Freedom of Information Act (FOIA) Requests for Visa and Immigration Cases

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A FOIA request can be extremely helpful to find out what information a government agency has; to clarify dates; and to “re-construct” a file in a case where documents were lost or misplaced. Such a request can be critical to overcome a finding of inadmissibility in visa cases, in particular, such as accusations of misrepresentations, alien smuggling and unlawful presence.  All agencies of the Executive Branch of the United States Government are required to disclose records upon receiving a written request for them, except for those records protected from disclosure by exemptions (e.g., law enforcement, security, and privacy reasons).  As a general rule, the Government does not charge fees for conducting the search, although it reserves the right to do so. What makes the FOIA process challenging is that there is no central office which processes FOIA requests for all federal agencies. Therefore, it is necessary to determine which agency…

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Comparison of Immigrant Waivers

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The journey to obtaining permanent residency in a new country can be fraught with challenges, and for many immigrants, overcoming certain legal barriers is a crucial step in this process. One such hurdle is the need for immigrant waivers, which allow individuals with specific grounds of inadmissibility to immigrate and continue their pursuit of a better life. Ideally, one would not need a waiver, and as illustrated throughout this site, if you believe that there was a factual or legal mistake made in the decision to bar you, you should certainly challenge that decision first.  Here, we will delve into and compare three types of immigrant waivers, each of which are submitted on Form I-601. 212(a)(6)(C)(i) Misrepresentation A waiver for a willful, material misrepresentation is available to a spouse or child of US citizen (USC) or Legal Permanent Resident (LPR). The legal standard to qualify for the waiver is “extreme…

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AzTech, Integra, Wireclass, Andwill Update: We Have Obtained Shocking Internal ICE Documents Concerning its Investigation. Part 2.

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In Part 1, we described the materials recently received from a Freedom of Information Act request to Immigration and Customs Enforcement.  The materials are not only eye-opening but indeed shocking: they show that the students were let down by delinquent government and university actors that failed to warn them of the scam.  Most mind-boggling: the US government is now using its own delinquency as a sword against these students in permanently barring them from the United States and using shell-game tactics to make it is as difficult as possible to challenge the bars.  Here, we provide additional details from those ICE reports: The Homeland Security Investigations Wilmington office identified approximately 1,925 STEM OPT students associated with AzTech. HSI administratively arrested 15 STEM OPT students.  (An administrative arrest is the arrest of a foreign individual for a civil – not criminal – violation of U.S. immigration laws.  These cases are then…

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AzTech, Integra, Wireclass, Andwill Update: We Have Obtained Shocking Internal ICE Documents Concerning its Investigation. Part 1.

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In addition to Amazon, Intel, and Google, according to ICE statistics, Integra Technologies was one of the top 4 employers of OPT students in 2017 and 2018.  In 2019, AzTech was one of the top 4 employers, together with Amazon, Google, and Deloitte. During these three years, Integra and AzTech “employed” nearly 5,000 foreign students.  So why did it take until January 2020 for Immigration and Customs Enforcement to launch a comprehensive investigation into the activities of Integra and AzTech?  This is the mind-boggling conclusion evident in materials received as a result of a Freedom of Information Act request. Why was ICE asleep at the wheel, while thousands of innocent, unwitting foreign students were victimized by a years-long scam and now are permanently barred from the United States under Section 212(a)(6)(C)(i) as a result? And where were the university DSOs during this scandal? Last week we finally received internal ICE…

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Top 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions – Part III

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Here, we finalize our list of the top 15 trends and observations relating to Section 212(a)(6)(C)(i) – findings of willful, material misrepresentations: 11. The Role of ICE/HSI.   Most individuals who have either submitted a work or immigration petition or application or entered the United States are familiar with the government agencies involved in those processes – US Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP), respectively.  And many are familiar with Immigration and Customs Enforcement (ICE) as the “immigration police”: ICE enforces US immigration laws within the United States.  But not many are aware that the Homeland Security Investigations (HSI) branch of ICE has officers embedded into certain consulates overseas and that those officers make findings of inadmissibility. ICE denies that it makes such findings – its position is that it is the consular officer who makes such findings, not ICE.  However, we have seen internal government…

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Top 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions – Part II

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Last week we began the list of the top 15 trends and observations relating to the consular imposition of permanent bars under Section 212(a)(6)(C)(i) for willful, material misrepresentations. Hopefully, this will inform and educate as you plan for future visa applications.  Here, we continue that list: 6. OPT Fraud.  Much ink and many tears have been shed over the OPT scandal, with the full impact only now being felt.  Starting in 2020, thousands of individuals have been permanently barred from the US for their association with scam OPT companies, such as Findream, AZTech, Integra, Wireclass, and Global IT Experts.  More can be read about this scandal on our blogs, but suffice to say that the consequences will be felt for the rest of the lives of not only these individuals, but close family members and American employers as well.  Instead of being able to live the American dream, these talented…

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Top 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions

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Unlawful presence (212(a)(9)(B)), misrepresentations (212(a)(6)(C)(i)), and alien smuggling (212(a)(6)(E)) continue to be the most frequently invoked inadmissibility bars to entry to the United States by consular officers.  And while unlawful presence based on overstays in the United States is a relatively straightforward legal decision, determinations of willful, material misrepresentations and alien smuggling are not.   How does one define “materiality”? Was the misrepresentation actually “willful”? What does it mean to “aid and abet the illegal entry” to the United States? This 3-part blog will focus on the latest trends in consular misrepresentation (“6Ci”) decisions; later, we will address recent trends in smuggling (“6E”) adjudications. Notwithstanding the pandemic and the limited operations of consular posts, the rendering of 6Ci determinations continues unabated.  In the pandemic years of FY2020 and FY2021, consuls entered more than 17,000 misrepresentation findings. During this time, we have observed the following: Politics is Overestimated. Many thought that with…

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Fires and Visas: More in Common than You Think (Or the Importance of the DS-160 Visa Application)

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It is fire season here in California, and inevitably talk turns to what could have been done to prevent the latest big fire, that the fire could have been prevented if only…. The lessons learned are so applicable to visas that I even have a painting of firemen and a firetruck in my office.  Clients come to me with a “five-alarm fire,” and often my first thought is what could have been done to prevent the fire.  Sometimes, the problem is as simple as correctly and properly filling in the DS-160 visa application form or even having a copy of the visa application form. In many of these consultations, inevitably the topic turns to what was indicated in the visa application form.  I ask for a copy of the DS-160 visa application form and the client does not have one. The client attempts to reconstruct the application or tries to…

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How WhatsApp Messages Can Lead to Cancelled Visas, Expedited Removal, and Permanent Bans

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Just because you have arrived at an airport in the United States does not mean that you are protected by the US Constitution and the right to be free from unreasonable searches. This is the unfortunate lesson learned by hundreds of travelers each day to the US.  Worse, the messages on one’s own phone can lead to a cancelled visa, a return trip home, and a permanent ban on entry. As international travel has reemerged after the pandemic, so have the problems experienced by international visitors to the US. Just over the past few months we have conducted numerous consultations with individuals subject to intrusive CBP searches at the airports, including luggage checks and the contents of telephones.  These searches have led to accusations of unlawful employment (most common), prostitution, drug use, intent to remain in the US beyond the length of permitted stay, intent to marry, and intent to…

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5 Years? 10? 20? How Far Back Will a Consular Officer Look for a Misrepresentation or Alien Smuggling?

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People thought that with the passing of the Trump Administration, Department of State visa policies would become more tempered and that enforcement would moderate from the Trump-era extremes.  People, unfortunately, could not have been more wrong. Statutes of limitations exist for good reason: due process, basic fairness, evidence that becomes stale over the years, the disappearance or death of witnesses, fading memories, and to prevent inconsistent decisions.  But as discussed in a previous blog, there is no statute of limitations in visa law. And so consular officers are free to go back and review previous visa applications and time spent in the United States to determine whether a misrepresentation (Section 212(a)(6)(C)(i))  had been made at the time of the visa application or at the time of entry to the United States, or whether the individual had engaged in alien smuggling (Section 212(a)(6)(E)).  Critically, this holds true whether a consular officer…

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AZTech, Integra Technologies, AndWill, and Wireclass Update VI: Operation Bad Apple.

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We have been able to review some of the government documents relating to the DHS investigation of these companies. Needless to say, the documents are eye-opening.  The government investigation into the OPT scandal is entitled Operation Bad Apple. But unfortunately, DHS considers not only the people behind AZTech, Integra, Wireclass and AndWill as the “bad apples,” but the F-1 students who were associated with them as well. Lest there be any doubt, the DHS documentation makes clear: these OPT sponsors were “shell companies”. These companies produced “fraudulent employment letters for F-1 students on OPT, STEM OPT, and CPT.” They used “virtual offices” and are not “legitimately operating businesses.”  In retrospect, we all know that. But the broad brush which DHS paints the students – as knowing participants in fraud – is alarming. There does not appear to be any gray area. Per DHS, the students did not work for these…

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AZTech, Integra Technologies, Andwill, and Wireclass Update V: Disconcerting Dysfunction – 4 Government Agencies Each Going Own Way Provide Lack of Closure to Victims

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After the ICE press conference in October, it appeared that the US Government was winding down its investigation of AZTech, Integra, Andwill and Wireclass.  It appeared that those associated with The Four companies would be getting resolution one way or another. That conclusion, it turns out, was premature. As you know, there are four US government agencies primarily involved in the administration and enforcement of US immigration laws. They are Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), US Citizenship and Immigration Services (USCIS), and the Department of State through its local embassies and consulates.  ICE are the immigration police; it also is responsible for the administration of the SEVIS and OPT programs.  CBP includes the airport and port-of-entry inspectors who verify the admissibility of individuals to the United States. USCIS adjudicates immigration benefits, including H-1B petitions, I-765 employment authorization applications, changes/extensions of status, and green card applications….

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AZTech, Integra Technologies, Andwill, and Wireclass Update IV – Clarity on the Way?

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Yesterday, ICE announced the arrests of 15 OPT students for claiming “to be employed by companies that don’t exist.”  At its press conference, ICE announced that as a part of its Operation OPTical Illusion, it identified up to 3,300 individuals of interest, and of those individuals, it will seek to deport 1,100.  Of the 1,100, USCIS is in the process of revoking the employment authorizations of 700, with the remainder expected to have the validity periods lapse in the next couple of months.  These employment authorizations were characterized as being “fraudulently” obtained and seem to have been connected with one company. Obviously, this is not good news for the 1,100.  While it is still too early to draw conclusions, it is possible that ICE not only intends to remove these individuals from the United States, but permanently bar them from the United States for engaging in “fraudulent” activity. Apparently, ICE considers…

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The Role of Culture in Visa Denials.

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I recently wrote a blog regarding the OPT scandal advising the victims that “surrender is not an option”, that they needed to be proactive in seeking to resolve the potential drastic consequences.  That thought came to mind again when a gentleman contacted me a few weeks ago about his wife’s visa problem.  She had been denied an immigrant visa and permanently barred from the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The stakes for him could not be much higher: his wife may never be able to join him in the US unless an immigrant waiver would be approved.  Yet in talking to him and reviewing the case documents, it was not clear why she had been accused of making a willful, material misrepresentation.    I told him that the consular officer should be contacted and asked to provide a clarification about why this draconian decision had…

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