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.  

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

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)

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).