Question:

Dear SRW Border Team,

I am a Canadian citizen. I came across your website and found it to be the best resource I have to help me with my U.S. immigration issues.

I came to the United States in April of 2001 on an H-1B Visa. My visa expired in 2003, but I remained in the United States until 2004 waiting to become a Canadian Permanent Resident. At the time, I did not realize that remaining in the country was unlawful. I moved to Canada in 2004 as soon as I became a Canadian Permanent Resident. In 2005, I applied and received a B1/B2 visitor visa. When I tried to cross the border, a Customs and Border Protection  (“CBP”) officer informed me that she was cancelling my visa because of my overstay in the US, and that my response to one of the questions on my visitor's visa application was incorrect. The question was about unlawful stay or any other charges against me. Since I was unaware of my unlawful stay in the U.S., I was not very clear about that question and selected "no" as my answer. The CBP officer at the border asked me to return to Canada and apply for a waiver once I get my Canadian citizenship. I received my Canadian citizenship in 2008 and then applied for a Form I-192 nonimmigrant waiver. My waiver was approved for 1 year. Once that waiver expired, I applied again for another Form I-192 waiver in 2011 and it was approved for 5 years. On the waiver there is one inadmissibility clause charging INA § 212(a)(6)(C)(i). When I was reading one of your blog entries on your website, it says that INA § 212(a)(6)(C)(i) (Fraud) is a permanent inadmissibility. I really need your advice about removing the fraud charge from my record. I never intended to lie or misrepresent that I had overstayed my H-1B visa. I would really appreciate your advice and help in this matter.

Answer:

Thank you for emailing the SRW Border Team. We would be more than happy to assist you with your immigration matter.

In order to properly assist you, however, we would need to speak to you in greater detail to learn more about the specifics of your case.  A consultation will give us an opportunity to look at each aspect of your case. For example, we will want to determine for certain that you are inadmissible under INA § 212(a)(9)(B)(i)(I) for allegedly accumulating unlawful presence after failing to leave the United States by reviewing the Form I-94 that you would have been issued.

As far as the fraud, based on your email, you claim to have perhaps overstayed your H-1B status for more than (1) one year. As a result, when you failed to include such information about your overstay on your B1/B2 visitor visa application in 2005, you were subsequently charged with fraud pursuant to INA § 212(a)(6)(C)(i) by U.S. Customs & Border Protection (CBP) when you attempted to enter the U.S. with that visa.  Fraud is indeed a lifetime bar and will require a waiver for the rest of your life.

However, since you were presumably unaware that you accumulated unlawful presence, we may be able to attack the fraud charge lodged against you on the basis that your failure to address your unlawful presence in your 2005 visa application was neither knowing nor intentional. (Please click on the following link to read about a recent case where we successfully vacated a fraud charged leveled against a client: http://www.srwborderlawyers.com/blog/2012/6/17/fraudmisrepresentation-charge-of-inadmissibility-under-ina-2.html ). Even if vacating the fraud charge is not an option, we can discuss how you can still enter the U.S. as a non-immigrant (H-1B, TN, etc.) using your current waiver.  

We hope the above information was helpful.  We look forward to speaking with you and helping you through this stressful time.