Can I omit information about my spouse on the I-192 waiver application? I fear any information I provide on my application may lead to a finding of inadmissibility against her.

Question:

Dear SRW Border Lawyers, I came across your website while looking for information on filing a Form I-192 waiver. I notice that your company has deep experience in filing these types of waivers. To make a long story short, I was living in the United States in H1-B visa and then fell out of status, but remained in the United States for a long period of time. Later, I moved to Canada after receiving permanent resident status. I am now a Canadian citizen. Last year, I applied for a B1 visitor visa and tried to visit the US; however, when I applied for admission into the United States, I was stopped, questioned for a long period of time, and then expedited removed. I believe the officer at the time thought that I was trying to immigrate permanently to United States (which I was not). I have no criminal record anywhere in the world, and I am very happy living in Canada. I just wanted to visit friends and family in the United States.

My wife and children, who are also Canadian citizens, are able to travel to United States without any problems even though they too overstayed the same length of time that I did. As such, my wife is very particular about not including her name on any Form I-192s, which I may file to overcome my inadmissibility. My wife fears that her ability to travel will be impacted if her name goes on any waiver. This is the biggest reason holding me back from filing the Form I-192 for the past 10 years.

My concerns are as follows: (1) Can I omit the information about my spouse and marriage from any papers that I file with the government; and (2) will the Department of Homeland Security (DHS), Customs and Border Protections (CBP), or Admissibility Review Office (ARO) insist on having details about my wife on the waiver application?

Answer:

We would be more than happy to assist you with your immigration matter. In your email you asked if you could omit information about your spouse and marriage details when applying for a Form I-192, Application for Advance Permission to Enter a Nonimmigrant (“Form I-192”). In general, you should never omit required information from any document you file with the government. Thus, you must complete all applications, forms, and petitions truthfully. Failure to do so could subject you to a finding of fraud/misrepresentation pursuant to INA § 212(a)(6)(c), which is a lifetime bar to entering the United States.

Based on the information you provided in your email, we are not entirely sure that you need a Form I-192 waiver at this point. First, as you already may know, if you lived in the United States without any status after a certain period of time you began to accumulate unlawful presence. Based on the amount of unlawful presence you accumulate, the longer you are barred for reentry into the United States (i.e., 3 year bar vs. 10 year bar). If, however, you already remained outside the United States for more than 3 years or 10 years period (depending on your bar) you may no longer be inadmissible for unlawful presence.

You state in your email that you were issued an expedited removal order, which would bar you from entering the United States for five (5) years. Fortunately, from what you indicated, it appears that you were not issued an expedited removal order pursuant to INA 212(a)(6)(C), so you are likely not subject to a lifetime bar. Also, if 5 years has passed since the order was issued against you, you are likely no longer barred as a result of that order.

Finally, and this may be the greater troubling aspect, is that you state that your wife accumulated the same amount of unlawful presence as you did. If this is the case, your wife may need a waiver, even though she has been entering the United States without incident. This issue should be addressed, so that she does not experience any adverse immigration consequences in the future.

At this point, there is not enough information to determine if you or your wife requires a waiver, and if so, which ones. Thus, in order to properly assist you, I would strongly encourage you to set up a consultation to speak with the SRW Border Lawyer team to fully discuss these issues.

I was stopped at the border and issued an expedited removal order. I have been living in the U.S. for the past 10 years and now I am barred from returning to my home. What can I do?

Question: I was stopped at Rainbow Bridge on December 30, 2012 and was sent to secondary where I was questioned for hours. I was told by officers that I would not be allowed to enter the United States and fly back to California. I have been living in California for the past three years with my fiancé. Now, officers at the Rainbow Bridge told me that I “overstayed” and that I misrepresented myself. I was presented with a document that indicated I was barred from entering the United States for five years. I have read your blog listing many cases with hopeful options. I understand that I will need waiver(s) and was hoping I would be able to parole in for a short entry to at least put my belongings in storage (these are my belongings accumulated over my entire life that I worked hard for). I would also like to see my fiancé who is in a very emotional unstable place right now without my support and care. What are my best options? When officers questioned me, I was shocked, very nervous, and scared. This has never happened to me in all of my travels back and forth from the United States and Canada.

Answer: Thank you for your question.

Based on your email, it seems that CBP is alleging that you may have accumulated unlawful presence and is charging you with misrepresentation. We have had a considerable amount of success in resolving these issues – whether through a waiver or through requests that CBP review their previously issued decision; however, each strategy is developed on a case-by-case basis, so this is the reason why we highly encourage a consultation.

Unlawful Presence

Generally, when an individual is in the United States without proper permission/status they begin to accumulate “unlawful presence.” A (3) three-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of “more than 180 days but less than one year,” and a (10) ten-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more and who seeks admission within 10 years of his or her removal. While there are some exceptions, we do not know if any apply to you at this time without further reviewing your immigration history – especially since you indicated that you have frequently traveled back and forth from Canada in the past and you are a Canadian citizen who was likely given a ‘soft inspection’ on many instances.

Misrepresentation

Generally speaking, anyone who attempts to enter the United States through fraud/misrepresentation can be found inadmissible pursuant to INA § 212(a)(6)(C)(i). The penalty for willful misrepresentations is a lifetime bar to the United States, unless the foreign national is successfully able to have the fraud charge vacated or obtains a waiver of this ground of inadmissibility.

Expedited Removal Order

You indicated that CBP issued you a document stating that you were banned for five years from re-entering the U.S. More than likely, you were issued an Expedited Order of Removal, which is an ‘informal’ removal process which prevents you from re-entering the U.S. for a period of five years or until you are able to obtain a waiver of the same.

Parole

In your email you mention applying for parole. Parole is a legal fiction that allows for the physical entry of an individual into the United States without actually "admitting" him or her into the country. Parole is commonly used to allow otherwise inadmissible individuals to enter the country for specific reasons, for a limited period of time and usually involves a degree of urgency. Recently, Customs and Border Protection ("CBP") has been less willing to extend parole to anyone who does not meet a higher threshold of "humanitarian need."

Since you seem eager to understand what options may be available to you, I strongly encourage you to call our office at your earliest convenience and set up a consultation to speak with the SRW Border Lawyer team. A consultation will give us an opportunity to look closely at each aspect of your case and develop a strategy for you that addresses your unique and specific immigration matters, as well as meets your short-term and long-term goals. We look forward to hearing from you.

Q: How will Unlawful Presence Affect the green card process?

Q:   Dear SRW Border Lawyers,  I am a U.S. citizen born in New York. My husband was born in Guatemala and entered the United States without being inspected in 2001, and has never left the country since that time. We met in 2004 and were married in 2007. We have two children that were born in the U.S., a son, 3, and a daughter, 8. My husband would now like to pursue a green card. How will his illegal entry and lengthy presence in the country without any status affect his chance of getting a green card process?

A:   Thank you for your question. Based on the information you provided in your question, there are several issues that need to be addressed before your husband can proceed with applying for a green card.  While I cannot give you a complete detailed analysis of your options without learning more about your husband’s history, I can provide you with some general information that may be helpful.

First, since your husband last entered the U.S. without being properly inspected, he is ineligible to adjust his status to that of a green card holder from within the U.S. and would require an immigrant visa from a U.S. Consulate in Guatemala.  In order to apply for this immigrant visa, he would need to depart the U.S. and appear for his immigrant visa interview in Guatemala.  Unfortunately, since your husband has lived in the U.S without status for such a long period of time, when he departs the U.S., he would become subject to a (10) ten-year bar unlawful presence bar. The (10) ten-year unlawful presence bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more, who then depart the U.S. and are attempting to re-enter the U.S.  Thus, once he leaves the United States, his departure will trigger the bar and he will not be able to enter the country for ten (10) years without a waiver.

In order to overcome the unlawful presence bar, your husband will need an I-601 waiver. The waiver must establish that you and/or your children (all U.S. Citizens) will suffer “extreme hardship” if your husband is not able to reenter the country and/or you and the children were attempt to live with him in Guatemala until his unlawful presence bar expired. Extreme hardship can be demonstrated in many ways; however, evidence of mental health issues resulting from a loved ones inability to enter the U.S., such as depression and anxiety, is particularly effective.  For detailed information about the I-601 waiver process, please visit our I-601 waiver page. 

As far as the process to file, your husband would submit the I-601 waiver application to overcome his inadmissibility at his immigrant visa interview. The catch, however, is that the waiver is difficult to obtain, and loved ones are often separated for long periods of time while the waiver is adjudicated. Recently, the United States Citizenship and Immigration Service (“USCIS”) proposed a rule that may be applicable in your case, assuming that your husband’s only ground of inadmissibility is unlawful presence.  You may read more about this provisional hardship waiver process currently under consideration by clicking here (please note that this rule is not currently in effect). 

If your husband is denied his immigrant waiver at his immigrant visa interview, there may be little else that could be done in the near future for him to return to the U.S. Therefore, it is imperative that you immediately consult with an experienced immigration attorney to understand your options moving forward, the risks involved, and to discuss the merits of a possible extreme hardship waiver application.

Q: What are the consequences of an illegal entry into the U.S?

A: As a foreign national who entered the U.S. without inspection ("EWI"), you are subject to removal under the immigration law. You are also accumulating unlawful presence in the U.S. Individuals who have accumulated periods of unlawful presence and then depart the U.S. face bars to re-entry, the length of which depends on how long the individual was unlawfully present. If you were unlawfully present in the U.S. for a period of less than 180 days (6 months), then you do not face a bar to returning. If you were unlawfully present in the U.S. for a period greater than 180 days but less than one year before departing the U.S., you face a three (3) year bar. if you have been unlawfully present in the U.S. for a period of one (1) year or more and depart the country, you will face a ten (10) year bar.