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Visa App refused 212(a)(6)(c)(1)

#1 beton99

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Posted 29 September 2009 - 09:57 AM

Dear Forum members,
Iím a Hungarian architect. I have an approved I-797 application for a H-1B visa (2009), but when I applied for the visa at the Embassy, they denied my visa application on grounds of 212(a)(6)( C )(1).
In 2003, I had an incident at the border, when my student visa was canceled. In 2001-2002 I spent three semesters at a US university on an athletic scholarship. After that I went back to Hungary to continue my studies (which I started in 97), with keeping the possibility that I can go back to the US (my visa was valid until 2006 and the I-20 signed). At the end of March 2003 when I wanted to go back to the States the immigration officer refused my admission to the States, saying that I didnít have any classes registered at my US university. That was true, although Iíve never had any classes registered before any of my trips either (in 2001 or 2002). My F1 visa was canceled. From the information I gathered it seems officially I withdrew my application to the US. When I asked how I could come back, the immigration officer informed me that I just have to re-apply for a new visa. He didn't mention a ban and I didn't get any paperwork.
Half a year passed, I finished one more semester at my Hungarian university, and it became clear that an M.Sc. from there would be faster to achieve than a Masters in the US. For the M.Sc. in Hungary, you are required to do an internship, it can be anywhere. I got an offer from a US firm to do it there and I saw it as a great opportunity, because I could see the possibility to work there after I graduate.
I applied for a J visa in August, 2003 (to do a one year internship from September), but I didn't get the visa, according to the visa refusal worksheet I didn't have enough family and economic ties to my country, INA Section 214(b). The interview was all about the incident 6 months earlier, the officer told me my situation is not clear for him, whether I want to study at home, in the US, or work in the US. He told me I should first graduate, get a degree, so my situation is simpler. He didn't mention a ban.
Now it is 6 years later, I'm 30, and I graduated 4 years ago with a Masters in Architecture. I've got a job opportunity in the US (the same place as before), they were willing to go through the H-1B process. My I-797 was approved, and I scheduled the visa interview. This time the consul told me that I have a hit on my name by the Dept. of Homeland Security, because of the 2003 incident and I'm banned for life. He said, that he didn't understand how the I-797 was approved, since it is responsibility of the Dept. of Homeland Security as well. My visa refusal worksheet lists Section 212(a)(6)( C )(1) as a reason.
The consul informed me that I need a waiver before a visa could be issued. He didn't know how I could get that waiver, he suggested that I should write a letter to the Dept. of Homeland Security.
My questions is, whether the I-601 waiver applies here? If yes, what should I write at question #10 for example? It seems to me I-601 is used at medical conditions or situation where there are family ties in the US.
How can my status mysteriously change from 214(b) to 212(a)(6)( C )(1)?

I was always been a great student-athlete, and always stayed out of trouble. But one unintentional mistake seems to affect my entire life. Do you have any suggestions for me?
I appreciate any advice in advance,
Thank you,
Gabor

Edited by beton99, 29 September 2009 - 09:59 AM.

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#2 JimVaPhuong

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Posted 29 September 2009 - 10:34 AM

212(a)(6)(C )(1) refers to immigration fraud.

In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Although your F1 visa hadn't expired, it was probably invalid because you didn't maintain your status as a student. It had probably been more than 12 months since your I-20 had been signed, and you had been away from school in the US for more than 5 months. You probably needed a new I-20 and a new visa to re-enter the US. Apparently, they are viewing your attempted entry with that visa as "willful misrepresentation" on your part. That carries a lifetime ban.

The I-601 is used when an alien has been deemed to be inadmissible. Yes, there are specific portions of the form for medical inadmissibility, such as tuberculosis.

The law is very convoluted, and it's not clear to me whether your particular inadmissibility is waiver qualified. The company that is sponsoring you probably has an immigration attorney, either on staff or on retainer. I would ask the company to get their attorney involved and see if he can prepare a request for a waiver on your behalf. If the inadmissibility is not waiver qualified, then the attorney should seek to appeal the finding, since your "misrepresentation" was clearly not "willful". You simply didn't understand the restrictions on your visa. Don't try to deal with this on your own. Your sponsor has an attorney - let him do his job.
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#3 beton99

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Posted 29 September 2009 - 11:33 AM

Thanks for your help and quick reply.
My I-20 was signed less than 12 month before, but you are right, I spent more than 5 abroad. I didn't know these rules though.
I will follow your suggestions. Thanks.
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#4 emt103c

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Posted 30 September 2009 - 04:06 PM

This happens a lot. The consulate add the Misrep charge to a denial of entry at the border. As previously advised, try working with the company's attorney. As a rule, once the visa is denied, you lose your chance for the H1B because it is fairly competitive and the company's won't always spend the time to try to help you work out the issue. If this turns out to be the case this time, you will still need a waiver any time you want to visit or attempt to get a visa for the US. The 601 is only for immigrant visas though, so what you need is actually a non-immigrant visa, I-192. Dan Green is supposed to be good with this type of waiver.

http://www.hudsonval...grationlaw.com/
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