Last week, we received a formal letter from U.S. Customs & Border Protection (CBP) confirming that the Expedited Removal Order that had been issued against our client had been modified to vacate the fraud/misrepresentation charge lodged against our client under INA §212(a)(6)(c), which is a huge success for our client and has significant ramifications for her future U.S. immigration options.
In August 2010, our client, a Canadian citizen and former Chinese national, misrepresented to CBP that she was living in Canada, when in fact she had remained in the U.S. after being laid off from her H-1B position. Our client, an engineer, had first come to the United States in TN status and had eventually changed to H-1B status. Unfortunately, because of the weak economy, she was laid off from her sponsoring employer, which resulted in her losing her H-1B status. Instead of returning to Canada, our client remained in the U.S. in hopes of securing new employment, which she was able to do. However, since she had failed to maintain her non-immigrant status, she was ineligible to change her to status to TN from within the U.S. and needed to depart the U.S. and apply for admission in TN status at a Port of Entry.
While our client was successfully able to obtain TN approval, it was during one of her attempts to re-enter the U.S. that she was issued a Expedited Removal Order under INA §212(a)(7)(A) and INA §212(a)(6)(c). During her questioning by CBP, our client first denied that she had been living in the U.S. and then retracted her statement and admitted that she was living in the U.S. (she was fearful that if she admitted she had been living in the U.S. she would not be issued a TN). As a result of this Expedited Removal Order and the underlying charges of inadmissibility, our client faced a 5-year bar from re-entering the U.S., unless she was able to obtain permission to reapply for admission into the U.S. (I-212 waiver) prior to the expiration of the 5-year bar. Additionally, as a result of the charge of fraud/misrepresentation, our client would forever require a non-immigrant waiver of inadmissibility (Form I-192 for Canadian citizens) to enter the U.S. as a non-immigrant and would only be able to pursue immigrant status in the U.S. in limited circumstances.
Since there is no appeal procedure to challenge the Expedited Removal Order, the only way to address a Expedited Removal Order that may have been issued improvidently is to have CBP review their own decision and address it accordingly. In our request to vacate the fraud charge, we conceded that while she was properly ordered removed under the INA §212(a)(7)(A) charge as an intending immigrant because she was living in the United States, the fraud charge against her should be vacated because she was admissible to the U.S. in TN status under the true facts (i.e. had she told the CBP officer that she had been looking for a new job and remained in the U.S., the CBP officer could have still admitted her in TN status).
After nearly one and a half years of advocacy and dealing with several levels of CBP hierarchy, the fraud charge - a lifetime bar, was vacated. Our client still has to face the five-year bar to admission, but can seek an I-212 waiver to overcome the bar or wait for the five-year period to end. The good news is that she will not require any additional waivers in the future related to this Expedited Removal Order and now has the option of possibility exploring permanent resident options in the U.S. in the future.
If you have been issued an Expedited Removal Order that you would like us to analyze to review whether a request to vacate is possible, than please contact our office to schedule a consultation.