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Murthy India Success: H4 Visa Applicant Joins Wife after Potential 10 Year Ban

  • June 7, 2022
150 150 Murthy Immigration Services

We at Murthy India are delighted to share this success story that resulted in the reversal of an inadmissibility finding made by a U.S. Consular post in India. We thank our client for allowing us to share this story for the benefit of other applicants in similar circumstances. Information about clients is kept strictly confidential and is never shared without their explicit permission. 

Background: F1 Student Status Violation and Overstay
The applicant was admitted as a student with an I-94 annotated with D/S – duration of status. The applicant graduated with his first master’s degree and utilized the optional practical training (OPT) period. The applicant then went on to apply for his second master’s degree at the University of Farmington, the fictitious University set up by the U.S. Department of Homeland Security (DHS). DHS terminated the Student and Exchange Visitor Information System (SEVIS) records for all students enrolled at the University of Farmington on or after January 28, 2019.The applicant departed the U.S. in 2021 and recently applied for an H-4 visa at a U.S. consular post in India. His visa was subsequently refused under INA 212(a)(9)(B)(2), which carries a 10-year ban from entering the U.S.  However, the refusal letter indicated that the applicant was eligible to apply for a non-immigrant waiver.
Impact of Accruing Unlawful Presence
Nonimmigrant(s) who have overstayed or remained unlawfully present in the U.S. beyond the period authorized for more than 180 days but less than 365 days, will trigger a 3-year ban upon departure and those who have overstayed for more than 365 days, will trigger a 10-year ban upon departure from the U.S. In such cases, non-immigrants will need a non-immigrant waiver approved by the U.S. Customs and Border Protection (CBP)’s Admissibility Review Office (ARO). It should be noted that the consular officer cannot issue a visa without approval of the waiver from the ARO. The non-immigrant waiver, if approved, is generally valid for up to 5 years.
Murthy India Helps Obtain the H4 Visa and Reversal of Inadmissibility Findings
The client contacted our firm with his visa refusal letter that indicated he was inadmissible to the U.S. pursuant to INA 212(a)(9)(B)(2), and that he was eligible to apply for a nonimmigrant waiver. Our attorneys analyzed his case and determined the inadmissibility finding was a legal error based on the August 9, 2018, policy memorandum titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants”. This policy memorandum changed prior policy and issued new guidance that students will accrue unlawful presence from the date of any status violation.
After carefully reviewing his background and latest court orders, we pointed out to the client that he will not require a nonimmigrant waiver and that the consulate’s inadmissibility finding can be legally challenged. With our client’s consent, we began contacting the concerned U.S. Consular post in India stating that the U.S. District Court for the Middle District of North Carolina issued a nationwide permanent injunction on February 6, 2020, and USCIS shall not enforce the August 9, 2018, policy memorandum. This means that USCIS should continue to apply the prior policy guidance found in AFM Chapter 40.9.2, issued on May 6, 2009 – Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act.
Based on the previous policy guidance, students admitted for “duration of status (D/S)” do not accrue any unlawful presence until either the DHS, an Immigration Judge, or the Board of Immigration Appeals (BIA) makes a formal finding of a status violation and in that event unlawful presence will only being to accrue the day after the formal finding is made and not from the date of a mere violation of status.
Despite presenting our legal arguments, the U.S. Consular post did not initially reverse its erroneous inadmissibility finding. We decided to go one step further and immediately contacted the U.S. Department of State (DOS) seeking their intervention to reverse the erroneous inadmissibility finding. Within a few weeks of our office reaching out to the DOS, the INA 212(a)(9)(B)(2) finding was reversed, and our client was granted the H-4 visa.  The applicant is now reunited with his wife in the United States.
We at Murthy India are pleased to have been able to achieve this favorable decision on behalf of our client so that he could reunite with his family in the U.S. It must be noted that not all inadmissibility findings can be reversed. It is advisable that each visa applicant has their case evaluated by an experienced attorney to determine the scope for a possible reversal of an inadmissibility finding or application for a waiver by making arguments that the Consular Officer’s denial was erroneous or warrants favorable discretion and a waiver on the issue of inadmissibility.