Are you really inadmissible?

When a Client comes to us after being advised by U.S. Customs & Border Protection or another entity that they require a waiver in order to overcome their inadmissibility, the first step that we always undertake is to ensure that a waiver really is required for the individual to accomplish what they are seeking. If we determine that a waiver is in fact necessary, we then discuss the merits of the waiver application itself with the client.

In matters relating to inadmissibility relating from a criminal incident, once we review the facts, we will want to review the associated criminal documents (police report, charging document, certificate of disposition, etc.), as well as the statute(s) that the individual was convicted under as it existed at the time of the conviction.

Once we have all the information necessary, our firm reviews the following issues to determine whether or not the Client truly does require a waiver:

• Does the Client actually have a "conviction" as defined under immigration law?
• If the Client does have a conviction, does it render them inadmissible? (For example, if they are alleged to be inadmissible for a Crime Involving Moral Turpitude - is the conviction actually for a CIMT?)
• If the Client does have a conviction rendering them inadmissible, do they qualify for any exceptions (Petty Offense Exception or Juvenile Exception) that would waive the inadmissibility?

If at any point during our analysis we find sufficient legal and factual grounds to determine that the Client is not inadmissible and therefore does not require a waiver, we would propose a strategy to the Client to prepare a submission to the appropriate agency demonstrating why they do not require a waiver.

What's the point of this review? Just because a foreign national has been told they require a waiver, they should still seek experienced legal counsel to confirm they do in fact require a waiver.

Port Of Entry Parole Issued to Canadian Citizen While Awaiting Adjudication of Non-Immigrant Waiver Application from the ARO for Issuance of E-2 Derivative Visa

Last month, we were contacted by our prospective client’s wife after she had been struggling for a couple of months in the U.S. trying to run her newly established U.S. business (a restaurant, which forms the basis of her E-2 status) and single-handedly taking care of her minor children, all without her husband’s assistance. Sadly, he had been denied an E-2 visa through the U.S. Consulate in Toronto and was awaiting a decision from CBP’s Admissibility Review Office (ARO) regarding his pending non-immigrant waiver application in conjunction with his E-2 visa.

As background, our client, a Canadian citizen, is admissible under INA §212(a)(2)(A)(i)(I) [Crime Involving Moral Turpitude] as a result of a criminal conviction in Canada in the mid 2000’s (Fraud over $5,000). He had previously applied for a non-immigrant waiver through the ARO by filing a Form I-192, Application for Advance Permission to Enter as Nonimmigrant, which had been approved by the ARO in July 2013 for a period of one (1) year. At the time he appeared for his E-2 visa interview at the U.S. Consulate in Toronto with his family, our client was in possession of a valid waiver on Form I-194. Sadly, he did not realize that he would need to obtain a new non-immigrant waiver, annotated on his E-2 visa (i.e. his Form I-194 could not be used in conjunction with his E-2 visa). He was further set aback when he realized that the ARO is currently taking 4-6 months to adjudicate non-immigrant waiver recommendations forwarded from U.S. Consulates worldwide.

Not wanting to interrupt the older child’s schooling and needing to get established in Florida to commence managing the business, our client’s wife and children relocated to Florida while they waited for our client to join them. However, as time went on, our client’s wife was having an increasingly difficult time managing the new business and taking care of her children, who was quite distraught over their father’s absence. The couple had invested their life savings into this U.S. business and had almost ten (10) employees at the U.S. business – and had major plans for renovations. Unfortunately, this was all quickly coming into jeopardy as our clients absence from his family’s life was causing untold anguish to the family. At this point, the wife was honestly considering whether she would need to close her business, lay off her employees, and return to Canada to reunite her family.

In a last attempt, our client’s wife contacted us to see whether there were any interim solutions or if the process could be expedited. Sadly, we told her that we did not feel that the ARO would expedite handling the waiver. However, given the previous waiver approval by the ARO and the current favorable recommendation to the ARO, the jeopardy that the U.S. business and its employees were in, the stress that the family was under, and the well-known processing times of the ARO, we believed that it would be feasible to apply for a short-term port of entry parole in order to allow her husband to enter the U.S. to be with the family. We explained the highly discretionary nature and the limited parameters of the parole. He would not be in E-2 status and thus, would not be able to work (E-2 Derivative Spouses are able to apply for EAD’s). It would be a single entry parole. However, ideally, if approved, it would be long enough to allow the ARO to adjudicate his non-immigrant waiver application and ultimately, allow the Consulate to issue his E-2 visa.

Our client asked us to proceed and we submitted a detailed packet to CBP outlining our request for parole. We cited to the favorable factors in his case (especially that he had a previous waiver approval, a current recommendation from the Consulate for a waiver approval, and that there had been no material changes in his inadmissibility) and asked them to exercise discretion in granting this port of entry parole. Ultimately, the parole request was granted and the family is now reunited in Florida while the non-immigrant waiver application remains pending at the ARO.

Port Of Entry Parole Issued To Canadian Citizen To Attend Family Wedding

Earlier this month, our office assisted a client, a Canadian citizen, in obtaining a port-of-entry parole so that she could enter the U.S. for four (4) days to attend a family wedding and participate in various wedding festivities. While these activities are perfectly permissible B-2 (visitor for pleasure) activities, our client could not enter the U.S. in B-2 status because she is inadmissible to the U.S. and does not have a valid non-immigrant waiver. While a port-of-entry parole is not to be used as a means of circumventing the non-immigrant waiver process, in various circumstances, CBP can discretionarily exercise their authority to parole an individual into the U.S.

As background, after years of traveling to the U.S. without incident, our client unexpectedly learned of her inadmissibility last year due to two criminal convictions in Canada from the early 1990’s (‘Fraud Over $1,000’ – writing bad checks). Upon learning of her inadmissibility, she promptly began working with a company to prepare her non-immigrant waiver application, which included obtaining her RCMP Report, as well as requesting the necessary court records relating to her convictions. Despite her proactive actions, it wasn’t until a few weeks ago that she finally received her waiver application packet from the company she had hired.

Prior to submitting her non-immigrant waiver application, our client contacted our office and scheduled a consultation to ask a few questions about the filing process at the Port of Entry, adjudication timelines, expedite possibilities, etc. During the consultation, we answered our clients questions but gave her the disappointing news that currently, the Admissibility Review Office (ARO), which is responsible for reviewing these applications, is taking 4-6 months to adjudicate these applications, and we did not believe an expedite request would be granted in her case. Accordingly, unless she is able to secure another lawful means of entering the U.S. for her cousin’s wedding, she would not be able to attend this important and long-awaited family event. We then went on to explain that she could have one option – we could attempt to apply for a port-of-entry parole on her behalf to let her enter the U.S. for a few days. We explained the highly discretionary nature of the request, the importance of complying with its terms if granted and explained our strategy – we would outline how our client unexpectedly learned of her inadmissibility, explain and document her attempt to timely obtain a non-immigrant waiver, confirm her only ground of inadmissibility was a result from her convictions in the 1990s and she had never again violated any laws, and that she had strong ties to Canada and was a productive and contributing member of society.

CBP reviewed the parole request and ultimately, approved our client’s request for a port-of-entry parole, which allowed her to attend the family wedding – a fact that she, the bride, and the rest of the family was quite elated about.

Form I-212, Application For Permission To Reapply For Admission Into The United States After Deportation Or Removal Approved

Application Type: I-212

Adjudication Time: 84 Days

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

Grounds of Inadmissibility: INA § 212(a)(9)(A)(i) - Alien previously removed pursuant to an Order of Expedited Removal under INA §235, solely under INA §212(a)(7)

Purpose of Entry into U.S.: Business & Pleasure Visits – business purposes, vacation with his family, and maintain investment real estate property in the U.S.

SRW Strategy: Evidence of Rehabilitation (demonstrated remorse, rehabilitation and compliance with Canadian & U.S. laws)