NOIR issued after 16 months with misrepresentation charges

[yasinpuertas 1]

Hello everybody,

 

Well, after 16 months waiting on an answer from the USCIS, that was reviewing my case after the CO in Madrid returned it to the US, my petitioner finally got it in the mail.

 

Needless is to say that, thanks to my petitioner, I am aware of the situation. And boy, is this an important thing to have. See, for the FIRST time in this LONG process, the USCIS has the intention to revoke my case based on Misrepresentation of a factual fact related to qualifying work experience in the Labor Certification. 

 

Long story short, when I met the CO back in may 2016, I couldn't demonstrate that I worked for the employer that wrote me an employment letter back in 2005, in which it was stated that I worked for his organization from 2000 to 2005, 40 hours a week. The only proof he would accept are pay stubs or a contract officially registered with the Social Security Administration in Spain, both documents are impossible to obtain since the job I did for the organization was not paid (it is a non-profit organization with limited capability to hire) so it was voluntary work. Basically, I worked for the organization to gain experience, and for that I considered myself sufficiently paid at the time.

 

Now, of course, I had to work on another job to get a decent salary to support myself. But even then, I could prove that my "oficial" job was teaching exactly what I was doing as a voluntary job for the organization afore mentioned.

 

After several calls from the CO, not only to me, but to my direct supervisor at the time, the actual head of HR of the organization (with letters provided in letterhead and including the seal of the organization), and other members of the organization, the CO concluded that he had doubts regarding my ability to work two full time jobs at the same time. I overcame this issue (or that is what I thought) by demonstrating that only between February 2001 and august 2003 I was indeed working as a full time teacher, while the rest of the time, I was working part time, as a journalist and later as a teacher. More to say, I presented the CO with two documents, one of them being the Education Law in Spain, that states that a teacher has to work a maximum of 15 hours a week on a full time contract, and the other, an actual schedule from the School of Arts I worked with as a full time teacher, with the principal's signature and the seal of the school, stating that I did just work such 15 hours a week. This documents should've sufficed to make it clear that, not only I worked on the capacity and terms stated in the letters from the organization, but it was also possible to do so, under the light of such evidence. 

 

Now, without further notice or concerns from the CO, my case was sent for review and revocation, to the USCIS, on the grounds of "not being able to establish the required experience", which in my world doesn't mean that I "lied intentionally" (willful misrepresentation) but merely "not being able to prove to the CO's satisfaction", which is somewhat subjective and discretional, but still within his power of course. 

 

After 16 months the USCIS responds with a NOIR, but, in this case, throws in the mix the "misrepresentation of a material fact" accusation. I'm in the process to refute this accusation with further proof, but I'm really concern about this facts;

 

1.- The USCIS doesn't include in the NOIR key evidence sent to the CO regarding his "doubts", like the schedule and the piece of Education Law that refutes with hard evidence, his claim that a Spanish Citizen cannot work two full time jobs at the same time. Nor the fact that I was not working as a full time teacher during the whole period of time I claim to be working full time for the qualifying job, neither that the teaching position I held, also qualifies as experience on the field (although not exactly the same duties, but teaching them to others at post-secondary education level). 

 

2.- I am currently in the US with an H1B visa obtain through another employer and recently applied for a renewal. I don't know if, the NOIR cannot be rebutted, not only will my Labor be revoked, but I will be either denied my H1B visa renewal or be removed from the US, or not let through the border in case I leave the country for a vacation period. I understand misrepresentation of a material fact can have serious consequences for life, so I am extremely anxious right now, as my future depends on my ability to demonstrate that, even though it was not a "regular" job, I did not lie about it, and there is hard objective and independent evidence to prove that.

 

So if somebody can shed light about what are the possible consequences of this NOIR, they would be greatly appreciated.

[Hypnos 6,576]

I don't think this is a simple fix. 

 

In your position I would seek the assistance of an experienced immigration attorney. 

[yasinpuertas 1]

2 hours ago, Hypnos said:

I don't think this is a simple fix. 

 

In your position I would seek the assistance of an experienced immigration attorney. 

Well, I have already an attorney. My main concern now is how will this affect my current H1B renewal petition that is being processed now. It can take up to three months to be resolved and I really don't know if they can deny it based on the findings of the USCIS. I know that it is a NOIR and I still have a chance to demonstrate that the letter is real and the experience existed (I do have plenty of hard evidence, although no pay stubs or registered contract) and the evidence of the contrary is circumstantial at best, but still I fear the possibility that USCIS would keep insisting on the misrepresentation charges, as absurd they can be. I keep googling and I couldn't find a timeframe of events following this charges and if they would affect an ongoing renewal process at this early stage of the process. I guess I have time to challenge the findings, then if they are not sufficient they will issue a NOID and I can still appeal their decision, so it may be a long process before the charges can be "final", but in the meantime, would I receive my renewal? would I be able to get a stamp at a consulate after that? would I be able to re enter the US if I leave the country for a vacation period?... this is killing me! 

[Hypnos 6,576]

Those would be great questions to ask the immigration attorney that you already have. 

[Coco8 1,039]

I agree with the attorney. If the attorney is not good, get a new one. Misrepresentation usually comes with a 10 year ban to the US, meaning you could not get into the US for 10 years and you would be lucky if they allow you back as a tourist in after 10 years (I doubt you would be able to get another H1B).

Edited November 24, 2017 by Coco8

[CEE53147 559]

On 11/23/2017 at 2:33 PM, yasinpuertas said:

Hello everybody,

 

Well, after 16 months waiting on an answer from the USCIS, that was reviewing my case after the CO in Madrid returned it to the US, my petitioner finally got it in the mail.

 

Needless is to say that, thanks to my petitioner, I am aware of the situation. And boy, is this an important thing to have. See, for the FIRST time in this LONG process, the USCIS has the intention to revoke my case based on Misrepresentation of a factual fact related to qualifying work experience in the Labor Certification. 

 

Long story short, when I met the CO back in may 2016, I couldn't demonstrate that I worked for the employer that wrote me an employment letter back in 2005, in which it was stated that I worked for his organization from 2000 to 2005, 40 hours a week. The only proof he would accept are pay stubs or a contract officially registered with the Social Security Administration in Spain, both documents are impossible to obtain since the job I did for the organization was not paid (it is a non-profit organization with limited capability to hire) so it was voluntary work. Basically, I worked for the organization to gain experience, and for that I considered myself sufficiently paid at the time.

 

It is hard to believe you worked this length of time without pay.

[yasinpuertas 1]

1 hour ago, CEE53147 said:

It is hard to believe you worked this length of time without pay.

It was voluntary work for a political party that fights for the rights of the poor in my region. I was a professor of Media at the time, so I had a salary anyways. This voluntary work I did was as a Chief of Press for the party, so it was pretty public (no way to hide it from the public as I appeared in the media as the spokesperson for the party). Most of the people I know in the party have been working for it even longer than me.

[Boiler 43,429]

you have not mentioned your Lawyer's thoughts, there are of course no Lawyers on here.

[yasinpuertas 1]

3 minutes ago, Boiler said:

you have not mentioned your Lawyer's thoughts, there are of course no Lawyers on here.

My lawyer says that it is unbelievable that they are basing the refusal (and misrepresentation, which is much more serious) on a simple "hard to believe" against hard, objective and independent evidence provided such as two employment letters, me being in the media and mentioned as "spokesperson" for the organization on it, my field of expertise and academic background, the fact that I already did this very same job for the petitioner before under H1B (because the basis for the refusal is not having qualifying experience for the job)... Unless voluntary unpaid work (only gratuity was provided to cover expenses) is not considered "qualifying job" (and last time I checked, the CFR does not mention salary as a requirement to consider work experience) my lawyer and I think we have a pretty solid case.

[Boiler 43,429]

Let us know how it goes.