IR5 Interview

[Boiler 45,486]

8 minutes ago, Demise said:

Yeah I think so too. Still, the only way forward is to challenge the application of the bar cause can't do I-601 and it's a lifetime bar so it doesn't just expire on its own.

Simple example you enter on a tourist visa,    asked the purpose of your visit tourism 

 

You start working enroll your child in school.

 

Did you misrep the purpose of your visit?

Edited September 10, 2021 by Boiler

[SkolVikes 19]

11 minutes ago, Boiler said:

Simple example you enter on a tourist visa,    asked the purpose of your visit tourism 

 

You start working enroll your child in school.

 

Did you misrep the purpose of your visit?

My in laws stated they entered for tourism purposes....at the time my wife was in 4th grade... my in laws are stumped they didn't mislead or misrepresent...

[Boiler 45,486]

1 minute ago, SkolVikes said:

My in laws stated they entered for tourism purposes....at the time my wife was in 4th grade... my in laws are stumped they didn't mislead or misrepresent...

I do not think you understand the point and obviously I have no idea if this is relevant, but something changed.

 

I assume your In Laws did not ask what the misrepresentation was.

[arken 4,197]

it seems they are not eligible for the waiver through their USC daughter.
 

Who Qualifies for the I-601 [INA § 212(i)] Waiver?

To qualify for the I-601 waiver [§ 212(i) waiver] and be excused from the lifetime bar under section 212(a)(6)(C)(i), you must show you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S.

[NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

Edited September 10, 2021 by arken

[SkolVikes 19]

8 minutes ago, Boiler said:

I do not think you understand the point and obviously I have no idea if this is relevant, but something changed.

 

I assume your In Laws did not ask what the misrepresentation was.

Nope, the ban wasn't even explained to them! The consular officer pulled a fast one. 

[Sarah&Facundo 595]

Out of curiosity, you said they paid taxes. If they were on a B2 and overstayed, where did they get a SSN from to pay these taxes? Could this be the root of the misinterpretation....? 

[HRQX 4,145]

4 minutes ago, Sarah&Facundo said:

to pay these taxes?

https://www.irs.gov/individuals/individual-taxpayer-identification-number

What is an ITIN?

An Individual Taxpayer Identification Number (ITIN) is a tax processing number issued by the Internal Revenue Service. The IRS issues ITINs to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain, a Social Security number (SSN) from the Social Security Administration (SSA).

What is an ITIN used for?

IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security numbers. They are issued regardless of immigration status, because both resident and nonresident aliens may have a U.S. filing or reporting requirement under the Internal Revenue Code. ITINs do not serve any purpose other than federal tax reporting.

 

An ITIN does not:

• Authorize work in the U.S.
• Provide eligibility for Social Security benefits
• Qualify a dependent for Earned Income Tax Credit Purposes

Edited September 10, 2021 by HRQX

[SkolVikes 19]

I just read this on Laurel Scott's site..if someone works within 60 days of entering the USA they can get them with intent misrepresentation. This is so ticky tacky....

 

Misrepresentation
Misrepresentation occurs whenever a person intentionally presents false information in order to obtain an immigration benefit. While fraud is technically different from misrepresentation, the difference for inadmissibility purposes is moot as they are treated the same under INA §212(a)(6)(C)(i). Misrepresentation can be oral, written or implied. The third of these occurs when the person enters the country with an intention inconsistent with the status sought. For example, if the person enters with a visitor’s visa with the intent to violate the terms of the visa by working, there is an implied misrepresentation. The accusation of implied misrepresentation often occurs at the consulate when it is revealed that the applicant previously worked or went to school within sixty days of entering the country in visitor status, or when the person was previously turned away at the border or airport for attempting to enter as a nonimmigrant with immigrant intent, even when CBP made no such finding. Such findings are not always made by the consulates in these situations if CBP did not make the finding as it will be up to the consular officer to determine what the person’s intent was at the time. Misrepresentation does not make one inadmissible if it was not material. Misrepresentation is considered material if the official would have made a different decision if he/she had the true information, or if the false information had a tendency to cut off a line of inquiry relevant to the decision. A person who has presented false information can avoid committing misrepresentation if he/she makes a timely withdrawal, i.e. informs the official of the “error” or falsity before the official relies on the information to make a decision, before the benefit is accorded, or before the official confronts the person about the falsity of the information, whichever comes first. Because of the intent requirement, young children will not be found to have committed misrepresentation. Government officials have orally stated at attorney conferences that if the information was presented when the person was between the ages of 14 and 17, the official reviewing the case will determine whether the decision to present the false information was the child’s decision, though I have been unable to locate this policy in writing. Misrepresentation is a lifetime bar with a waiver available. The waiver applicant must have a qualifying relative, who is the applicant’s US citizen or permanent resident spouse or parent.

[Boiler 45,486]

Laurel would be an excellent person to consult with.

[HRQX 4,145]

18 minutes ago, SkolVikes said:

if someone works within 60 days of entering the USA

In 2017, DOS changed it to 90 days: https://fam.state.gov/fam/09FAM/09FAM030209.html

Inconsistent Conduct Within 90 Days of Admission to the United States:

(a)  If an alien engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her true intentions in seeking a visa or admission to the United States).  You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe he is ineligible 6C1.

(b)  Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:

(i)     Engaging in unauthorized employment on B1/B2 nonimmigrant status. (Note: Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's employment activities when make a 6C1 finding under the 90-day rule);

(ii)    Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);

(iii)    A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States. (Note: to establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, post may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or

(iv)   Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment.  (Note: Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90 day rule; the alien must also engage in conduct inconsistent with authorized status without the benefit of such a change of status. Moreover, if an alien engages in the activities for which he/she was admitted, such as to study on a F1 visa, but also engages in unauthorized work without seeking an employment authorization document (EAD), then that is insufficient to justify a presumption of a misrepresentation.)

 

(c) In cases where you are unsure whether a particular activity is inconsistent with nonimmigrant status or whether a violation occurred, you may request an AO from L/CA. 

(d) A consular manager must review all 6C1 findings of ineligibility under the 90 day rule.

Edited September 11, 2021 by HRQX

[SkolVikes 19]

That's brutal 90 days....but I get it. I'm not sure it's fair for someone to be liable under the 90 day rule if they entered on the old 60 day rule. Regardless I think my father in law was working inside the 60 day mark. I'll verify this tomorrow.

Edited September 11, 2021 by SkolVikes

[HRQX 4,145]

5 minutes ago, SkolVikes said:

Regardless I think my father in law was working inside the 60 day mark. I'll verify this tomorrow.

Also clarify about your mother-in-law. Because as mentioned before, if one of them gets the IR-5 and enters the US then the other will then have a Qualifying Relative:

12 hours ago, Demise said:

if only one was slapped with it then oh well, get one their green card and use them as the qualifying relative for I-601 for the other.

[SkolVikes 19]

28 minutes ago, Boiler said:

Laurel would be an excellent person to consult with.

I know she's been around a while and has clout. But she's costly last I checked. Value has worth though.

1 minute ago, HRQX said:

Also clarify about your mother-in-law. Because as mentioned before, if one of them gets the IR-5 and enters the US then the other will then have a Qualifying Relative:

Excellent point. I'll keep you posted. Appreciate the help!

[SkolVikes 19]

Below is the message from RIO

 

 

Dear *******

 
 

Both applicants were found  found ineligible for a visa under the 90-day rule for making a misrepresentation that was willful, material, and for an immigration benefit, as defined by INA 212(a)(6)(C)(i). See 9 FAM 302.9-4. The applicant willfully and knowingly misrepresented themselves to a U.S. official and the misrepresentation was material:  

 

(1) The applicant arrived in the US on a B1B2 visa 

(2) The applicant stated that his or her intent was to visit the United States 

(3) Within one month of arrival, the applicant started working which is not permitted on a B1/B2 visa.  

 

The Applicant misrepresented themselves to CBP to secure a U.S. immigration benefit, namely admission to the U.S. Applicant could not rebut the presumption of misrepresentation. 

 
 

There is no waiver for IR5 applicants, unless if the applicant is the spouse of an American citizen or Legal permanent resident.  

 
 

Best Regards, 

[Boiler 45,486]

Presumably the one month thing is correct.

 

The last sentence is not quite correct but not relevant it seems for this issue.

Edited September 14, 2021 by Boiler