Port Of Entry Parole Issued to Canadian Citizen While Awaiting Adjudication of Non-Immigrant Waiver Application from the ARO for Issuance of E-2 Derivative Visa

Last month, we were contacted by our prospective client’s wife after she had been struggling for a couple of months in the U.S. trying to run her newly established U.S. business (a restaurant, which forms the basis of her E-2 status) and single-handedly taking care of her minor children, all without her husband’s assistance. Sadly, he had been denied an E-2 visa through the U.S. Consulate in Toronto and was awaiting a decision from CBP’s Admissibility Review Office (ARO) regarding his pending non-immigrant waiver application in conjunction with his E-2 visa.

As background, our client, a Canadian citizen, is admissible under INA §212(a)(2)(A)(i)(I) [Crime Involving Moral Turpitude] as a result of a criminal conviction in Canada in the mid 2000’s (Fraud over $5,000). He had previously applied for a non-immigrant waiver through the ARO by filing a Form I-192, Application for Advance Permission to Enter as Nonimmigrant, which had been approved by the ARO in July 2013 for a period of one (1) year. At the time he appeared for his E-2 visa interview at the U.S. Consulate in Toronto with his family, our client was in possession of a valid waiver on Form I-194. Sadly, he did not realize that he would need to obtain a new non-immigrant waiver, annotated on his E-2 visa (i.e. his Form I-194 could not be used in conjunction with his E-2 visa). He was further set aback when he realized that the ARO is currently taking 4-6 months to adjudicate non-immigrant waiver recommendations forwarded from U.S. Consulates worldwide.

Not wanting to interrupt the older child’s schooling and needing to get established in Florida to commence managing the business, our client’s wife and children relocated to Florida while they waited for our client to join them. However, as time went on, our client’s wife was having an increasingly difficult time managing the new business and taking care of her children, who was quite distraught over their father’s absence. The couple had invested their life savings into this U.S. business and had almost ten (10) employees at the U.S. business – and had major plans for renovations. Unfortunately, this was all quickly coming into jeopardy as our clients absence from his family’s life was causing untold anguish to the family. At this point, the wife was honestly considering whether she would need to close her business, lay off her employees, and return to Canada to reunite her family.

In a last attempt, our client’s wife contacted us to see whether there were any interim solutions or if the process could be expedited. Sadly, we told her that we did not feel that the ARO would expedite handling the waiver. However, given the previous waiver approval by the ARO and the current favorable recommendation to the ARO, the jeopardy that the U.S. business and its employees were in, the stress that the family was under, and the well-known processing times of the ARO, we believed that it would be feasible to apply for a short-term port of entry parole in order to allow her husband to enter the U.S. to be with the family. We explained the highly discretionary nature and the limited parameters of the parole. He would not be in E-2 status and thus, would not be able to work (E-2 Derivative Spouses are able to apply for EAD’s). It would be a single entry parole. However, ideally, if approved, it would be long enough to allow the ARO to adjudicate his non-immigrant waiver application and ultimately, allow the Consulate to issue his E-2 visa.

Our client asked us to proceed and we submitted a detailed packet to CBP outlining our request for parole. We cited to the favorable factors in his case (especially that he had a previous waiver approval, a current recommendation from the Consulate for a waiver approval, and that there had been no material changes in his inadmissibility) and asked them to exercise discretion in granting this port of entry parole. Ultimately, the parole request was granted and the family is now reunited in Florida while the non-immigrant waiver application remains pending at the ARO.