THE LATEST FROM SRW BORDER BLOG

Can you accrue unlawful presence if admitted as a B-2 and annotated by CBP as "N/C" (Non-Controlled)?

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Question: I am a Canadian citizen. I was recently denied entry into the U.S. because CBP stated that I was inadmissible for a ten-year period due to a previous period of unlawful presence.  

Several years ago, I entered the U.S. in B1/B2 status. On my passport, Customs and Border Protection (“CBP”) did not stamp a date by which I had to depart, but rather CBP stamped my passport with the designation: “N/C”. During that stay, I remained in U.S. for three (3) years (volunteering for my church). 

In April, I tried to enter the U.S. with my R-1 Approval Notice issued by USCIS. After being questioned by CBP, I was denied entry into the U.S. and found inadmissible due to “unlawful presence.” CBP officers informed me that since I overstayed my B1/B2 status, I am now inadmissible to the U.S. for ten (10) years and must apply for a waiver if I want to enter within that ten-year period.

Did I accumulate unlawful presence even though there was no date stamped on my passport telling me when I had to depart the U.S? Will I need a waiver? If so, which one and how long does it take?

Answer: Given the brief facts you have stated, while I can provide you with some general advice, I cannot provide you with a detailed professional analysis without learning more about your case.

Your question about the designation of “N/C” on your passport and its relation to “unlawful presence” highlights how some Canadians are not given a specific date to leave the United States.

Generally, when a foreign national enters the U.S. on a nonimmigrant visa, they are be 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 a "unlawful presence" bar which may prevent them from re-entering the U.S. for a given time period.

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USCIS Centralizes Filing of Overseas I-601 (and I-212) Filings

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USCIS has announced that as of June 4, 2012, foreign nationals filing Form I-601, Application for Waiver of Grounds of Inadmissibility, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, in connection with their applications for a immigrant visa, will mail them to a USCIS Lockbox facility for adjudication by the Nebraska Service Center.

From June 4 to October 4 (first six months), for those foreign national applicants Filing I-601’s in Mexico, they will have the option of filing their applications with either the USCIS Lockbox or with the USCIS Ciudad Juarez Field Office.

Foreign nationals should be aware that this change is separate from the provisional hardship waiver that is currently under a comment period. 

How can my brother visit the U.S. after being denied a visa pursuant to INA § 214(b)?

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Question: Dear SRW Border Lawyers,

I am a United States citizen. I was born in Yemen but moved to the United States after I married my husband. I have been trying to bring my brother to the USA for several years now to visit my family—I have four children who have never met their uncle. I have not seen him in a very long time and I would love for him to come visit me and my family. My brother is 22-years-old and lives in Yemen. Our parents passed away a long time ago, so he has no family where he lives. My brother lives with different friends, is unemployed, and he receives support from close friends and neighbors. He graduated from high school in Yemen, but would like to explore attending university in the United States.

In 2008, he applied for a B1/B2 visitor visa, but he was denied. The letter that accompanied his denial indicated that he was found ineligible for a nonimmigrant visa under INA § 214(b) of the Immigration and Nationality Act.

How can I bring my brother to visit my family and me in the United States?

Answer: Thank you for your question. Based on the information you have provided in your question, it appears that your brother was denied a nonimmigrant B1/B2 visitor visa under INA § 214(b) of the Immigration and Nationality Act. Section 214(b) reads, in part, as follows:

Every alien…[exceptions omitted]…shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) [8 U.S.C.A. § 1101(a)(15)].

Therefore, pursuant to INA § 214(b), all applicants (with limited exceptions) for a nonimmigrant visa are presumed to be entering the U.S. to stay permanently. In addition, INA § 291 places the burden of proof on the applicant at the time of applying for a visa or admission to prove that he or she does not have the intent to stay in the U.S.

In order to be approved for a visa, applicants must prove that they are eligible for the type of visa they are applying for and that they will depart the U.S. at the end of their authorized stay. In doing so, applicants must demonstrate strong social, economic, and/or familial ties outside the United States.

Since your brother applied for his visa at a consulate or embassy in Yemen, it is most likely the case that he was unable to overcome the presumption of immigrant intent during his visa interview with a consular officer. Your question provides information that seems to highlight your brother’s lack of ties to Yemen: no family, no home, no employment, and that he is not enrolled in university. If your brother ever hopes to visit the U.S., he must begin to develop strong ties. The most common way to develop ties include: employment, family, education, and property.

I would encourage you to contact our office to discuss your brother’s case in further detail, and to determine if other options may be available to him other than a B1/B2 visa. For more information about INA § 214(b), visit the following website: http://travel.state.gov/visa/laws/telegrams/telegrams_2173.html.

The I-212 Waiver – An Immigrant Waiver and a Non-Immigrant Waiver

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Foreign nationals who have been ordered deported or removed from the U.S., have been issued an expedited removal order, or who have violated the terms of a voluntary departure order by not timely departing the United States, have common questions – Can they ever re-enter the United States? Do they have to wait for 5 or 10 years before they can re-enter the United States? Can they ever obtain their permanent resident status (i.e. green card)?

These foreign nationals have the same dilemma – as a result of being previously deported or removed from the U.S., or having been issued a expedited removal order, or who have violated the terms of a voluntary departure order by not timely departing the United States, are inadmissible to the United States for a specified period of years under INA § 212(a)(9)(A).

The good news is that these foreign national’s do have options available – whether it be to obtain non-immigrant status (i.e. B-1/B-2, H-1B, E, F, L, etc.) or immigrant status (i.e. green card).  While each foreign national’s situation is different in terms of the benefits they are seeking and how soon they can apply for a waiver, in most situations, an experienced attorney who has extensive experience in waivers (such as SRW Border Lawyers) will be able to provide the foreign national with a good idea of when they should consider applying for the waiver. Not only that, SRW Border Lawyers can help the foreign national determine how to coordinate their waiver application with their non-immigrant and immigrant applications to allow for the smoothest possible process.  Additionally, our team also analyzes the previous removal order to determine whether there is any legal and/or factual basis to challenge the removal order itself. 

Should the foreign national wish to re-enter the U.S. prior to the end of their inadmissibility bar, they do have a option – they may apply for permission to reapply for admission into the U.S. by submitting Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, to the appropriate agency (dependent on the circumstances of the removal and the purpose for which entry is being sought). Luckily, unlike some other waiver applications, the I-212 application is a one time application and is valid for both immigrant and non-immigrant purposes.

If you are a foreign national who has been previously ordered removed, been issued an expedited removal order and/or violated the terms of a voluntary departure order, please contact our office to schedule a consultation with our experienced attorneys.