212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude

212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a South Korean client who was subject to a life-time bar from entering the United States due to being charged with fraud/misrepresentation pursuant to INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i).

Our client previously attended middle school, high school, and university in the United States before returning to his native country of South Korea. He recently attempted to re-enter the United States as a temporary visitor to visit his family members and long-time friends, as well as pursue an entrepreneurial venture in partnership with a U.S.-based company.

He was denied entry due to being charged with fraud/misrepresentation under INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i). He subsequently contacted my office for assistance in obtaining a waiver of both INA Section 212(a)(6)(C)(i) and 212(a)(2)(A)(i) , as well as approval of a B-1/B-2 visa to temporarily visit the U.S. in the future.

We prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a fourteen-page legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). We also submitted twelve separate exhibits supporting all of the factors set forth in our memorandum including: numerous affidavits; financial documentation; police reports and court records; military service records; business presentations and documentation; along with other vital evidence we have found necessary to secure approval of the 212(d)(3) waiver.

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out by Matter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, the vital importance of allowing a prior student of the United States educational system to re-visit the U.S. and visit his long-time friends; allowing our client to visit his U.S. citizen relatives who he has not seen for over 7+ years; and to facilitate the growth of the U.S. economy and promote international trade by allowing our client to meet with a U.S. company that he has entered into a contractual business agreement with.

We emphasized the non-existent risk of our client overstaying or violating the terms of a B-1/B-2 visa, given his ownership and operation of a South Korean company that requires his day-to-day managerial and operational presence; his prior lawful presence in the United States as a foreign student on a valid F-1 visa; our client’s intimate support and long-term commitment to his parents, who rely upon our client for their overall care and payment of household expenses; and our client’s legitimate business need to meet with a U.S. company, with whom he has entered into a contractual agreement.

Based upon these factors, our client was first recommended for the 212(d)(3) waiver by the interviewing consular officer at the U.S. embassy; then later approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C.; and finally, for the B-1/B-2 Visitor Visa.

These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver.  This was especially so in this case because our client had multiple grounds of inadmissibility which he was subject to.

Due to our extensive preparation of the waiver and lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States, visit his family members and long-time friends, and further the success of his entrepreneurial venture.