SRW Border Lawyers Successfully Guides Client Through Removal Proceedings & I-192 Waiver Process

Background: Client, a naturalized Canadian citizen, initially approached SRW after she was placed in removal proceedings. CBP Officials placed Client in removal proceedings because she had attempted to enter the U.S. without a waiver after CBP Officials had previously advised her that she was inadmissible pursuant to INA § 212(a)(2)(A)(i)(I) and INA § 212(a)(6)(C)(i) and required a waiver. Notably, Client had initially been informed of her inadmissibility when she was only a permanent resident of Canada and mistakenly believed that she no longer required a waiver to enter the U.S. since she was now a Canadian citizen.

With the assistance of SRW, Client admitted to the factual allegations of her Notice to Appear and conceded her removability. SRW also prepared a Motion to Withdraw Application for Admission on Client’s behalf, which ultimately was granted by the Immigration Judge.

Following the conclusion of Client’s removal proceedings, Client retained SRW to assist her with obtaining a nonimmigrant waiver to overcome her inadmissibility to the U.S.

Grounds of Inadmissibility: INA § 212(a)(2)(A)(i)(I) – Two (2) Theft Convictions that occurred over nineteen (19) years ago; and INA § 212(a)(6)(C)(i) – Misrepresentation stemming from her failure to disclose her criminal convictions on a B1/B2 visa application over ten (10) years ago.

SRW Waiver Strategy: Evidence of Rehabilitation (no criminal issues since 1997, no immigration issues since being placed in removal proceedings in 2010, demonstrated remorse, productive member of community); Compelling reasons for entry (many family members living in the U.S. including her only living parent, siblings and extended family members).

Application Type: I-192, Application for Advance Permission to Enter as Nonimmigrant

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry in Buffalo, New York)

Purpose of Entry into U.S.: Business and Pleasure Visits [B-1/B-2]

Adjudication Time: 240 Days

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.

SRW Border Lawyers Successful in Vacating Fraud Charge for Canadian Citizen Based on Legal Insufficiency

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.

I-192 Waiver Approved For Canadian Citizen For Five Years

Application Type: I-192

Adjudication Time: 139 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Houlton Port of Entry in Houlton, Maine)

Grounds of Inadmissibility: INA §212(a)(6)(C)(i) – Misrepresentation (Filed a false claim for asylum in the mid 1990s)

Purpose of Entry into U.S.: Business and Pleasure Visits [B1/B2] or Employment in O-1, H-1B, L-1 or TN

SRW Strategy: Evidence of Rehabilitation (nearly 20 years since the commission of acts forming the basis of his inadmissibility, compliance with terms of previous waiver approvals, firmly settled in Canada).

Approval Period: Five (5) Years