THE LATEST FROM SRW BORDER BLOG

Fraud/Misrepresentation Charge of Inadmissibility under INA §212(a)(6)(c) Vacated By U.S. Customs & Border Protection for Canadian Citizen

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Last week, we received a formal letter from U.S. Customs & Border Protection (CBP) confirming that the Expedited Removal Order that had been issued against our client had been modified to vacate the fraud/misrepresentation charge lodged against our client under INA §212(a)(6)(c), which is a huge success for our client and has significant ramifications for her future U.S. immigration options.

In August 2010, our client, a Canadian citizen and former Chinese national, misrepresented to CBP that she was living in Canada, when in fact she had remained in the U.S. after being laid off from her H-1B position.  Our client, an engineer, had first come to the United States in TN status and had eventually changed to H-1B status.  Unfortunately, because of the weak economy, she was laid off from her sponsoring employer, which resulted in her losing her H-1B status.  Instead of returning to Canada, our client remained in the U.S. in hopes of securing new employment, which she was able to do.  However, since she had failed to maintain her non-immigrant status, she was ineligible to change her to status to TN from within the U.S. and needed to depart the U.S. and apply for admission in TN status at a Port of Entry.

While our client was successfully able to obtain TN approval, it was during one of her attempts to re-enter the U.S. that she was issued a Expedited Removal Order under INA §212(a)(7)(A) and INA §212(a)(6)(c).

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My wife and I accumulated several years of unlawful presence, what options are available to us to visit the U.S. now?

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Dear SRW Border Lawyes,

Question: My wife and I are both Pakistani citizens. We first met in the U.S several years after we entered on our B1/B2 visas (at different times).  We ultimately overstayed our visas due to the widespread instability in Pakistan at the time. After we met, we got married, had three children, and lived in the U.S. for 10 more years.

In 2006, after several attempts to gain legal status in the U.S., my wife and I landed in Canada. We have remained in Canada ever since. I have tried several times to apply for a B1/B2 visa to visit the U.S. for business and pleasure, but I have been denied both times.

What options are available to my wife and me to enter the U.S?

Answer: Thank you for your question. Based on the information you provided, it appears that you and your wife entered the U.S. and overstayed your B1/B2 visas. As you may know, once you and your wife overstayed your visas, you both began to accumulate what is referred to as unlawful presence. I cannot say for certain if your unlawful presence was the sole reason for your recent B1/B2 visa denials, but it was most likely a factor. You will have to address your unlawful presence issue if you desire to enter the U.S. anytime soon.

INA § 212(d)(3)(A)(i) Waiver

Moving forward, if you would like to enter the U.S., you will need to apply for a 212(d)(3)(A)(i) waiver to overcome your unlawful presence. Based on the amount of time you were unlawfully present in the U.S., you and your wife are subject to the 10-year bar pursuant to INA § 212(a)(9)(B)(i)(II). The (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 departure.

Parole

If you have an urgent reason to enter the U.S., however, a 212(d)(3)(A)(i) waiver may not be the best option for you. Currently, the processing time for waivers by the Admissibility Review Office (ARO) has been delayed due to understaffing. Therefore, foreign nationals with waivers currently pending beyond normal processing times, and who have an urgent need to enter the U.S., apply for what is referred to as 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.

Form I-192 Nonimmigrant Waiver - Canadians

You indicated in your question that you and your wife are currently landed permanent residents of Canada. Another possible option is to become Canadian citizens. After becoming Canadian citizens, you and your wife may apply for I-192 waivers pursuant to INA § 212(d)(3)(A)(ii) to overcome your unlawful presence. While the discretionary factors remain the same in determining eligiblilty for the Form I-192 waiver, one benefit is that the I-192 waiver application is submitted directly to Customs and Border Patrol (CBP) for adjudication and does not require initial recommendation by a consulate. 

To better understand what option may be best for you and your wife, please call our office and make an appointment to speak with the SRW Border Lawyer Team.

Completing the ESTA Form after Visa Refusal under INA §221(g)

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Question:  When completing the Electronic System for Travel Authorization (ESTA) form, do I have to disclose a recent visa refusal under §221(g) as a visa denial?

Answer:  Yes, when completing the ESTA form, foreign nationals should indicate that they have been denied a visa, even if they had a visa refused under §221(g).  CBP may deem the failure to disclose visa refusals as a misrepresentation under INA §212(a)(6)(c)(i), which has serious adverse consequences on the foreign national’s ability to enter the U.S. in the future, whether as a non-immigrant or as an immigrant. 

If a foreign national is unsure of their status, it is in their interest to consult with an experienced immigration attorney regarding how best to proceed - before unintentionally running afoul of the lifetime bar under INA §212(a)(6)(c)(i).

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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