Section 5A of the INA

[tywy_99]

Dear USCONGUZ,

 

Would you kindly explain what "section 5A" of the Immigration and Nationality Act means as shown on the revocation notices?

 

Thank you,

[USCONGUZ]

Dear CFL,

 

When a family/relationship-based petition has been refused under section 5A, this essentially means that the consular officer has made a determination that the underlying relationship is not bona fide and was instead formed in an effort to circumvent U.S. immigration law.

 

After an officer refuses a case under section 5A, all processing on the case in Guangzhou is suspended. The file is then returned with a recommendation for revocation to the local DHS office in the U.S. where the original petition was filed.

 

Once the file arrives at this office, DHS will send a letter to the petitioner asking if s/he wishes to appeal the consular officer's recommendation. Petitioners have 30 days in which to exercise their right of appeal. Anyone seeking to appeal is given an opportunity to review and respond to the consular officer's findings.

 

The final determination of whether to revoke the petition is made by DHS. If DHS reaffirms the petition, it is returned to Guangzhou and processing is resumed.

 

Sincerely,

USCONGUZ

 

 

 

 

Dear USCONGUZ,

 

Would you kindly explain what "section 5A" of the Immigration and Nationality Act means as shown on the revocation notices?

 

Thank you,

[david_dawei]

Can we get the long hand reference to this?

 

I assume this is somewhere in INA 212 section?? but where can anyone look up the reference for themself?

 

thanks.

[Palladin]

I looked up the INA and could not find what is the Section 5A that the Consular Officer referred to in INA.

 

Actually recent visa denial white slips no longer referred to Section 5A any more. They refer to 221(g) instead.

 

Link to the full INA is here:

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act

[david_dawei]

This is quite a dated thread but we solved this long ago.

 

The white slips used to have a front page showing 221(g) and various 212(a) sections for the grounds of denial. . and there was a reference that section 203(e) requires the cancellation of the application. This latter reference is the key to understanding the mysterious 5A, where it is stated:

 

© Labor certification required.- An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212(a)(5)(A).

 

Thus, the 5A is a part of 212.

[Randy W]

Section 5A of the INA - a visa denial from GUZ is often listed as "under Section 5A of the INA". Documents from GUZ have referred to Section 212( a )5( A ) as this Section 5a:

Visa Officer Marc Cook: 212(a)(5)(A) is a proper ground of refusal for IV applicants who are determined not to be eligible for the IV category under which they have applied. For example, it is used to refuse family-based IV applicants when it is determined that the requisite family relationship does not exist (e.g., a marriage to circumvent immigration law, or DNA tests establish lack of paternity/maternity). A 212(a)(5)(A) refusal is appropriate in these cases because, once the alien no longer falls within a family-based IV category, the alien is no longer exempt from the labor certification requirement that would otherwise normally apply to immigrant applicants.

from Immigration Webchat Transcript 12/17/2008

 

 

 

212( a )5( A ) reads

 

(5) LABOR CERTIFICATION AND QUALIFICATIONS FOR CERTAIN IMMIGRANTS.-

 

(A) LABOR CERTIFICATION.-

 

(i) IN GENERAL.-Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-

 

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

 

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

 

 

Their justification being that since the applicant was denied a family visa, the only other category available to the applicant is a labor visa. But the applicant, of course, is not eligible for a labor visa in the absence of an approved labor certification. A pretty cheesy "reason" for denial.

 

Edited November 29, 2011 by Randy W (see edit history)