Refusal due to section 212(a)5

[SalishSea 16,826]

Just now, Nockideetah said:

Is that the same as legalnet or where would I contact them? Thanks for being so helpful btw.

The AAO is part of USCIS.   When your petition is sent back to the USCIS, you can prepare an appeal of the decision.  One word of advice - many who are successful in doing this have help from experienced immigration lawyers.  Unlike the basic petition process, it does require knowledge of the law.

 

A VJ member who may be helpful is @Jeanne Adil.  I believe she had to do an appeal at one point.

[SalishSea 16,826]

58 minutes ago, retheem said:

Please explain this rule in a laymans language. So does it mean on the DS 260 where it asks " what occupation do you intend to do in the US" you should have a degree for that?

Not required for a marriage-based visa.  

[Nockideetah 5]

2 minutes ago, Jorgedig said:

The AAO is part of USCIS.   When your petition is sent back to the USCIS, you can prepare an appeal of the decision.  One word of advice - many who are successful in doing this have help from experienced immigration lawyers.  Unlike the basic petition process, it does require knowledge of the law.

 

A VJ member who may be helpful is @Jeanne Adil.  I believe she had to do an appeal at one point.

Ok I will keep that in mind. Thank you.

[retheem 553]

1 minute ago, Jorgedig said:

Not required for a marriage-based visa.  

Okay...at this point its about keeping your behind covered on all sides

[Orangesapples 1,954]

3 hours ago, Amadia said:

I have done some research and have found the following for 212(a)(5) under Ineligibilities and waivers here: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/waivers.html

 

5) Labor certification and qualifications for certain immigrants.-

A) Labor certification.-

(i) In general.-Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

(ii) Certain aliens subject to special rule.-For purposes of clause (i)(I), an alien described in this clause is an alien who-

(I) is a member of the teaching profession,

 

I suggest talking to your spouse and finding out what exactly he explained to the CO about what he did regarding teaching, etc. Did he tell them that he plans to teach when he comes to the US? It had to be something he said during the interview that sparked them to tag this as a denial. Truthfully, the COs ask these during casual conversations to catch the interviewee off-guard. Talk to your spouse and find out what was said....you can contest it and I suggest NOT waiting 8 weeks like they told you. It is the 8 weeks that they will send his file back to NVC with an NOIR and then they will tell you that you waited too long to contest it.

Like others said....get an experienced immigration attorney who has dealt with these things before.

 

Stay strong 🤞

 

He's not entering for the purpose of performing skilled or unskilled labor, he's entering for the purpose of being reunited with his spouse. It doesn't matter if he's a teacher. 

Edited August 20, 2020 by Orangesapples

[Transcom123 10]

On 8/19/2020 at 4:58 AM, Nockideetah said:

My husband was refused for a CR1 visa due to section 212(a)5. The consular gave no explanation and told us to contact NVC. When I contacted NVC, they told me the documents are out of their jurisdiction. At this time, No one  will Give us answers. My husband and I have provided all proper documentation and we even met. I feel so lost and hopeless. 
Can someone give me directions? 

Hello , 212 a5 is also about immigration violation reasons , let me ask you some : you guys tried to file for cr1 or K1 visa before ?

 

How much age gap ?

 

How much annual income you guys showed ?

 

How much vists you make for you husband ?

 

Was a marriage on the first visit ?

[Nockideetah 5]

15 minutes ago, Transcom123 said:

Hello , 212 a5 is also about immigration violation reasons , let me ask you some : you guys tried to file for cr1 or K1 visa before ?

 

How much age gap ?

 

How much annual income you guys showed ?

 

How much vists you make for you husband ?

 

Was a marriage on the first visit ?

Really? But that's not what the law says under that section.  How do you know?

[geowrian 22,336]

Visa ineligabilities for FY19: https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2019AnnualReport/FY19AnnualReport-TableXX.pdf

212(a)(5)(A) Labor Certification (immigrants only): 10,502

212(a)(5)(B) Unqualified Physician (immigrants only): 0

212(a)(5)(C) Uncertified foreign health-care workers: 1 (and it was overcome)

 

None of these apply to a CR-1/IR-1 visa.

[Transcom123 10]

18 minutes ago, Nockideetah said:

Really? But that's not what the law says under that section.  How do you know?

Sorry if i bothered you but as you can see on this screenshot

[SusieQQQ 11,584]

8 minutes ago, Transcom123 said:

Sorry if i bothered you but as you can see on this screenshot

There are a number of sections under 212(a), each sub-number deals with a different issue. 212(a)(5) is not the one that deals with immigration violations.

 

Also please don’t screenshot with no source, we have no idea how reliable that is. It does not look like an official uscis page. If it’s official please provide the url too.

Edited August 24, 2020 by SusieQQQ

[Transcom123 10]

Just now, SusieQQQ said:

There are a number of sections under 212(a), each sub-number deals with a different issue. 212(a)(5) is not the one that deal with immigration 

I think it was the officer error then if the applicant never applied for another type of visa

[SusieQQQ 11,584]

6 minutes ago, Transcom123 said:

I think it was the officer error then if the applicant never applied for another type of visa

FYI here is the full list of types of 212a refusals, from the Uscis manual.

https://fam.state.gov/FAM/09FAM/09FAM030104.html

Summary of Grounds for Refusal (by Section of Law):  See paragraph c for a list by category.

(1)  INA 212(a)(1):  Health and medical-related grounds (see 9 FAM 302.2);

(2)  INA 212(a)(2):  Criminal and related grounds (see 9 FAM 302.3 and 9 FAM 302.4);

(3)  INA 212(a)(3):  Security and related grounds (see 9 FAM 302.5, 9 FAM 302.6, and 9 FAM 302.7);

(4)  INA 212(a)(4):  Public charge (see 9 FAM 302.8);

(5)  INA 212(a)(5):  Labor certification, qualification (see 9 FAM 302.1-5);

(6)  INA 212(a)(6):  Illegal entrants, immigration violators, misrepresentation (see 9 FAM 302.9);

(7)  INA 212(a)(7):  Documentation requirements (see 9 FAM 302.1-3 and 9 FAM 302.1-4);

(8)  INA 212(a)(8):  Ineligible for citizenship (see 9 FAM 302.10);

(9)  INA 212(a)(9):  Previously removed, unlawfully present, unlawfully present after previous immigration violations (see 9 FAM 302.11);

(10) INA 212(a)(10): Other miscellaneous grounds (see 9 FAM 302.12);

 

—-

I agree that it is seems like an error, but of what exactly (a different type of refusal or, less likely, the CO refusing on an irrelevant ground for CR1) is hard to know. OP said NVC said something about documents being out of their jurisdiction, so possibly It was subsection 7 not 5... but that’s just speculation.

 

 

Edited August 24, 2020 by SusieQQQ

[geowrian 22,336]

7 minutes ago, Transcom123 said:

Sorry if i bothered you but as you can see on this screenshot

INA 212 is where the vast majority of immigration violations and ineligibilities fall. INA 212(a)(5) is the one marked int he OP's case. That "(5)" designation refers to labor certification.

Se INA 212: https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1182&num=0&edition=prelim

[Nockideetah 5]

1 hour ago, Transcom123 said:

I think it was the officer error then if the applicant never applied for another type of visa

I thought that too

[Nockideetah 5]

1 hour ago, Transcom123 said:

I think it was the officer error then if the applicant never applied for another type of visa

Why another visa?

1 hour ago, geowrian said:

INA 212 is where the vast majority of immigration violations and ineligibilities fall. INA 212(a)(5) is the one marked int he OP's case. That "(5)" designation refers to labor certification.

Se INA 212: https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1182&num=0&edition=prelim

I've seen that too. I'm so confused.