Domestic Worker Who "Jumped the Gun" is Forgiven by Customs and Border Protection

A Canadian Domestic Worker who had worked for a Canadian family for over 15 years had entered the United States only as a B-2 in order to prepare her own family for the upcoming temporary transfer to the U.S. (i.e. find housing, locate a school for the Domestic Worker’s child, etc.) , with the intention of simply resuming her Domestic Worker duties once the Canadian family entered the U.S. in H-1B status. Unfortunately, the Domestic Worker believed that she could remain in the U.S. in B-2 status while commencing her employment duties as a Domestic Worker [which is a permissible B-1 activity, but not a permissible B-2 activity] and simply apply for B-1 Domestic Worker upon her subsequent re-entry into the U.S.

Unfortunately, the Domestic Worker learned the error of her ways when she attempted to re-enter the U.S. and was denied entry. While chastising her for commencing her B-1 activities without first properly obtaining B-1 status, CBP also questioned whether her daughter, a Canadian citizen, had a right to attend a public school while she was accompanying her mother to the U.S., with her mother being the principal B-1 Domestic Worker and the daughter having derivative B-2 status.

Our research, supported by various provisions of the Foreign Affairs Manual, gave us the ability to demonstrate to CBP that the daughter, whose sole purpose of being in the U.S. was to accompany her mother, was allowed to attend public school as a B-2 derivative. After advocacy on our firm’s part, fortunately, the Domestic Worker was admitted as a B-1 Domestic Worker and her daughter was admitted and documented as a B-2, permitting her to attend public school.

Canadian Border Crossing Card [A Life Time D-3 Waiver Still Worth its Weight in Gold]

In its discretion, legacy Immigration and Naturalization Service (INS), which is the predecessor of the current Department of Homeland Security (DHS), utilized the Canadian Border Crossing Card (CBCC) as a lifetime non-immigrant waiver authorization for Canadians, who are visa exempt. The CBCC’s were issued to Canadian citizens who had shown a high level of rehabilitation and had been approved for several waivers prior to the issuance of the CBCC. The greatest benefit of the CBCC is that it was issued for life and a Canadian who was seeking to come into the United States, whether for business or pleasure, would not have to apply for a waiver in advance of his or her entry.

Currently, all nonimmigrant waivers (NIVW) are handed by the Administrative Review Office (ARO), a subset of U.S. Customs & Border Protection, and the maximum validity of waivers issues by the ARO are five (5) years. Initially, however, the ARO will not issue a five (5) year visa and will restrict it to one year or less and eventually go up until they issue the maximum validity of five (5) years (as an individual demonstrates continuing compliance with U.S. immigration laws).

In addition to the CBCC being a lifetime waiver, the current processing time by the ARO for nonimmigrant waiver applications can take more than six to eight months! This further adds stress in planning logistics for Canadians seeking to enter the United States for business or pleasure. Hence this blog’s title – why the CBCC is worth its weight in gold - if you have one, you no longer have to deal with the ARO.

Interestingly, although the CBCC is no longer issued, those that were fortunate enough to have had one issued previously, and who may have subsequently lost/misplaced their CBCC, can apply for a replacement through the ARO.

If you are one of those fortunate Canadians who was previously issued a CBCC and you have lost/misplaced your CBCC or still have your CBCC and have questions about its continued validity, feel free to call our office and speak with one of our lawyers in a confidential consultation.

My daughter needs to enter the United States for urgent medical care, but my wife (her primary care-taker) is inadmissible. How can my wife enter the United States to be with our daughter?

Question:

My wife and I are both citizens of Australia. We have four children. Our oldest child was born in 2001 with serious medical problems. Since her birth, she has been required to seek medical treatment on a regular basis. Recently, my daughter was accepted to participate in a revolutionary stem-cell treatment program with a doctor in the United States that may improve her condition. It is a one week treatment, but my wife and I would like to remain in the United States for a total of three weeks: one week to get my daughter settled into the program; one week for the actual treatment; and then one week to be in the presence of her doctors to ensure that treatment went well and be certain that she is safe to travel back to Australia.

The problem is that my wife requires a nonimmigrant waiver to enter the U.S. because of a theft conviction that occurred several years ago. She previously filed and was approved for a waiver with her last visa, but that recently expired earlier this year. My wife attempted to have a renewal waiver expedited, but she was informed that there is no procedure that would expedite the adjudication process. So, right now my wife has applied for a B1/B2 visa and the non-immigrant waiver application remains pending at the Admissibility Review Office.

We have already made flight arrangements to come to the United States. How can my wife enter the United States during the pendency of her waiver, so that she can assist me with the care of our daughter during her medical treatment (she is actually our daughter’s primary care-taker)?

Answer:

Thank you for your question. Based on the facts you have described above, preliminary, our office would want to research and confirm whether an application for humanitarian parole through U.S. Citizenship & Immigration Services may be the best option for your wife. Your wife’s case appears to have a very compelling humanitarian factor due to your daughter’s need for medical attention and your wife’s role as her primary care-taker.

Humanitarian parole is a means of allowing an individual into the United States who is otherwise inadmissible for a temporary period of time due to a compelling emergency. Both the United States Citizenship and Immigration Service (“USCIS”) and Customs and Border Protection (“CBP”) can grant paroles, however, based on the circumstances of your wife’s case, the appropriate agency to request a parole from would be USCIS.

According to USCIS, the agency may grant a parole when: (1) there is an urgent humanitarian reason, or if there is a significant public benefit; and (2) the period of time that corresponds with the length of the emergency or humanitarian situation. Parolees must depart the United States before the expiration of their parole. 

Based on the facts you have provided in your question, and by demonstrating additional equities in support of the parole application, we may be able to make a strong argument for a humanitarian parole. For example, we would need to be able to demonstrate that the treatment you are seeking from your daughter is unavailable in your home country of Australia, as well as establish that you have the financial ability to support yourselves and pay for her treatment during your time in the United States. 

If you would like to discuss your case in greater detail, please call our office. We would be more than happy to assist you with the preparation of a packet to submit to USCIS highlighting why USCIS should favorably exercise its discretion to grant your wife parole to accompany your daughter to the United States for medical treatment. 

SRW Border Lawyers Follow Up:

We assisted this Client in applying for humanitarian parole from USCIS's Humanitarian Branch.  The Client was granted humanitarian parole by USCIS's Humanitarian Branch and was allowed to enter the U.S. to accompany her daughter for this treatment. 

I have been denied a B1/B2 visa on two occasions pursuant to INA § 214(b). How can I overcome INA § 214(b), so that I can attend my friend's wedding in the United States?

Question:

Dear SRW Border Lawyers,

From 2009 to 2010, I was in the United States on a J1 visa. I returned to my home country when the internship ended. I returned to the United States again with another J1 visa from 2011-2012. I returned to my home country in June of 2012 and graduated from college.

My best friend lives in the United States and she is planning on being married in 2013. In August of 2012, I applied for a B1/B2 visitor visa to help her organize her wedding and to travel the United States for a short time (while I was in the United States on my J1 visas, I did not get an opportunity to travel). At the visa interview the consular officer denied my application due to INA § 214(b). I was told to try again at another time once I was able to provide evidence of stronger ties to my home country.

A few weeks later, my sister wanted to go to New York City and asked me to go with her. I applied for another visa, but this time I brought more evidence of stronger ties. I was denied again pursuant to INA § 214(b).

While I do not much care about visiting New York City, I do not want to miss my best friend’s wedding late next year. I was really put off about ever applying for another visa again from this one Consul, and I am hoping that whatever was written in my file is not so severe that it would affect my ability to get a visa to visit the United States, especially as I have not done anything illegal.  

What advice would you give on how I can strengthen my ties to my home country so that I can travel to the United States for my friend’s wedding?

Answer:

Thank you for your question. You indicate in your email that you were denied pursuant to INA § 214(b). INA § 214(b) states:

“Every alien…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) .”

In essence, INA § 214(b) is a presumption that all visa applicants are intending immigrants, unless they are able to establish to the satisfaction of the consular officer or immigration officer that they are entitled to the nonimmigrant visa that they are applying for. The 214(b) analysis is two-part: (1) can the visa applicant prove that they have strong enough ties to their home county, and (2) is the applicant eligible for the visa that they are applying for.

Based on your email, it appears that you were unable to establish strong ties to your home country. Evidence of “strong ties” can be documented in various ways. Some of the more common evidence submitted with a visa application include: mortgages, leases, utility bills (gas, electric, cable, internet), employment letters, and insurances (home, car). Thus, if you are unable to provide such information at this time, you will want to take steps to begin to develop those ties. For example, begin renting an apartment, or put utilities in your name. Young adults are at a disadvantage when it comes to proving ties, since they most likely have not established themselves (i.e. purchased a home, been employed for a considerable amount of time by the same employer).

In addition, from the information you have provided in your question, I also believe that your previous time in the United States in J1 status was working against your B-1/B-2 visa applications. For example, prior to your first visa interview, you had just returned to your home county after spending a significant amount of time in the United States. Your second attempt, which was shortly after your first, still did not allow for a significant passage of time since returning to your home country. Thus, based on your presumptive lack of strong ties to your home county and your previous time in the United States in J-1 status, the Consular Officer was not persuaded that you would return home following your visit to the United States and denied your application.

Simply put, you will likely have to wait before applying for a visitor visa. In the meantime, however, you should begin to develop ties to your home country so you can overcome INA § 214(b). Once you have developed significant ties, please contact our office so that we can further assist you with the preparation of your visa application.