Last fall, we had a multinational company approach us about a Canadian employee who had just been denied entry into the U.S. as a Business Visitor. Besides being denied entry, he was also charged with inadmissibility for fraud and told that he required a waiver to enter the U.S. in the future for any entries. The company was put in a difficult position because they had been in the process of determining whether to proceed with a TN application or an L-1B application given the employee’s highly specialized skillset and need for his services in the U.S. The need for a waiver would jeopardize their plans for moving forward, as well inhibit their ability to use the employee to his maximum efficiency.
As it stood, the finding of fraud made the employee inadmissible for the rest of his life. He would have to obtain a non-immigrant waiver (Form I-192) from CBP’s Admissibility Review Office (ARO) before entering the U.S. for any purpose in the future. The non-immigrant waiver can be approved for as little as six months to a maximum of five years, which meant he would likely require multiple applications in the future. In addition, the non-immigrant waiver application carries a hefty filing fee (currently, $585 and proposed to increase to $930). Lastly, processing times can vary from 4-6 months for the ARO to adjudicate the application. (I-192’s must also be submitted with a RCMP Report which is currently taking 2-4 months to obtain.)
In reviewing this matter, our first step was to review the incident to see if the charge of fraud was legally and factually substantiated. If it was, then the employee would require a waiver. If it was not, we would submit a request to CBP to review the incident and address the legal error that had occurred.
Our research included discussing the inspection with the employee in detail and to the best of his recollection – what was asked of him, how he answered, what was the purpose of his trip, etc. We also thoroughly reviewed the record of proceedings – the sworn statement that CBP used to charge the employee with inadmissibility for fraud. Our analysis determined that while CBP may have been correct in denying the employee admission, the charge of fraud was not factually or legally substantiated. Specifically, CBP questioned the employee about any previous denials to the U.S. and any previous advisable by CBP to obtain non-immigrant work authorization (H-1B). Having traveled to the U.S. for a couple of decades now and being unable to recall specifics, the employee answered “No” to both questions. However, CBP’s own records indicated that the employee had been previously denied admission and previously been advised to obtain non-immigrant work authorization. CBP found his answers of “No” to rise to the level of fraud since he was being evasive and not forthcoming.
Our office submitted a request to CBP at the Port of Entry where the incident occurred requesting that the charge of fraud be removed from the employee’s records since it was improvidently issued. In our legal brief, we pointed out that the employee’s inability to recall specific advisals and/or denials spanning several decades did not meet the legal definition of ‘fraud’ or ‘material misrepresentation’. In addition, we also pointed out that his ‘false’ answers were not ‘material’ since they did not ‘tend to shut off a line of inquiry’ since CBP had the answers to those questions available to them through our own records.
In CBP’s initial response to our office, they asked us to forward our request to the ARO and said they could not review the matter. We insisted that the ARO, and CBP in general, has consistently advised that issues such as these should first be directly brought to the Port of Entry where the incident occurred. We also confirmed that the Port Director had the ability and discretion to review our request and submitted sample letters we have been able to obtain in the past when a fraud charge was vacated by CBP.
Shortly after this submission, we received a letter from CBP confirming that the fraud charge had been withdrawn per our request and the employee was no longer inadmissible for fraud. A few weeks later, the company proceeded to prepare the employee’s L-1B application and asked us to accompany the employee to apply for the L-1B at our local Port of Entry in Buffalo, New York. We accompanied the employee earlier this week and are happy to note that he was approved for his L-1B, without any issues on the merits of the L-1 or the previous fraud finding.