August 18, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | Aug 18, 2023 | 0 Comments

Lawsuit Filed by Former F-1 Students from India Against DHS for Visa Denials Based on Employers' Fraud:

Former F-1 students from India are challenging the Department of Homeland Security (DHS) in the U.S. District Court for the Western District of Washington. The students allege that the DHS wrongfully deemed them inadmissible due to their association with certain fraudulent companies during their Optional Practical Training (OPT). The lawsuit asserts violations of the Administrative Procedure Act (APA) and raises concerns over DHS's interpretation and implementation procedures. 

How to apply for a waiver after the denial of nonimmigrant visa such as F-1, H-1B, L-1, B-1 and B-2:

If you've been found inadmissible to the U.S. based on a ground such as fraud or misrepresentation under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA), you might be able to apply for a waiver of that inadmissibility under INA section 212(d)(3)

Here's a basic outline of the process:

1. Consult an Immigration Attorney: Due to the complexity of the process and the stakes involved, it's recommended to consult with an immigration attorney who can guide you through the waiver process.  

2. Apply for a Nonimmigrant Visa: Before you can apply for a 212(d)(3) waiver, you need to apply for a nonimmigrant visa (like a tourist visa, business visa, etc.) at a U.S. consulate or embassy. When you apply, you'll likely be denied based on your inadmissibility.

3. Request the Waiver: After your visa application is denied due to the inadmissibility:
• The consular officer may recommend you for a waiver. If they do not, you can ask if they would consider recommending you.
• If the consular officer agrees, they will forward your waiver request to the Admissibility Review Office (ARO) at the Department of Homeland Security (DHS) in the U.S.
• Not all consulates or embassies process waivers the same way. Some might have you fill out a separate form or provide additional documentation.

4. Submit Necessary Documentation: This can include:
• Evidence that supports the reasons you should be granted the waiver, such as letters of support, documentation of rehabilitation, etc.
• Any documents that show your ties to your home country, which indicate you will return after your temporary stay in the U.S.

5. Factors Considered: The U.S. government will consider factors such as:
• The risk of harm to U.S. society if you're admitted.
• The seriousness of your prior immigration law or criminal law violations, if any.
• Your reasons for wishing to enter the U.S.

6. Wait for a Decision: The ARO will make the final decision. If they approve the waiver, they will notify the consulate or embassy, which will then continue processing your visa application.

7. If Approved: If the waiver is approved and you are granted a visa, keep in mind that the visa may come with specific conditions or may be of a limited duration.

Remember, being granted a 212(d)(3) waiver doesn't change your inadmissible status. It simply allows you to enter the U.S. temporarily despite your inadmissibility. If you intend to immigrate to the U.S. permanently in the future, you may need to seek another type of waiver or face challenges based on your inadmissibility.

KCC Copying Attorney of Record on Petitioner Inquiries:

The Kentucky Consular Center (KCC) Fraud Prevention Unit may now be copying attorneys of record on emails to petitioners when conducting fraud checks or background check inquiries on H-1B, L-1 and other visas. 

 A sample inquiry email from KCC's FPU follows for reference:

Subject: Employment Verification for BENEFICIARY (Privacy PII)


The U.S. Department of State occasionally contacts petitioners and client companies involved with Non-Immigrant visa petitions in order to verify that information presented to the U.S. Department of State is accurate and valid.  The U.S. Department of State in support of a pending visa application for BENEFICIARY requests that you answer the below questions as soon as possible.

Petitioner:  XXXXXXX Beneficiary: XXXXXXX
Does PETITIONER anticipate receiving the services of BENEFICIARY? 
• Regarding the services of the visa applicant, BENEFICIARY
• What are the beginning and ending dates of his assignment with your company?
• What are his job description/duties?
• Does PETITIONER have a physical office space?
• Where is BENEFICIARY's physical work location and what company operates at that location?
• Please provide contact information (name, phone number and email address) for the property manager of the work location.

Thank you for your assistance with this inquiry.  Please respond as soon as possible.  If any further information is needed, please contact me.

Traveling outside of the United States on F-1 OPT:

Traveling While on OPT or STEM OPT: A Comprehensive Guide

As the world becomes more connected, international students in the U.S. often wish to travel abroad, whether for leisure, family matters, or other reasons. If you are an F-1 student on post-completion OPT or STEM OPT, you may be wondering about the nuances of traveling while maintaining your status. Here, we delve into the key points you should consider before embarking on your journey.  

Traveling and Re-entry:

An F-1 student on post-completion OPT can travel outside the U.S. and be readmitted to resume F-1 status and employment, provided they meet specific criteria. The student must:  

Be working in a field relevant to their degree. 

Not exceed the permissible unemployment duration during OPT (90 days)  or STEM OPT (60 days). 

However, it's crucial to be aware that, due to the current U.S. immigration environment, there might be increased scrutiny at U.S. ports of entry. This can manifest as added questioning or inspection of personal devices and social media. 

Documents to Carry Before leaving the U.S., ensure you have the following documents:  Valid Passport: Must be valid for at least six months from your reentry date. Valid F-1 Visa Stamp: Unless you are a Canadian citizen. If your student visa is expired, you will need a new F-1 visa stamp. OPT-endorsed Form I-20: This form should be endorsed for travel by your Designated School Official (DSO) within the last six months. Valid Employment Authorization Document (EAD): This card demonstrates your work authorization. Employment Verification Letter: This letter from your OPT employer confirms your employment. 

Counting Days Abroad One significant point to remember is that time spent outside the U.S. during a valid EAD may count against the unemployment limit set by the USCIS. Currently, OPT students can have a maximum of 90 days unemployment during the initial 12 months of OPT. For those on STEM OPT, it's 60 days within the 24-month period.  

Navigating Questions at the Port of Entry Officers may inquire about various aspects, such as:  Your reason for visiting the U.S. Your activities while in the country. Details about your academic program. 

If questioned: Stay Calm: Answer honestly and briefly. Be straightforward. Avoid Risky Jokes: Avoid making off-color remarks about illegal activities, terrorism, etc. Preparing Your Electronic Devices Customs and Border Protection (CBP) may inspect your electronic devices. This could encompass:  Device Inspection: Officers may ask to see your phone, laptop, or tablet. Social Media Scrutiny: Your public profiles and posts may be checked for content that may show violations of U.S. laws or breach of visa status. 

Social Media & App Audit It's essential to review and ensure your online presence doesn't raise red flags. This includes checking for photos, videos, or posts that might be misconstrued or directly indicate violation of laws or academic integrity. 

In Conclusion Traveling while on OPT or STEM OPT is feasible, but it requires meticulous planning and an understanding of U.S. immigration policies. Make sure you're well-prepared, have all the necessary documentation, and understand the implications of your travel. Safe travels!

Best Regards,

Keshab Raj Seadie
Law Offices of Keshab Raj Seadie, P.C.

About the Author


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Us Today

We serve clients throughout the United States including New York and New Jersey and in the following localities: New York City; Albany County including Albany; Dutchess County including Poughkeepsie; Erie County including Buffalo; Monroe County including Rochester; Nassau County including Mineola; Onondaga County including Syracuse; Orange County including Goshen; Putnam County including Carmel; Rockland County including New City; Suffolk County including Riverhead; Ulster County including Kingston; Westchester County including White Plains; Bergen County including Hackensack; Essex County including Newark; Hudson County including Jersey City; Middlesex County including New Brunswick; and Union County including Elizabeth. Attorney Advertising.