Fraud/Misrepresentation Charge Successfully Vacated for Young IT Professional

Recently, SRW Border Lawyers was successful in having a charge of fraud/misrepresentation removed from a client’s CBP Records after six months of ongoing advocacy with CBP Officials. This marked a huge victory for our client since our client is a young professional in the IT industry and the life-time bar to the U.S. would have negatively impacted his future employment prospects in an age where global mobility is increasingly attractive.

As background, the client had first approached us after having submitted a TN application at a CBP Pre-Flight Inspection in Canada. The client had been seeking to be admitted as a TN (Scientific Technician – Engineering category) based on an offered position with a prominent IT start-up in the U.S. Ultimately, however, the client was allowed to withdraw his application for admission in lieu of a denial and issued a Form I-275, Withdrawal of Application for Admission.

Unfortunately, there was also a notation made in his CBP Record that he was being found inadmissible under INA §212(a)(6)(c)(i) [Fraud/Misrepresentation]. This would mean that if the client ever wanted to enter the U.S. in the future, he would require a non-immigrant waiver [Form I-192, Application for Advance Permission to Enter as Nonimmigrant] to do so – whether it be for a shopping trip, to transit through the U.S. on an international trip, or to seek temporary employment in the U.S., etc.

After the TN application incident, the client was understandably confused and anxious. He wanted to understand what had happened and the immigration consequences he was being faced with and how to resolve the situation. He proceeded to schedule a consultation with our office.

During the consultation, we discussed the TN application incident at length with the client. We asked for detailed feedback on what had transpired, what was asked of him, what he said and what he understood of the incident/application process. We also thoroughly reviewed the TN materials that had been prepared for him by the U.S. company’s immigration counsel, as well as the record of proceedings [referred to as a Sworn Statement] that CBP had prepared during the TN application incident.

During our review, we learned that the basis of the fraud charge was that there were differences in the TN Letter that was prepared in support of the TN Application and the actual Offer Letter that had been provided to the client (which CBP found while searching the client’s belongings during inspection). Specifically, the letters listed different job titles and different supervisors, but listed the same job duties. Both letters were actually accurate – the Offer Letter was the company’s internal job title for the proffered position and that the client would report to Mr. M. The TN Letter listed the client’s job title to better delineate the specific TN category being sought, and confirmed the degreed engineer that the client would be directly supervised by as Mr. S. However, those very differences led the CBP Officers to conclude that the contents of the TN Letter were fraudulent and materially misrepresented the true facts of the employment position being offered. This led to the finding of inadmissibility under fraud for the client.

At the conclusion of our review, we determined that the fraud/misrepresentation charge was legally erroneous and factually unsupported. The differences in the letters neither amounted to ‘fraud’ or ‘material misrepresentation’ as defined under INA § 212(a)(6)(C)(i) – especially since they were both accurate.

Our recommendation to the client was to file a request with CBP asking them to remove the notation of inadmissibility for fraud/misrepresentation. We explained that there was no formal appeal process, but it was possible to ask CBP to take a second look at the record. The client asked us to proceed.

Our office then drafted and submitted a detailed legal brief, together with supporting documentation, to CBP at Pre-Flight Inspection where the TN Application Incident had occurred. In our legal brief, we addressed and explained the differing job titles listed in the TN Letter and Offer Letter, as well as the differing supervisors/degreed engineers listed in the TN Letter and Offer Letter. We pointed out that the representations made in the TN Letter were accurate and while they facially differed from the Offer Letter found in the client’s belongings, the TN Letter was materially correct and properly outlined the client’s eligibility for TN status under the Scientific Technician – Engineering category. We also pointed out that the differing job titles in the Offer Letter and TN Letter were immaterial because the job duties in both were substantially the same. The facts did not equate to the type of facts that would support a finding of fraud/misrepresentation, which carried lifetime consequences for our young client.

A few weeks after submitting our request, we began placing follow-up inquiries to confirm that the matter was being reviewed. Eventually, we were able to have telephone conferences with the Acting Port Director at the CBP Pre-Flight Inspection where the incident had occurred. The telephone conferences were instrumental in being able to address CBP’s concerns with our request, add further context to the written submission and gave us an opportunity to further advocate on the client’s behalf.

Between our written submission and our telephone conferences, we were successful in having the notation of inadmissibility for fraud/misrepresentation removed from our client’s record. Our client can now resume traveling to the U.S. and/or pursue employment opportunities in the U.S., all without the hassle of needing a non-immigrant waiver.