I-192, Application For Advance Permission To Enter As Nonimmigrant Approved For Remainder of Unlawful Presence Bar

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

Adjudication Time: 177 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Lester B. Pearson International Airport Toronto in Toronto, Ontario)

Grounds of Inadmissibility: INA §212(a)(9)(B)(i)(II) – Period of Unlawful Presence in the U.S.

Purpose of Entry into U.S.: Business & Pleasure Visits [B1/B2] – Visit with family and friends in the U.S., vacation to the U.S., and attend tradeshows and conventions that are held in the U.S.

SRW Strategy: Evidence of Rehabilitation (no immigration violations since her departure from the United States in 2007; 19 years since the commission of acts forming the basis of her inadmissibility; compliance with terms of previous waiver approval); Establish strong ties to Canada.

Approval Period: Two (2) Years – Covers Client Until 10 Year Unlawful Presence Bar expires in April 2017

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.

CBP finds Canadian Citizen Inadmissible to the U.S. for Unlawful Presence

Dear SRW Border Lawyers,

Question: I am a Canadian citizen who lives in Toronto, Ontario with my husband (who is also a Canadian citizen). I was born in Russia, but I acquired my Canadian citizenship several years ago. Both my mother and brother live in the U.S. and I try to visit them as much as I can. During my last stay in the U.S., I was admitted as a visitor and I stayed for one year; however, CBP did not stamp a date in my passport in which I had to leave. I returned to Canada briefly and then tried to re-enter the U.S. several weeks later. During that entry, Customs and Border Protection (CBP) saw that I was in the U.S. for a year and denied me admission. CBP told me that I was only authorized to say in the U.S. for six (6) months and found me inadmissible for three (3) years. As a Canadian, I thought I could stay in the U.S. as long as I wanted. Is there anything I can do remove my (3) three-year bar? How can I enter the U.S. to visit my family? I do not have any desire to be a U.S. LPR or U.S. citizen; I just want to enter the U.S. to see my family as much as possible.

Answer: Thank you for your question. We frequently encounter Canadians in situations similar to yours. On one hand, you are not given a date certain to leave the U.S., but when you remain in the U.S. past a certain period of time, CBP determines that you have accrued unlawful presence and as such, are subject to an unlawful presence bar under INA §212(a)(9)(B)(i). 

Generally, when a foreign national enters the U.S. on a nonimmigrant visa, they are given an authorized time period in which they may remain. Once that time period has ended, if they have not otherwise sought to extend/change their status, they must depart the U.S.  If they do not depart the U.S., any periods of unlawful overstay could result in an "unlawful presence" bar which may prevent them from re-entering the U.S. for a given time period.   As a Canadian citizen, while exempt from the requirement to obtain a non-immigrant visa to visit the U.S., you could become subject to this unlawful presence bar in certain circumstances.

Based on the facts that you have provided, CBP has found you inadmissible to the U.S. under INA §212(a)(9)(B)(i)(I), which means that you cannot re-enter the U.S. for a three (3) year period without first obtaining a waiver of such inadmissibility.  For information about how Canadians can apply for a non-immigrant waiver of inadmissibility (Form I-192), please click here.  This three (3) year bar applies 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 have voluntarily departed the U.S. prior to commencement of removal proceedings.

However, from the brief information you have provided, it seems that when you were last admitted to the U.S., you were not given a exact date to depart by.  As a Canadian citizen who was not given a date certain to leave the U.S., you would not begin to accrue unlawful presence until one of the following takes place: (1) United States Citizenship and Immigration Services “USCIS” makes a finding that youl have violated your status; or (2) an Immigration Judge makes a determination that there was a status violation. Since it seems neither happened in your situation, I would question whether you are truly subject to a unlawful presence bar.  

In order to determine the next steps for you moving forward, whether it be a non-immigrant waiver to restore your ability to travel to the U.S. or to request that CBP update their records to reflect that you are not subject to an unlawful presence bar, we would need to speak with you to learn more about your particular case facts and review any documents you may have received from CBP when you were denied entry.  If our legal analysis determines that you should not be subject to an unlawful presence bar, then we can prepare a detailed packet to submit to CBP explaining how you could not have legally accrued a period of unlawful presence that would in effect subject you to a unlawful presence bar.

I encourage you to call our office to set up a consultation, so that we can discuss your case in greater detail. We look forward to assisting you with your immigration needs.