Month: September 2023

Immigration Court Ruling

US Visa Ineligibility Findings and Waiver Option

US Immigration Advisor

Often times, foreign nationals are denied a visa or entry into the United States based on certain grounds. Such individuals who are found inadmissible and need a non-immigrant visa to enter the U.S. can apply for a waiver application at a U.S. consulate. The Immigration and Nationality Act (Section 212 (d)(3)) provides for a waiver (or pardon) for certain inadmissibility findings. The “212 (d) (3) waiver” can be used to overcome most grounds of ineligibility. One such very common ground is that of willful misrepresentation or fraud, the consequences of which are dire as it triggers a permanent or lifetime bar to entering the U.S However, all is not lost and this ground like many others can be challenged and overcome through a 212 (d) (3) waiver.

The INA 212 (d) (3) waiver, dubbed as the “Hranka Waiver,” although discretionary, can waive most grounds of inadmissibility, including willful misrepresentation or fraud, crimes involving moral turpitude, prostitution, smuggling, bars resulting from unlawful presence in the United States, health related grounds and a few others. There are certain grounds of inadmissibility that are excluded, such as espionage, participation in Nazi persecution and genocide. The waiver is available to NIV visa applicants, i.e., B-1, L-1, F-1, J-1, O-1, etc. visas and not to immigrant visa applicants.

The U.S. Department of State and consular officers are tasked with the discretionary authority of recommending these waivers for non-immigrant (NIV) visa ineligibilities to the Department of Homeland Security for approval.

Waiver Assessment Criteria

There are no prescribed criteria but the adjudicating officer will weigh the following factors in recommending a 212 (d)(3) waiver:

  1. Risk of harm to society if the foreign national is admitted;
  2. Seriousness of the foreign national’s immigration or criminal law violation;
  3. Foreign national’s purpose of travel to the United States;
  4. Whether there is a single, isolated incident or a pattern of misconduct; and
  5. Evidence of reformation or rehabilitation.

Application Procedure

The 212(d)(3) waiver application can be submitted to the U.S. consulate in the applicant’s home country (or country of residence) or in case of visa-exempt foreign nationals, at the U.S. port of entry (with Customs and Border Protection). Generally, one can submit the waiver application at the consulate at the same time that the person is applying for a non-immigrant visa; some consulates may require the waiver filing at a later time. If consular officers believe that the waiver should be granted, they are required to forward the case to the Customs and Border Protection’s Admissibility Review Office (ARO) with an affirmative recommendation. The consular officer is not obligated to accept the waiver application if he or she believes that the waiver has no merit and is required to reject it if the applicant is otherwise found ineligible for the underlying visa. However, consular officers are directed to refer the waiver request to the Department of State for review if the applicant requests, provided that the applicant’s case involves certain situation/s such as national security, foreign relations, significant public interest and/or urgent humanitarian or medical reason. The ARO’s decision is final pursuant to which the consular officer will adjudicate the underlying non-immigrant visa application.

The ARO/CBP generally grant a waiver in most visa cases for 5 years. The waiver processing can be lengthy at times ranging from few weeks to several months but is an inexpensive and relatively straightforward option to overcome certain ineligibility findings.

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Visa Application

Protecting U.S Citizenship: Can it be Revoked?

US Immigration Advisor

A naturalized United States citizen is someone who has voluntarily obtained U.S. citizenship based on certain grounds other than by birth in the U.S. The process by which they obtain U.S. citizenship is called naturalization. The U.S. citizenship of such individuals can be stripped away or revoked through what is known as the “denaturalization” process. U.S. citizenship of a person who is born on US soil cannot generally be revoked, but such a person can lose citizenship by engaging in certain explicit voluntary acts.

The U.S. government can rescind a naturalized person’s citizenship for a variety of reasons which are:

“Illegally” procuring citizenship

Procuring naturalization illegally simply means that the person was not eligible for naturalization, therefore any eligibility criterion that was not fulfilled can form the basis for revocation. This includes the requirements for residence, physical presence, lawful admission for permanent residence, good moral character, and attachment to the U.S. Constitution. This applies even if the person unintentionally made a mistake.

Non-Disclosure of Material Fact or Willful Misrepresentation

If a naturalized person misrepresented or hid a material fact deliberately which fact impacted his naturalization application, the citizenship in such cases may be revoked. This ground of revocation includes omissions as well as affirmative misrepresentations. Examples of such instances include failure to disclose an arrest or criminal conviction or lying about one’s marital status.

The misrepresentations can be oral testimony provided during the naturalization interview or can include details provided on the N-400. The materiality test is whether the misrepresentations or concealment had the ability to affect the grant of citizenship decision.

In 2017, the U.S. Supreme Court in the case, Maslenjak v. United States, 37 S. Ct. 1918 (2017), limited the grounds for revoking citizenship by holding that unless the underlying omission or false statement was significant to the acquisition of citizenship, citizenship cannot be revoked for a false statement that has no bearing on the decision.

Membership or Affiliation with Certain Organizations

A person is subject to revocation of naturalization if he or she becomes a member of, or affiliated with, the Communist party, other totalitarian party, or terrorist organization within five years of naturalization. There is an assumption that the person dd not have allegiance to the U.S. Constitution and was never well-disposed to the wellbeing of the United States.

Separation from the Military

Some people can obtain U.S. citizenship by serving honorably in the U.S. armed forces. The government can revoke citizenship obtained on this basis if the naturalized person separates from the armed forces under other than honorable discharge before serving five years of military service.

The Denaturalization Process

Unlike most other immigration matters that USCIS handles in an administrative setting, revocation of naturalization can only occur in federal court. A person’s naturalization can be revoked either by civil proceeding or pursuant to a criminal conviction. For civil revocation, the U.S. Attorney’s Office must file the revocation of naturalization actions in a Federal District Court. For criminal revocation of naturalization, the office files criminal charges in Federal District Court. The government holds a high burden of proof when attempting to revoke a person’s naturalization. For civil revocation, the burden of proof is clear, convincing, and unequivocal evidence and for criminal revocation, it’s proof beyond a reasonable doubt, as required in every other criminal case.

Source: USCIS Policy Manual I Grounds for Revocation of Naturalization

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

E-2 Visa approved for a Singaporean national during COVID-19

Guidance on Compelling Circumstances EADs

US Immigration Advisor

In June 2023, the U.S. Citizenship and Immigration Services (USCIS) released an updated guidance on the employment authorization document (EAD) based on compelling circumstances for beneficiaries of an approved I-140 petition. The guidance clarifies the eligibility criteria for a compelling circumstances EAD.

A compelling circumstances EAD is a stopgap measure for non-immigrant visa holders, in the process of applying for their green cards, who have been lawfully residing in the US and are faced with unforeseen or sudden circumstances that would cause them to immediately depart the United States. The compelling circumstances EAD provision which came into effect in January 2017, provides a temporary benefit for eligible foreign nationals and their family members to continue to reside and work in the United States without interruption and accruing unlawful presence.

For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:

  • The principal applicant must be the beneficiary of an approved Form I-140 in either EB-1, EB -2 or EB-3 category;
  • The principal applicant must be in a valid non-immigrant status (E-3, H-1B, H-1B1, O-1, or L-1) or authorized grace period
  • The principal applicant must not have filed a I-485 adjustment of status application;
  • The applicant and their dependents have not been convicted of a felony or two or more misdemeanors ; and
  • An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765; and

Examples of Compelling Circumstances

The regulations do not define “compelling circumstances”, but in general, are situations outside one’s control that adversely affect their ability to continue working for their employer. USCIS exercises discretion on a case-by-case basis in assessing. Below are non -exhaustive examples that could justify the existence of compelling circumstances.

Serious Illness and Disability

A principal applicant or their dependent faces a serious illness or disability that substantially changes employment circumstances, such as requiring them to move to a different geographic area for their or a dependent’s treatment, or the illness or disability otherwise reduces or adversely affects the principal applicant’s ability to continue their previously approved employment.

Employer Dispute or Retaliation

A principal applicant is involved in a dispute regarding their employer’s alleged illegal or other forms of abusive conduct, which may take the form of a whistleblower action, litigation, or other documented dispute.

Other Substantial Harm to the Applicant

The principal applicant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and would suffer substantial harm as a result. This harm may be financial or may be due to an inability to return to their home country due to conditions there.

Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss, for example, loss of health insurance.

Significant Disruption to the Employer

If the applicant is unable to continue working due to failure of filing a timely extension of change of status, and as a result, the employer will suffer significant disruption of business or that the loss of the employee will negatively impact project and cause significant monetary loss, such situation could establish compelling circumstances.

USCIS generally does not consider unemployment or job loss, in and of itself, to be a compelling circumstance unless the principal applicant can show additional circumstances that compound the hardship ordinarily associated with job loss.

Impact on Non-Immigrant Status

While a discretionary relief, the compelling circumstances EAD is an alternative that allows one to continue to stay and work in the United States in an authorized period of stay. Note that this is not a substitute for a “non-immigrant” status. An applicant would not accrue unlawful presence during the EAD’s validity or during the pendency of a timely filed non-frivolous EAD application. Spouses and children of the principal EAD applicant may also receive EADs provided that they individually meet the compelling circumstances and filing requirements.

Resource: Chapter 3 – Certain Employment-Based Immigrants in Compelling Circumstances | USCIS

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.