Let’s say you had a run-in with the law a long time ago. As a result, you were convicted of fraud. But it happened so long ago that you do not give much thought to it. So when you applied for a visa a few years back to visit your daughter and her children in the US, you did not indicate the conviction in the visa application form. You received the visa and used it to go to the US several times. You didn’t give much thought to it, until you decided to immigrate with your daughter’s help, and you had to obtain a police certificate. The police certificate indicated the conviction, but you were not worried because you had consulted a lawyer, who told you that although the conviction was for a crime of moral turpitude and did not qualify for the petty offense exception, a waiver was available. Moreover, the lawyer advised that the standard to obtain the waiver under Section 212(h) of the Immigration and Nationality Act was relatively simple to meet: because the crime of moral turpitude took place more than 15 years ago, you only needed to show that you had been rehabilitated, and that you did not pose a threat to the welfare, safety or security of the United States. End of story, right?
Not so fast, says the consular officer. He pulls up from the archive your visitor visa application from several years ago, where you indicated that you did not have a conviction. He shows it to you. You admit that you didn’t fill it in correctly but that under your country’s law, you do not need to indicate convictions more than 10 years old. The consular officer shows indifference to your attempt to justify the omission, saying that you “lied” to obtain a visa. Therefore, he is finding you permanently inadmissible to the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act for committing a willful, material misrepresentation. “OK, I can file for another waiver,” you say.
Not so fast. Unfortunately, there is no immigrant waiver available to parents of US citizens who have been found inadmissible under Section 212(a)(6)(C)(i). Only spouses and children of US citizens or permanent residents are eligible for a waiver under Section 212(i) of the Immigration and Nationality Act, not parents. Thus, such a finding is fatal to the immigration application. You think that instead of immigrating, you can continue to visit your daughter with a B-1/B-2 visitor visa. But the problem is that, while a nonimmigrant waiver is available for a visitor visa, you are unlikely to receive such a waiver because you have expressed an intent to immigrate to the US, i.e., you will not be able to overcome the burden of Section 214(b) to show that your planned visit to the US is temporary.
Of course, one can seek to challenge the consular officer’s finding that the misrepresentation was willful on your part, that you did not intend to mislead anyone. We would be happy to discuss with you such a possibility. But the lesson here is to be honest when applying for any US visa, and if you are unclear about a question on the application form, to consult with a lawyer, not a travel agent or visa consultant. (I wish I had a dollar for every time we have seen travel agents tell someone to lie or give wrong advice.) A consular officer can go back years and years and years to review previous applications – there are no statute of limitations. If you are unsure how you filled in a form, you can request a copy. But before applying to immigrate, you should think about this issue – and the potential lifechanging problems that may arise.