ERO and Underlying Charge of Inadmissibility Based on Fraud Vacated by CBP for Canadian Citizen

Our Client, a Canadian citizen, was an engineer who also worked part-time for a test-prep company in Canada as an Instructor. The test-prep company sought to send him to the U.S. for a weekend trainiForm I-601ng assignment where he would be training other prospective instructions. Being a Canadian citizen who is visa-exempt, our Client presented himself at a POE for inspection and admission in B-1 status to carry out this short-term assignment for his Canadian employer. When questioned at the POE, he explained his purpose – he was seeking to enter the U.S. to complete a training assignment on behalf of his Canadian employer for the weekend and would be returning home to Canada at its conclusion. However, he was incorrectly advised that he was not qualified to enter the U.S. in B-1 status to carry out his enumerated purpose and denied him entry.

After leaving the POE, and feeling pressured to complete the training assignment and not being advised that he could not apply again, our Client thought to seek entry at another POE. The next day, he appeared at another POE and this time, he only indicated that he was seeking to enter the U.S. to shop. However, the CBP Officer reviewed our Client’s CBP records and noticed that our Client had been denied entry the previous day and sent him to secondary inspection. During secondary inspection, our client retracted his previous statement and truthfully informed the officer that his primary purpose was still to enter the United States to complete the training assignment for his Canadian employer. At that time, our Client was issued an Order of Expedited Removal under INA §235(b)(1) based on the underlying charges of inadmissibility under INA §§ 212(a)(6)(C)(i) [Fraud/Material Misrepresentation] and (7)(A)(i)(I). Consequently, our Client was now permanently inadmissible to the United States under INA § 212(a)(6)(C)(i), and inadmissible for a five (5) year period under INA § 212(a)(9)(A)(i) based on his order of Expedited Removal. To re-enter the U.S., our Client would now minimally require a non-immigrant waiver pursuant to INA §212(d)(3) [Form I-192] or an immigrant waiver pursuant to INA §212(i) [Form I-601] to waive his inadmissibility under INA §212(a)(6)(C)(i), depending on the purpose of his entry. In addition, if he wanted to re-enter the U.S. within the five (5) year bar imposed as a consequence of the Order of Expedited Removal, our Client would need a waiver pursuant to INA §212(a)(9)(A)(iii) [Form I-212].

Concerned about his ability to re-enter the U.S. in the future, especially as a professional engineer, our Client and his employer contacted our office. We went over the incidents very carefully with our Client, reviewed the paperwork provided by CBP (Record of Sworn Statement, Order of Expedited Removal, etc.), and reviewed the purpose of our Client’s proposed entry into the U.S. Our review revealed that CBP had erred in denying our Client entry in the first place, as he had been admissible in B-1 (in lieu of H-1B) status. In addition, our review revealed that while our Client had indeed made a false statement to CBP, his false statement did not meet the definition of a ‘material’ misrepresentation as required by the applicable law/guidance. Specifically, the false statement was not material because it did not ‘tend to shut off a line of inquiry’ since the information that our Client was presumably intending to hide was available to them in their own internal records.

We submitted a detailed legal brief, together with supporting documentation, to CBP and requested that they review this incident to determine whether they agreed that the Order of Expedited Removal and the underlying charges of inadmissibility had been improvidently issued. After several weeks, we received notification from CBP that they agreed with our analysis and they would update CBP’s records to vacate the Order of Expedited Removal, as well as the underlying charge of inadmissibility under INA §212(a)(6)(C)(i). As a result, our Client is no longer inadmissible to the U.S.