I was convicted of 2 minor drug charges (possession) in Canada, but the convictions were pardoned in 1994. Do you think my case is likely to be approved for an I-192?

Question:

I have a situation that requires a nonimmigrant waiver. I am a Canadian citizen and currently live in Montreal, Quebec. Twenty-five years ago I was convicted for 2 minor drug charges (possession), but the convictions pardoned in 1994. I am seeking help with preparing a Form I-192 waiver and found your website on the Internet. Do you think my case is likely to be approved?

Can you tell me if, when depositing the waiver package at Port of Entry, Customs and Border Protection officers inquire about the facts of my previous convictions or do they simply verifying that the waiver is complete? I do find this whole thing intimidating.

At this point in time, I am collecting documents (RCMP, court documents-indictment-conviction-minutes of trial). If I chose to move forward with your assistance, the documents that I would be providing will be mostly in French. I hope this is not a problem.

Finally, since my record is sealed, it is not visible to law enforcement in Canada. My question is what will happen to my waiver application when it is submitted to the Admissibility Review Office? Will the information in the application be disseminated to other jurisdictional systems? I am concerned that a possible background check may reveal my previous conviction and jeopardize my job or future promotions.

Answer:

Thank you for contacting SRW Border Lawyers. As you are likely aware, Canadian citizens who are inadmissible to the U.S. and who would like to enter the U.S. for non-immigrant purposes, whether it be as a visitor for pleasure, business visitor or under a non-immigrant employment category (TN, L-1, etc.) must first apply for a nonimmigrant waiver (Form I-192). Due to your two (2) previous minor drug convictions, you are most likely inadmissible to the United States INA §212(a)(2)(A)(i)(II) and require a nonimmigrant waiver under INA §212(d)(3).

Our Services

Since the facts and circumstances of each waiver case is different, SRW Border Lawyers makes it a practice to first review each case in detail before confirming that a waiver is necessary. For example, we would want to know how old you were at the time of these convictions and how these proceedings were handled – and confirm whether you truly have a ‘conviction’ for immigration purposes. A consultation provides us the best opportunity to review each aspect of a case and address any issues or concerns you may have. Once we confirm that a waiver is necessary, we will assist you with collecting all necessary documents, complete all forms, and prepare a detailed legal brief outlining your eligibility for the nonimmigrant waiver under precedent case law.

Our firm has prepared numerous nonimmigrant waivers for clients throughout Canada, and each case brought with it a different set of facts and varying degrees of complexity and seriousness. While we never guarantee that a waiver application will be approved, we never take a case that we believe has little or no chance of succeeding.

Based on the information you provided in your email, there appear to be a number of favorable factors in a prospective nonimmigrant waiver application on your behalf. Your convictions, presumably the only ones you have, were from almost twenty-five years ago and you have not shown a history of recidivism. Other factors we would want to stress is how you have been a productive and respected member of society. Additionally, were you granted a pardon or was your case just sealed? If granted a pardon, we would want to highlight the favorable treatment you have received from your own government. As far as your French documents, generally, they would need to be translated before being submitted with your nonimmigrant waiver application. We sometimes obtain fee quotes for our clients from our third party vendor and let our clients choose how to proceed regarding the translations.

Submitting A Waiver Application at a Port of Entry

Submitting your waiver application at a port of entry is limited to paying the appropriate government fee and submitting your application. This is not a time where Customs and Border Protection officers address the merits of your waiver or question you about your previous convictions.

Admissibility Review Office (“ARO”)

The extent of the Admissibility Review Office’s (ARO) information dissemination is unknown. Once a waiver is filed, the agency provides little insight on the process other than providing (often incorrect) timetables for adjudication. In recent years, there has been a trend toward consolidating data among law enforcement agencies throughout Canada and the United States; however, we have yet to encounter an issue similar to the one you describe in your question.

Please continue to collect the documents that you outlined in your email (i.e., RCMP, court documents, certificate of disposition, minutes of trial). In the meantime, if you have any additional questions or concerns, or would like to set up a consultation to speak with us to discuss the specifics of your case, please call our office. We look forward to speaking with you.

Can I omit information about my spouse on the I-192 waiver application? I fear any information I provide on my application may lead to a finding of inadmissibility against her.

Question:

Dear SRW Border Lawyers, I came across your website while looking for information on filing a Form I-192 waiver. I notice that your company has deep experience in filing these types of waivers. To make a long story short, I was living in the United States in H1-B visa and then fell out of status, but remained in the United States for a long period of time. Later, I moved to Canada after receiving permanent resident status. I am now a Canadian citizen. Last year, I applied for a B1 visitor visa and tried to visit the US; however, when I applied for admission into the United States, I was stopped, questioned for a long period of time, and then expedited removed. I believe the officer at the time thought that I was trying to immigrate permanently to United States (which I was not). I have no criminal record anywhere in the world, and I am very happy living in Canada. I just wanted to visit friends and family in the United States.

My wife and children, who are also Canadian citizens, are able to travel to United States without any problems even though they too overstayed the same length of time that I did. As such, my wife is very particular about not including her name on any Form I-192s, which I may file to overcome my inadmissibility. My wife fears that her ability to travel will be impacted if her name goes on any waiver. This is the biggest reason holding me back from filing the Form I-192 for the past 10 years.

My concerns are as follows: (1) Can I omit the information about my spouse and marriage from any papers that I file with the government; and (2) will the Department of Homeland Security (DHS), Customs and Border Protections (CBP), or Admissibility Review Office (ARO) insist on having details about my wife on the waiver application?

Answer:

We would be more than happy to assist you with your immigration matter. In your email you asked if you could omit information about your spouse and marriage details when applying for a Form I-192, Application for Advance Permission to Enter a Nonimmigrant (“Form I-192”). In general, you should never omit required information from any document you file with the government. Thus, you must complete all applications, forms, and petitions truthfully. Failure to do so could subject you to a finding of fraud/misrepresentation pursuant to INA § 212(a)(6)(c), which is a lifetime bar to entering the United States.

Based on the information you provided in your email, we are not entirely sure that you need a Form I-192 waiver at this point. First, as you already may know, if you lived in the United States without any status after a certain period of time you began to accumulate unlawful presence. Based on the amount of unlawful presence you accumulate, the longer you are barred for reentry into the United States (i.e., 3 year bar vs. 10 year bar). If, however, you already remained outside the United States for more than 3 years or 10 years period (depending on your bar) you may no longer be inadmissible for unlawful presence.

You state in your email that you were issued an expedited removal order, which would bar you from entering the United States for five (5) years. Fortunately, from what you indicated, it appears that you were not issued an expedited removal order pursuant to INA 212(a)(6)(C), so you are likely not subject to a lifetime bar. Also, if 5 years has passed since the order was issued against you, you are likely no longer barred as a result of that order.

Finally, and this may be the greater troubling aspect, is that you state that your wife accumulated the same amount of unlawful presence as you did. If this is the case, your wife may need a waiver, even though she has been entering the United States without incident. This issue should be addressed, so that she does not experience any adverse immigration consequences in the future.

At this point, there is not enough information to determine if you or your wife requires a waiver, and if so, which ones. Thus, in order to properly assist you, I would strongly encourage you to set up a consultation to speak with the SRW Border Lawyer team to fully discuss these issues.

I was stopped at the border and issued an expedited removal order. I have been living in the U.S. for the past 10 years and now I am barred from returning to my home. What can I do?

Question: I was stopped at Rainbow Bridge on December 30, 2012 and was sent to secondary where I was questioned for hours. I was told by officers that I would not be allowed to enter the United States and fly back to California. I have been living in California for the past three years with my fiancé. Now, officers at the Rainbow Bridge told me that I “overstayed” and that I misrepresented myself. I was presented with a document that indicated I was barred from entering the United States for five years. I have read your blog listing many cases with hopeful options. I understand that I will need waiver(s) and was hoping I would be able to parole in for a short entry to at least put my belongings in storage (these are my belongings accumulated over my entire life that I worked hard for). I would also like to see my fiancé who is in a very emotional unstable place right now without my support and care. What are my best options? When officers questioned me, I was shocked, very nervous, and scared. This has never happened to me in all of my travels back and forth from the United States and Canada.

Answer: Thank you for your question.

Based on your email, it seems that CBP is alleging that you may have accumulated unlawful presence and is charging you with misrepresentation. We have had a considerable amount of success in resolving these issues – whether through a waiver or through requests that CBP review their previously issued decision; however, each strategy is developed on a case-by-case basis, so this is the reason why we highly encourage a consultation.

Unlawful Presence

Generally, when an individual is in the United States without proper permission/status they begin to accumulate “unlawful presence.” A (3) three-year bar is applied 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 a (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 removal. While there are some exceptions, we do not know if any apply to you at this time without further reviewing your immigration history – especially since you indicated that you have frequently traveled back and forth from Canada in the past and you are a Canadian citizen who was likely given a ‘soft inspection’ on many instances.

Misrepresentation

Generally speaking, anyone who attempts to enter the United States through fraud/misrepresentation can be found inadmissible pursuant to INA § 212(a)(6)(C)(i). The penalty for willful misrepresentations is a lifetime bar to the United States, unless the foreign national is successfully able to have the fraud charge vacated or obtains a waiver of this ground of inadmissibility.

Expedited Removal Order

You indicated that CBP issued you a document stating that you were banned for five years from re-entering the U.S. More than likely, you were issued an Expedited Order of Removal, which is an ‘informal’ removal process which prevents you from re-entering the U.S. for a period of five years or until you are able to obtain a waiver of the same.

Parole

In your email you mention applying for 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. Recently, Customs and Border Protection ("CBP") has been less willing to extend parole to anyone who does not meet a higher threshold of "humanitarian need."

Since you seem eager to understand what options may be available to you, I strongly encourage you to call our office at your earliest convenience and set up a consultation to speak with the SRW Border Lawyer team. A consultation will give us an opportunity to look closely at each aspect of your case and develop a strategy for you that addresses your unique and specific immigration matters, as well as meets your short-term and long-term goals. We look forward to hearing from you.

I was "flagged" and denied entry into the United States as a visitor in B-2 status. What can I do to correct any negative information in my file maintained by Customs and Border Protection?

Question

Dear SRW Border Lawyers,

I am a Canadian citizen and I currently live in Toronto, Ontario, Canada. Last week, I was denied entry into the United States at the U.S. Customs and Border Protection preclearance at Pearson International Airport. My primary purpose for traveling to the United States was to visit/tour and meet with my friend (and employer) who was also traveling on B-2 visitor status.

At the preclearance, I was extensively questioned by CBP when I explained that my flight was purchased by my employer as a bonus for my work with the production company that he owns in Canada. When asked what I do for a living, I stated I was a TV Producer, and I was then promptly sent to secondary.

After about an hour, I was told I was inadmissible to enter the United States. I was photographed, fingerprinted, and given a document to read and sign. I found the document inaccurate and did not sign it. No other clear information was given to me as to the reason I could not travel other than CBP believed I was being dishonest about my reason for visiting, and they believed I was seeking entry to work. I was informed, however, that I was not banned and that I could attempt to re-enter at a later date.

I went to the Air Canada desk to explain my situation, and was told I was rescheduled on a later flight. I was also informed that as long as I was told I was not banned that I could attempt to reenter the customs area and plead my case to another CBP official. I then checked back in and told a different CBP officer my situation. He said he believed me and would like to send me through, but I had been “flagged” and was required to enter secondary.

During my second visit to secondary, CBP officials said that in order to gain entry I had to bring documents that proved I was going to Los Angeles only to visit and a letter from my friend explaining why he paid for my air travel. After being unable to contact my employer, I cancelled my trip and left the airport.

I have no idea why I was found inadmissible. I am concerned that this ordeal will affect future travel to the United States. What can I do to correct any negative information in my file?

Answer

Thank you for your question. Based on what you briefly described, it appears as if you were simply turned away because CBP did not feel that you qualified for B-2 (visitor for pleasure) status, either because they felt that you did not establish that you had strong ties to Canada and/or they felt that you were seeking to enter the U.S. to work (which is not a permissible B-2 activity).

In general, CBP will issue documents or take a sworn statement from you if something more serious than a denial resulted from your encounter. Since no documents were issued and you were told by CBP officials to return when you could provide additional information, there is a good chance that no harmful action was taken. When the government fails to issue explanatory documents or provide adequate reasoning for a denial, it is understandable how you may be hesitant to reapply for admission into the United States. You cannot help but think that your next attempt will undoubtedly result in a permanent bar. Furthermore, it is not helpful when CBP begins to throw around terms like “flagged,” which only heighten your anxiety.

In situations such as yours, when you have little information about why you were denied, one service that we provide for our clients is to submit a FOIA request to see what, if anything, is in their file. FOIA requests can be made to the Department of State, Customs and Border Protection, or United States Citizenship and Immigration Services. Unfortunately, FOIA requests take around 6-8 months to process, so expect a wait once you submit your request. Once we received a client’s complete file, we completely review the file and develop a strategy moving forward that meets the client’s short and long-term goals.

Aside from making a FOIA request, there is little else that can be done other than going back to the border with “stronger ties” and applying for admission. Additionally, due to our proximity to the border, we also offer a service we refer to as “Controlled Admission.” A Controlled Admission allows us to accompany our clients to the border and guide them through the inspection process. We understand that applying for admission can be daunting, but with a Controlled Admission, we are able to personally advocate on behalf of our client at the border should any issues arise.

At this time, the best solution I can offer is to have you schedule a consultation with our office so we can thoroughly discuss what documents/information you presented at the border, about your conversations with CBP and determine a strategy for moving forward. We look forward to speaking with you.