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  In some cases, there are methods for getting the removal order rescinded and in others, a waiver may be a possibility.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  We helped her gather evidence to prove her innocence of CBP’s accusations and we were able to get the removal order rescinded so she could continue her business trips as done before.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.

Immigration Success Stories – INA 212(a)(6)(C)(i) & INA INA 212(a)(9)(b)

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Immigration Success Stories – INA 212(a)(6)(C)(i) & INA INA 212(a)(9)(b)

Our client was employed with US company A from 2017 through 2019 on H1B visa status.  US company B filed a new I-129 for new employment with their firm to begin in 2018.  USCIS approved the I-129 petition but denied the application for a change of status.  In their decision, the USCIS noted that our client could not establish that he was employed with US company A since the company had, unbeknownst to our client, withdrew the previously approved I-129 petition.  Our client then applied for his H1B visa stamp at the US Embassy which was refused pursuant to INA 212(a)(6)(C)(i) and INA 212(a)(9)(B).

INA 212(a)(6)(C)(i) relates to a false representation in order to obtain an immigration benefit.

INA 212(a)(9)(B) relates to unlawful presence in the US for more than 180 days.

Even though our client was never notified by US company A nor their attorney that they withdrew his I-129 petition, the US Embassy still accused him of misrepresentation of his prior H-1B visa status in the US and told him that because his petition had been withdrawn he has been out of status the entire time!  While the 212(a)(9)(b) charge carried a temporary bar, the 212(a)(6)(C)(i) charge is permanent.  We were able to present a strong defense on his behalf to both the US Department of State and the US Embassy which ultimately resulted in the removal of both charges from his record so he was able to obtain a new H-1B visa and reenter the country to work for US company B

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

214(b) Visa Rejection

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If a consular officer finds you are not eligible to receive a visa under U.S. law, your visa application will be denied, and you will be provided with a reason for the denial.  There are many reasons a visa applicant could be found ineligible for a visa.  A list of these ineligibilities can be found here.  Some ineligibilities are temporary and pass after a certain number of years and others are permanent.  If you are inadmissible to the US because of an ineligibility, we can help you with a waiver or help you overcome the ineligibility determination.  If you are refused a visa under section 214(b), it means that:

  • The consular officer did not believe that you qualify for the nonimmigrant visa category you applied for; and/or
  • The consular officer did not believe that you overcame the presumption of immigrant intent by sufficiently demonstrating that you have strong ties to your home country that will compel you to leave the United States at the end of your temporary stay. (H-1B and L visa applicants, along with their spouse and any minor children, are excluded from this requirement.)

Although a 214(b) isn’t a permanent ineligibility, there is no appeal process and it can significant impact your future visa applications.  Fortunately, there is a solution and we have helped many visa applicants overcome a prior 214(b) refusal through a new visa application.  This can be done by providing new application documents and being thoroughly prepared for your next visa interview.  Multiple 214(b) denials are very hard to fix so preparation is key.  If you want to give yourself the best chance of success, we are here to help and we have successfully helped thousands of people win their complicated immigration cases.

Immigration Success Stories – INA 212(a)(6)(e) & INA 212(a)(6)(c)(i)

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Our client, a Chinese citizen, entered the US along with her two minor children as tourists.  During their trip in the US, she enrolled them in school for approximately two months before they all returned to China.  They left before their period of authorized stay expired.  Later on when their visas expired, she returned to the US Embassy to renew her tourist visa and apply for student visas for her children.  However, she was refused  pursuant to section INA 212(a)(6)(E) and INA 212(a)(6)(c)(i) while her children were given a 214(b) refusal.

INA 212(a)(6)(E) relates to smuggling or helping someone obtain a visa or enter the US illegally or for a purpose inconsistent with the visa type obtained or applied for.

INA 212(a)(6)(c)(i) relates to making a fraudulent statement or producing fake documents in order to obtain a visa or procure entry to the United States.

The US Embassy accused our client of misrepresenting the purpose of her trip to the US when she applied for her visa and for violating immigration rules when she enrolled her kids in school when they were in B2 visa status.  These inadmissibility charges rendered it nearly impossible for her or her children to ever obtain visas again to enter the United States but we were able to present a strong defense on her behalf to both the US Department of State and the US Embassy which ultimately resulted in the removal of both charges from her record so she and her children became eligible for any type of US visa.  We then helped her secure a new tourist visa and two student visas for her children.

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

EB1 Extraordinary Ability Petitions for Engineers

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EB1 Extraordinary Ability Petitions for Engineers

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 Subsea Intervention Engineer, Project Engineer, Computer Engineer, Industrial Engineer, Chemical Engineer, Mechanical Engineer 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 engineers like Project Engineer, Computer Engineer, Industrial Engineer and other people in the engineering fields 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, we were able to help our clients to document performance evaluations, business proposals or project management to win judge criteria.   Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Engineers normally do not always have job titles that appear as if they are in leadership positions but, in fact, the actual roles and duties they perform can be shown to be leading or critical for entire divisions of major companies.  We were 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.

Divorce after Conditional Green Card

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Divorce after Conditional Green Card

When a foreigner marries a US citizen, the US citizen spouse can file to sponsor the foreign national for permanent residency (green card).  If the marriage is less than two years old at the time the applications are approved, the foreign spouse will receive a conditional green card which is valid for two years.  Three months prior to the expiration of that card, the couple must jointly file another application for a permanent card.  But what if the marriage didn’t survive?  If the marriage is over, there’s a good chance you will lose your green card but there are ways to file without your ex-spouse and we have helped many people successfully do so.  Here are two examples.

Case 1:

US citizen and foreign spouse loved each other and got married.  We obtained a conditional green card for the foreign spouse in about 4 months.  The US citizen was transferred to a different city to work but the foreign spouse had a good job in the city where they met so they decided to work in different cities but see each other as often as they could.  Even though they had a baby together, the distance apart took a toll on their marriage and they decided to divorce after a year and two months.  They separated on good terms and the US citizen asked us to help the foreign spouse obtain a permanent green card.  We worked with both of them and obtained a permanent green card for the foreign spouse in about 6 months.

Case 2:

Foreign spouse came to us for help and indicated that her US citizen spouse was unfaithful.  Since they both had a very difficult relationship, we worked with the foreign spouse alone and built a strong case to obtain a permanent green card for her.

Many people believe that it’s impossible to obtain a permanent green card after the divorce.  That isn’t the case.  We have successfully helped many foreign spouses obtain permanent green cards after divorce.  Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com