A U.S. Embassy refused an H-1B visa under both INA §212(a)(6)(C)(i) and INA §212(a)(9)(B) after the worker’s former employer withdrew an H-1B petition without notifying him. The government treated the withdrawal as evidence that the worker had misrepresented his prior H-1B status and had remained unlawfully in the United States.
The response did not concede fraud and did not seek an inadmissibility waiver. It challenged the factual and legal basis for both findings. The Department of State and the Embassy ultimately removed both charges, issued a new H-1B visa, and permitted the client to return to the United States to work for the new employer.
This is an anonymized report of an actual Messersmith Law Firm matter. Names, employers, post location, and nonmaterial identifying details have been omitted. Past results do not guarantee a similar outcome.
The client had held H-1B status through a U.S. employer referred to here as Company A. Company A later withdrew the previously approved Form I-129 petition.
The client was not informed by Company A or its attorney that the petition had been withdrawn. That absence of notice became central to whether the client knowingly or willfully misstated his immigration status.
A second employer, Company B, filed a new Form I-129 seeking H-1B employment for the client. USCIS approved the new petition but denied the request to change status inside the United States.
USCIS concluded that the client had not established continued employment with Company A because the earlier petition had been withdrawn.
The change-of-status denial created a much larger problem at the Embassy. The consular case did not remain a routine H-1B stamping issue. The post treated the prior petition withdrawal as the basis for a permanent fraud finding and a separate unlawful-presence bar.
The client worked in the United States pursuant to H-1B classification connected to Company A.
The prior employer withdrew the approved H-1B petition without notifying the client.
The new employer sought H-1B classification and a change of status for the client.
The classification approval remained useful, but the client needed consular processing before returning in H-1B status.
The post applied INA §212(a)(6)(C)(i) for fraud or willful misrepresentation and INA §212(a)(9)(B) for unlawful presence.
The defense was presented to the Department of State and the Embassy rather than conceding either inadmissibility ground.
The government corrected the inadmissibility record and no longer treated the client as barred under either section.
The client obtained the visa and returned to the United States to work for Company B.
The government must identify the representation or concealment that it claims was false. A status problem by itself is not automatically a false statement.
The ground requires fraud or a willful misrepresentation. An applicant generally cannot willfully misstate a petition withdrawal that the applicant did not know occurred.
The disputed fact must be material to eligibility or the government’s inquiry—not merely inaccurate or incomplete in an immaterial way.
The statement must have been made in seeking to obtain a visa, admission, documentation, or another benefit under immigration law.
The analysis should identify what the applicant actually told USCIS, the Department of State, or another authorized government official.
Unlike a temporary visa refusal, INA §212(a)(6)(C)(i) ordinarily creates a lifetime inadmissibility ground unless it is corrected or a qualifying waiver is approved.
The key issue was knowledge and willfulness. The published case report states that neither Company A nor its attorney informed the client that the prior petition had been withdrawn. That fact directly undermined a conclusion that he intentionally misrepresented the withdrawal or his understanding of his status.
The three-year bar generally requires more than 180 days but less than one year of unlawful presence before departure or removal.
The ten-year bar generally requires one year or more of unlawful presence before departure or removal.
Accrual alone is not the complete statutory inquiry. The bar is generally triggered when the person later departs or is removed and seeks admission within the applicable period.
A violation of nonimmigrant status and accrual of unlawful presence are related but not always identical. The dates and governing status rules must be calculated precisely.
The effective date and legal effect of the prior employer’s withdrawal were central to determining whether and when any unlawful presence could have accrued.
The petition history, USCIS decision, I-94, employment chronology, and government treatment of the period all affect the analysis.
An “out of status” statement should not substitute for a statutory calculation. The response needed to address the actual petition and status timeline rather than accept the Embassy’s conclusion that the client had been unlawfully present throughout the entire period.
The client’s employment with Company A was connected to an approved H-1B petition before the withdrawal occurred.
The former employer did not notify the client that it had withdrawn the H-1B petition.
The attorney connected to the former employer’s petition also did not notify the client of the withdrawal.
USCIS approved Company B’s new Form I-129 even though it denied the accompanying change-of-status request.
The two inadmissibility determinations were imposed when the client sought an H-1B visa from the U.S. Embassy.
The Department of State and Embassy accepted the challenge sufficiently to clear both inadmissibility charges.
The defense had to isolate what the government believed the client represented about Company A, the petition withdrawal, employment, or H-1B status.
The lack of notice from Company A and its attorney was central to whether the client could have intentionally misstated the withdrawal.
The approved and withdrawn petitions, the new filing, and the change-of-status decision had to be treated as a single chronology.
The response challenged the assumption that petition withdrawal automatically made the client unlawfully present for the entire period.
The published account states that the defense was presented to both the Department of State and the Embassy.
The goal was not merely another visa interview. It was correction of both inadmissibility findings so the visa could be issued without a waiver.
| Record category | Why it mattered |
|---|---|
| Company A’s approved Form I-129 history | Established the prior H-1B petition and the baseline for the client’s understanding of his status. |
| Company A’s withdrawal record | Established when the employer acted and allowed the defense to examine the effect of the withdrawal. |
| Notice or lack-of-notice evidence | Addressed whether the client knew that Company A had withdrawn the petition. |
| Company B’s Form I-129 approval | Confirmed USCIS approval of the new H-1B classification even though change of status was denied. |
| Change-of-status denial | Identified USCIS’s reasoning and the agency conclusion later relied upon during consular processing. |
| Employment chronology | Connected the employers, petition filings, work periods, departure, and visa application. |
| I-94 and immigration-status history | Supported a date-specific analysis of status and any alleged unlawful presence. |
| Embassy refusal record | Identified the two inadmissibility grounds that needed to be removed. |
| Applicant explanation | Explained what the client knew, when he knew it, and why he did not intentionally misstate the petition withdrawal. |
| Legal memorandum | Applied the statutory elements to the record and requested correction rather than discretionary forgiveness. |
The public case report identifies the petition history, lack of notice, government findings, defense, and outcome. This table describes the records necessarily implicated by those documented issues without disclosing the client’s confidential file.
The client’s position was that the permanent fraud ground should not have been imposed because the withdrawal was unknown to him.
An INA §212(i) waiver requires its own statutory qualifying-relative and extreme-hardship analysis. It does not establish that the original finding was correct.
The objective was to restore eligibility for H-1B visa issuance by correcting the government’s treatment of the petition and status history.
The client did not merely seek forgiveness for a three- or ten-year bar. The defense challenged whether the statutory bar applied.
An uncorrected fraud finding can affect future visas, admission, adjustment of status, waivers, and immigration disclosures long after a temporary bar expires.
When the elements are unsupported, correcting the finding can be more appropriate than presenting the client as inadmissible and asking for discretion.
Before filing Form I-601 or requesting a nonimmigrant waiver, determine whether the government can establish the alleged statement, falsity, willfulness, materiality, procurement, and all other required elements.
The defense resulted in removal of the INA §212(a)(6)(C)(i) fraud or willful-misrepresentation finding and the INA §212(a)(9)(B) unlawful-presence finding.
The Embassy then issued a new H-1B visa. The client reentered the United States and began or resumed the approved employment with Company B.
No fraud waiver was required. No unlawful-presence waiver was required. The result came from correcting the government’s legal and factual treatment of the case.
An employer’s withdrawal, revocation request, worksite change, or failure to communicate can create immigration consequences for the beneficiary.
USCIS may approve an H-1B classification while denying change of status, requiring consular processing before the person can return in H-1B status.
Reasoning in a petition or status decision can become the basis for a later Department of State refusal.
An applicant’s responsibility for a statement must be analyzed against what the applicant knew at the relevant time.
Unlawful presence requires a statutory calculation and should not be inferred from a general statement that the person lacked status.
Removing only one finding would not have solved the case. Both the permanent fraud charge and the temporary unlawful-presence bar had to be addressed.
A worker who knew the petition had been withdrawn and intentionally provided contrary information may face a different analysis.
Even without fraud, employment outside authorized H-1B terms can create status, petition, visa, adjustment, and admission problems.
A different I-94, denial date, departure date, status history, or period of stay can produce a different three- or ten-year-bar analysis.
A challenge is harder when the employer no longer exists, petition records are unavailable, or communications contradict the applicant.
USCIS, the Department of State, and CBP have different functions and may evaluate the same record in different procedural settings.
When the statutory elements are established, the case may require INA §212(i), INA §212(a)(9)(B)(v), INA §212(d)(3), or other available relief.
The client’s name, employers’ names, Embassy location, petition receipt numbers, exact employment dates, and other identifying details are not published.
The anonymization does not change the two statutory findings, undisclosed petition withdrawal, approved new petition, challenge, removal of both charges, visa issuance, or return to H-1B employment.
This result depended on the client’s petition history, lack of notice, employment chronology, government records, available evidence, legal arguments, and the agencies’ treatment of that particular record. Another H-1B worker may have different communications, status dates, I-94 history, employment facts, statements, or waiver eligibility.
Past results do not guarantee, predict, or imply that the Department of State, USCIS, CBP, or another agency will remove an inadmissibility finding or approve a future visa application.
The former employer withdrew an approved H-1B petition without notifying the worker. After a new employer’s petition was approved but change of status was denied, the Embassy imposed fraud and unlawful-presence findings. Both findings were challenged, removed, and followed by issuance of a new H-1B visa.
The Embassy applied INA §212(a)(6)(C)(i) for fraud or willful misrepresentation and INA §212(a)(9)(B) for unlawful presence.
The published case report states that neither the former employer nor its attorney informed the client that the prior petition had been withdrawn. That fact undermined a conclusion that the client intentionally misrepresented the withdrawal.
No. A status violation is not automatically a fraudulent or willful material misrepresentation. The government must establish the required statutory elements.
No. Status violations and unlawful-presence accrual are related but legally distinct. The I-94, petition history, agency decisions, and departure date must be analyzed.
The strategy was to challenge whether the fraud and unlawful-presence findings were legally correct. Filing a waiver would not correct an unsupported government finding.
An employer may request withdrawal of its petition. The immigration consequences for the beneficiary depend on the timing, notice, employment history, status, later filings, and other facts.
No. USCIS can approve the H-1B classification while denying the request to change or extend status, requiring consular processing.
Important records can include all petition notices, withdrawal records, employer communications, payroll and employment evidence, I-94 history, USCIS decisions, the visa refusal, and a declaration explaining the applicant’s knowledge.
The published case report states that the defense was presented to the Department of State and the U.S. Embassy and ultimately resulted in removal of both charges.
The fraud and unlawful-presence findings were removed, the client received a new H-1B visa, and the client returned to the United States to work for the new employer.
No. Every case depends on its own statements, petition history, notice, status dates, evidence, procedural posture, and government record.
Review additional findings corrected, waivers approved, removal orders vacated, and visas issued.
Elements of INA §212(a)(6)(C)(i), materiality, willfulness, procurement, evidence, and defenses.
Accrual, departure, three- and ten-year bars, exceptions, calculations, and waivers.
Legal memoranda, source records, reconsideration, agency correction, and evidence strategy.
Organizing facts, statutory elements, evidence, agency records, and requested relief.
Requesting review of an incorrect consular inadmissibility or visa conclusion.
Understanding statutory refusal codes, waiver availability, challenges, and future applications.
When a valid fraud finding cannot be overcome and an immigrant waiver is available.
A complete review should identify the exact alleged statement, what the applicant knew, the petition and employment chronology, I-94 history, unlawful-presence calculation, government source records, and every available challenge or waiver.
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