Dear Atty. Lou,
On April 29, 
2009, my brother and I were granted
 H2B visas to work for a US company somewhere in Missouri. After receiving our approvals and our interview at the US Embassy, I purchased a non-refundable plane tickets. Unfortunately, we were called 
back to the embassy a few days prior to leaving. We were 
questioned by the fraud department at the US Embassy. We did not know
 anything, but apparently the US employer was not honest, and not
 treating workers properly.
We did not know why we were being questioned and were told by our
 agencies in the Philippines and USA that it was a minor problem with a
 contract. We were told that the US employer had just submitted 
the wrong contracts and their lawyers would be contacting the US 
Embassy to straighten out the problem. We were sent new contracts to
 present at the US Embassy fraud office in Manila. We then had our visas revoked and lost out on the chance to work in 
the USA, and lost on the money we had spent on the agencies, US 
Embassy fees and plane tickets. I think the US government took care of
 the Filipino workers that were already in the US and assigned them to legitimate employers. However, my brother and I were about to
 leave to the US, and were unfairly punished. Not only did I lose the visa, job, 
and money, but it appears that I was also accused of misrepresenting
When I went before the US Embassy at a later date with a job offer from a
 real employer I was denied as misrepresenting.
 I am a hard-working young lady only 22 years old now and I just want a chance to
 work for an honest hotel in the US. It is not our fault that the US employer was corrupt. Please help us to clear our names at the US Embassy and get the H2B visas. I know of an honest agency and employer now that would treat me properly. Thank you for
 your help.

MB
Dear MB,
I understand that you were not responsible for the unfortunate incident regarding the revocation of your visas. From the point of view of the US Embassy, they have no basis to determine whether you were aware of the misrepresentations that the US employer/petitioner made in regards to your application for H2B working visas.
Section 212 (a)(6)(C) of the Immigration and Nationality Act provides that an alien who by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure or has procured a visa, other documentation or entry into the US or other benefit provided under that Act is inadmissible or barred from receiving a visa.
The information you have provided indicates that the eight owners of the US petitioner’s company were indicted on RICO (Racketeer Influenced and Corrupt Organizations Act) related to labor racketeering, forced labor trafficking and other immigration violations.
Misrepresentation as a ground for the denial of the visa must be material and must be made willingly and knowingly. The consular officer may not assume that you are not a conspirator to the misrepresentation. The fact that they have seriously indicted the owners of the US company of federal law violations does not automatically mean that you are not a party to the illegal scheme. Hence, if you are found to have “misrepresented” a material fact to the US Embassy, it is your burden to overcome this finding by showing that you are innocent of this misrepresentation.
You may prove your innocence to the consular officer when you have a subsequent opportunity to apply for another working visa through a new employer. If this petition is approved and you re-apply for the working visa at the US Embassy, you should bring proof that you did not participate in the misrepresentation of your prior petitioner and that you are a victim of this unlawful recruitment. Your proof must be satisfactory which must include not just your written testimony but also objective evidence. If you are able to convince the consular officer that you were a victim of illegal recruitment and innocent of the misrepresentation charges, then you may be issued nonimmigrant visas as long as you prove other eligibility requirements. Good luck!
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com
