THE LATEST FROM SRW BORDER BLOG

TN’s for Management Consultants Approved after Previous Refusals

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Our office recently successfully reversed denials for two (2) Canadian applicants as Management Consultants (a TN classification).  Both applicants had been faced with similar refusals at pre-inspection locations at Canadian airports – the reason being that CBP officers believed that both applicants were going to be engaged in hands-on managerial duties rather than just acting in an advisory capacity (per the Management Consultant provisions). 

In the first case, the CBP officer suspected that the applicant was attempting to use the Management Consultant classification to circumvent the necessity of an H-1B visa.  Specifically, given that H-1B visas were quickly running out and even if approved, could not begin until October, that the applicant was attempting to use the Management Consultant classification as a bridge until the H-1B would be available.  While the applicant was in possession of a pre-signed management consultant agreement at the time of his denial, he was never provided an opportunity to explain and present his documentation.  At that time, he was allowed to withdraw his application for entry and was refused admission.  

In the second case, the CBP officer suspected that the applicant was truly a manager and did not fit the description of a Management Consultant.  Additionally, CBP denied the applicant admission as a TN because the applicant had set up his own company for tax purposes (however, the company was not his prospective TN employer).  

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ARO's Recent Interpretation of Non-Immigrant Waivers Requiring Specific Non-Immigrant Status

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The Admissibility Review Office (ARO) is the office within U.S. Customs & Border Protection (CBP) responsible for adjudicating non-immigrant waivers of inadmissibility under INA §212(d)(3) from all over the world,  whether the waiver request be from a Canadian citizen filing Form I-192 or from a foreign national who has received a favorable recommendation for a non-immigrant waiver from their Consulate in conjunction with their non-immigrant visa application.

In recent months, the ARO has started taking the position that even if you have a valid unexpired non-immigrant waiver, you may not be able admissible to the United States unless your waiver specifically allows for admission in the status you are seeking to enter.  For example, let’s say a foreign national is in possession of a valid non-immigrant waiver for the general purpose of for “business visits (B-1) or pleasure (B-2)”.  Now let’s assume that the foreign national has an exciting employment opportunity in the U.S. and wishes to enter the U.S. in H-1B, TN or L-1 status.  Well, given the ARO’s current stance, that foreign national will now need to apply for a new waiver, specifically allowing them to enter in the applicable non-immigrant status they are seeking, whether it is H-1B, TN or L-1, etc.

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Obtaining A Copy of Your CBP File by filing a Freedom of Information Act (FOIA) Request

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Question: Dear SRW Border Lawyers,  I am a 40-year-old citizen of Great Britain. Recently, I was denied an F-1 visa pursuant to section 214(b) of the Immigration and Nationality Act (INA). I was under the impression that I had a strong case, but obviously the consulate did not feel the same. During my visa interview, the officer asked me about my previous travels to the U.S. under the Visa Waiver Program (VWP).  The officer’s line of questioning led me to believe that something may have been noted on my record about a previous entry several months ago in February.

In February, I traveled to the U.S. and applied for admission at the Los Angles airport. I was questioned and subsequently sent to secondary inspection where Customs and Border Protection (CBP) proceeded to search my belongings.  When CBP searched my wallet, they found my business card and began to question me about working in the U.S. I flatly denied that I was entering the U.S. to work. I was eventually allowed to enter the U.S., but I fear that CBP may have made a note about this incident in my record, which will make it more difficult to enter the U.S.  How can we contact CBP to see what is in my record?

Answer: Thank you for your question.  Under INA §214(b), “Every alien (with limited exceptions) 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 INA §101(a)(15).”  There are some exceptions to this presumption, but none that apply in your case from what you have stated.

Put another way, under INA §214(b), a foreign national has the burden to prove to the satisfaction of the consular officer that he or she qualifies for the visa they are seeking.  Consular officers apply a two-prong analysis when determining whether a foreign national is eligible for a particular visa. Pursuant to 9 FAM 40.7 N2, a foreign national must: (1) provide sufficient evidence of “ties” to his or her own country to overcome the presumption of immigrant intent, and (2) satisfactorily prove that he or she is entitled to the nonimmigrant status being applied for (e.g. F-1 as in your case).

At this point it, it is likely premature to conclude that your F-1 visa denial was due to a previous incident with CBP. Your denial may have been the result of simply failing to satisfy both prongs of the 214(b) analysis listed above. It is possible, however, that CBP placed an entry in your record that contributed to your denial. Simply put, we do not know. The best course of action is to suspend any travel to the U.S. until we can determine what, if anything, is on your record.

In order to obtain a copy of your file from U.S. Customs & Border Protection (CBP), we can assist you in filing a Freedom of Information Act (FOIA) Request with CBP to request a complete copy of your record. Once we have a copy of your record, we will then be able to determine what steps need to be taken in order to restore your ability to travel to the U.S., whether it be reapplying for a F-1 visa through the U.S. Consulate, following up with CBP to update your records, etc.    

Should you wish to speak to us in further detail regarding your U.S. immigration concerns, please call our office and set up a consultation.  We look forward to hearing from you and being able to assist you with your U.S. immigration matters. 

Best,

The SRW Border Team