the issue, it was his mandatory military service in Iran. However, this client never did the military service because he was able to delay service due to school or other reasons and eventually left for Canada. We were able to work with relevant US agencies to prove that he never served in the Iranian military and he was able to secure his H1B visa! 

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

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

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

When a foreign national tries to enter the U.S., CBP can deny the entry if CBP believes the foreign national engaged in prostitution within the last 10 years or because they desire to enter the US to engage in prostitution. This generally results in a 10 year ban but CBP can apply additional penalties as they deem applicable.  Let’s highlight two recent successful cases where we were able to remove these charges from our client’s records.

  1. A client from the UK was travelling to the US on the ESTA program but was stopped by CBP at the airport. He was questioned about some online materials that he made on one of his social media accounts and his phone was confiscated and scanned. CBP found some emails that they felt were questionable and our client decided the best thing to do was to remain silent. As a result, his entry was refused and he was deemed inadmissible pursuant to section INA 212(a)(2)(D)(i).  Fortunately, because the emails were ambiguous and they had no other strong evidence to support their finding of inadmissibility, we were able to get the decision reviewed and reversed in less than 4 months.
  2. Another client, a massage therapist, appeared for her immigrant visa interview and was questioned about her past work as a massage therapist in Taiwan. Although she never worked as a prostitute, the Consular officer told her that the massage parlour where she worked had a bad reputation. She became very nervous and after a series of questions, she was informed that her visa was refused and that she was inadmissible due to section INA 212(a)(2)(D)(i) and 212(a)(6)(c)(i).  This was a very difficult case as it is hard to prove that she was honest and did not engage in prostitution.  After some investigation, we learned that one of her previous coworkers held a vendetta against our client. She had contacted the Consulate prior to our client’s visa application and lied that our client was engaging in prostitution at the massage parlour. We were able to clear her name but it took more than 13 months to resolve the case. Ultimately, she was able to obtain her visa and she is now in the United States.

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

Immigration Success Stories – INA 212(a)(7)(A)(i)(I) and INA 212(a)(7)(A)(i)(II)

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Immigration Success Stories – INA 212(a)(7)(A)(i)(I) and INA 212(a)(7)(A)(i)(II)

When a foreign national tries to enter the U.S., CBP can deny the entry if CBP believes the foreign national intends to remain in the US permanently but does not have a dual intent nonimmigrant visa nor an immigrant visa. CBP can either allow the foreign national to withdraw the application or order expedited removal which carries a five year ban.  CBP can apply additional penalties as they deem applicable.  Let’s highlight two recent successful cases where we were able to remove these charges from our client’s records.

  1. In February 2023, our client from India informed us that he was previously refused entry to the US under INA 212(a)(7)(A)(i)(I), removed pursuant to 235(b)(1), and was also charged with fraud under INA 212(a)(6)(C)(i).  He told us that this happened more than 10 years prior and that some other lawyers said that nothing could be done to fix it.  Apparently, back in 2012, he and his wife tried to enter the US as tourists but in different traveling parties and CBP thought they were trying to hide the fact that they were together to increase their chances to enter the US successfully.

    We filed our client’s appeal in April of 2023 and heard back just two months later that we had won the case.  The five year ban from the removal had expired on its own since it had been so long since the incident but we were able to get the fraud charge cleared and since our client had immigrated to Canada several years prior, he was able to enter the US without applying for a visa and the INA 212(a)(7)(A)(i)(I) determination was no longer an issue.
  2. Another client came to us in March 2023 and told us that because she previously attended Silicon Valley University, CBP refused to allow her entry to the US as an H1B holder.  CBP cancelled her H1B visa, refused her entry pursuant to INA 212(a)(7)(A)(i)(I). CBP used their authority under INA 235(b)(1) to perform an expedited removal and barred her from returning to the US for 5 years.  After spending a significant amount of time to build a strong case, we were able to file her appeal in May of 2023. We heard back in July 2023 that we won her case and she was instructed to apply for a new H1B visa.  We assisted her with her visa interview, got her visa approved, and she was able to reenter the United States to reunite with her family.

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

Proclamation 10043

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Proclamation 10043 – Suspension of Entry as Nonimmigrants of Certain Students and Researchers From the People’s Republic of China

The entry into the United States as a nonimmigrant of any national of the PRC seeking to enter the United States pursuant to an F or J visa to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy” is hereby suspended.

Some applicants were refused visa or entry pursuant to Proclamation 10043 were also found to be inadmissible pursuant to INA 212(a)(6)(c)(i) Misrepresentation  or INA 212(a)(1)(a)(iii) Physical or Mental Disorder.

INA 212(a)(6)(c)(i) Misrepresentation

This provision of the Immigration and Nationality Act (INA) prohibits the admission of any alien who has misrepresented a material fact in order to obtain a visa or other immigration benefit. This includes individuals who have lied about their educational or employment history, their ties to the PRC, or their involvement in military-civil fusion activities.

INA 212(a)(1)(a)(iii) Physical or Mental Disorder

This provision of the INA prohibits the admission of any alien who is mentally or physically unable to care for themselves or who is likely to become a public charge. This includes individuals who have a history of mental illness, a physical disability that would prevent them from working, or a chronic medical condition that would require extensive medical care.

Resolutions to Refusals Due to Proclamation 10043

If you have been deemed inadmissible due to Proclamation 10043, we can help you challenge that determination and request that it be removed from your record. We have successfully helped many innocent people win their cases. We can help you.  Please feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com.

What is a Student Visa Abuser? Understanding INA 212(a)(6)(G).

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What is a student visa abuser?

A student visa abuser is a person who obtains a student visa to enter a country, but then does not use it for its intended purpose of studying. Instead, they may work illegally, not attend classes, or engage in other activities that violate the terms of their visa.  A 212(a)(6)(G) charge comes with a five year ban from entering the United States.

What happens if you violate student visa?

If you violate the terms of your student visa, there are a number of potential consequences that may result. Some of the most common include:

  1. Revocation of visa: The U.S. Citizenship and Immigration Services (USCIS) has the authority to revoke your student visa if they determine that you have violated its terms. This can result in you being required to leave the country immediately.
  2. Ineligibility for future visas: If your student visa is revoked, you may be deemed ineligible for future immigration benefits, including future student visas.
  3. Deportation: If you are found to have violated the terms of your student visa, you may be subject to deportation proceedings.
  4. Barred from reentry: A violation of student visa can lead to a bar on reentry to the country, which can make it difficult or impossible for you to return to the United States in the future.
  5. Criminal charges: In some cases, violating the terms of your student visa may be considered a criminal offense, which could result in fines, imprisonment or both.
  6. Academic penalties: Your school or university may also take action against you if you are found to be in violation of your student visa. This could include being expelled from the school or losing your scholarship.

Can F-1 students be deported?

Yes, F-1 students can be deported if they violate the terms of their visa or if they engage in certain criminal activities. Examples of such violations can include failing to maintain a full course of study, working without proper authorization, or committing a crime. If an F-1 student is facing deportation, they may be able to contest the decision through a process called “removal proceedings.”

Is there a waiver available for INA 212(a)(6)(G)?

Yes, the standard 212(d)(3) waiver is available but in situations where you feel that you did you violate the term of your F1 visa and you should not have been accused of being a student visa abuser, there is a path to challenge the 212(a)(6)(G) determination to get it removed from your record.

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.

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.