Fraud/Misrepresentation Charge Successfully Vacated for Young IT Professional

Recently, SRW Border Lawyers was successful in having a charge of fraud/misrepresentation removed from a client’s CBP Records after six months of ongoing advocacy with CBP Officials. This marked a huge victory for our client since our client is a young professional in the IT industry and the life-time bar to the U.S. would have negatively impacted his future employment prospects in an age where global mobility is increasingly attractive.

As background, the client had first approached us after having submitted a TN application at a CBP Pre-Flight Inspection in Canada. The client had been seeking to be admitted as a TN (Scientific Technician – Engineering category) based on an offered position with a prominent IT start-up in the U.S. Ultimately, however, the client was allowed to withdraw his application for admission in lieu of a denial and issued a Form I-275, Withdrawal of Application for Admission.

Unfortunately, there was also a notation made in his CBP Record that he was being found inadmissible under INA §212(a)(6)(c)(i) [Fraud/Misrepresentation]. This would mean that if the client ever wanted to enter the U.S. in the future, he would require a non-immigrant waiver [Form I-192, Application for Advance Permission to Enter as Nonimmigrant] to do so – whether it be for a shopping trip, to transit through the U.S. on an international trip, or to seek temporary employment in the U.S., etc.

After the TN application incident, the client was understandably confused and anxious. He wanted to understand what had happened and the immigration consequences he was being faced with and how to resolve the situation. He proceeded to schedule a consultation with our office.

During the consultation, we discussed the TN application incident at length with the client. We asked for detailed feedback on what had transpired, what was asked of him, what he said and what he understood of the incident/application process. We also thoroughly reviewed the TN materials that had been prepared for him by the U.S. company’s immigration counsel, as well as the record of proceedings [referred to as a Sworn Statement] that CBP had prepared during the TN application incident.

During our review, we learned that the basis of the fraud charge was that there were differences in the TN Letter that was prepared in support of the TN Application and the actual Offer Letter that had been provided to the client (which CBP found while searching the client’s belongings during inspection). Specifically, the letters listed different job titles and different supervisors, but listed the same job duties. Both letters were actually accurate – the Offer Letter was the company’s internal job title for the proffered position and that the client would report to Mr. M. The TN Letter listed the client’s job title to better delineate the specific TN category being sought, and confirmed the degreed engineer that the client would be directly supervised by as Mr. S. However, those very differences led the CBP Officers to conclude that the contents of the TN Letter were fraudulent and materially misrepresented the true facts of the employment position being offered. This led to the finding of inadmissibility under fraud for the client.

At the conclusion of our review, we determined that the fraud/misrepresentation charge was legally erroneous and factually unsupported. The differences in the letters neither amounted to ‘fraud’ or ‘material misrepresentation’ as defined under INA § 212(a)(6)(C)(i) – especially since they were both accurate.

Our recommendation to the client was to file a request with CBP asking them to remove the notation of inadmissibility for fraud/misrepresentation. We explained that there was no formal appeal process, but it was possible to ask CBP to take a second look at the record. The client asked us to proceed.

Our office then drafted and submitted a detailed legal brief, together with supporting documentation, to CBP at Pre-Flight Inspection where the TN Application Incident had occurred. In our legal brief, we addressed and explained the differing job titles listed in the TN Letter and Offer Letter, as well as the differing supervisors/degreed engineers listed in the TN Letter and Offer Letter. We pointed out that the representations made in the TN Letter were accurate and while they facially differed from the Offer Letter found in the client’s belongings, the TN Letter was materially correct and properly outlined the client’s eligibility for TN status under the Scientific Technician – Engineering category. We also pointed out that the differing job titles in the Offer Letter and TN Letter were immaterial because the job duties in both were substantially the same. The facts did not equate to the type of facts that would support a finding of fraud/misrepresentation, which carried lifetime consequences for our young client.

A few weeks after submitting our request, we began placing follow-up inquiries to confirm that the matter was being reviewed. Eventually, we were able to have telephone conferences with the Acting Port Director at the CBP Pre-Flight Inspection where the incident had occurred. The telephone conferences were instrumental in being able to address CBP’s concerns with our request, add further context to the written submission and gave us an opportunity to further advocate on the client’s behalf.

Between our written submission and our telephone conferences, we were successful in having the notation of inadmissibility for fraud/misrepresentation removed from our client’s record. Our client can now resume traveling to the U.S. and/or pursue employment opportunities in the U.S., all without the hassle of needing a non-immigrant waiver.

SRW Border Lawyers Successful in Vacating Fraud Charge for Canadian Citizen Based on Legal Insufficiency

Last fall, we had a multinational company approach us about a Canadian employee who had just been denied entry into the U.S. as a Business Visitor. Besides being denied entry, he was also charged with inadmissibility for fraud and told that he required a waiver to enter the U.S. in the future for any entries. The company was put in a difficult position because they had been in the process of determining whether to proceed with a TN application or an L-1B application given the employee’s highly specialized skillset and need for his services in the U.S. The need for a waiver would jeopardize their plans for moving forward, as well inhibit their ability to use the employee to his maximum efficiency.

As it stood, the finding of fraud made the employee inadmissible for the rest of his life. He would have to obtain a non-immigrant waiver (Form I-192) from CBP’s Admissibility Review Office (ARO) before entering the U.S. for any purpose in the future. The non-immigrant waiver can be approved for as little as six months to a maximum of five years, which meant he would likely require multiple applications in the future. In addition, the non-immigrant waiver application carries a hefty filing fee (currently, $585 and proposed to increase to $930). Lastly, processing times can vary from 4-6 months for the ARO to adjudicate the application. (I-192’s must also be submitted with a RCMP Report which is currently taking 2-4 months to obtain.)

In reviewing this matter, our first step was to review the incident to see if the charge of fraud was legally and factually substantiated. If it was, then the employee would require a waiver. If it was not, we would submit a request to CBP to review the incident and address the legal error that had occurred.

Our research included discussing the inspection with the employee in detail and to the best of his recollection – what was asked of him, how he answered, what was the purpose of his trip, etc. We also thoroughly reviewed the record of proceedings – the sworn statement that CBP used to charge the employee with inadmissibility for fraud. Our analysis determined that while CBP may have been correct in denying the employee admission, the charge of fraud was not factually or legally substantiated. Specifically, CBP questioned the employee about any previous denials to the U.S. and any previous advisable by CBP to obtain non-immigrant work authorization (H-1B). Having traveled to the U.S. for a couple of decades now and being unable to recall specifics, the employee answered “No” to both questions. However, CBP’s own records indicated that the employee had been previously denied admission and previously been advised to obtain non-immigrant work authorization. CBP found his answers of “No” to rise to the level of fraud since he was being evasive and not forthcoming.

Our office submitted a request to CBP at the Port of Entry where the incident occurred requesting that the charge of fraud be removed from the employee’s records since it was improvidently issued. In our legal brief, we pointed out that the employee’s inability to recall specific advisals and/or denials spanning several decades did not meet the legal definition of ‘fraud’ or ‘material misrepresentation’. In addition, we also pointed out that his ‘false’ answers were not ‘material’ since they did not ‘tend to shut off a line of inquiry’ since CBP had the answers to those questions available to them through our own records.

In CBP’s initial response to our office, they asked us to forward our request to the ARO and said they could not review the matter. We insisted that the ARO, and CBP in general, has consistently advised that issues such as these should first be directly brought to the Port of Entry where the incident occurred. We also confirmed that the Port Director had the ability and discretion to review our request and submitted sample letters we have been able to obtain in the past when a fraud charge was vacated by CBP.

Shortly after this submission, we received a letter from CBP confirming that the fraud charge had been withdrawn per our request and the employee was no longer inadmissible for fraud. A few weeks later, the company proceeded to prepare the employee’s L-1B application and asked us to accompany the employee to apply for the L-1B at our local Port of Entry in Buffalo, New York. We accompanied the employee earlier this week and are happy to note that he was approved for his L-1B, without any issues on the merits of the L-1 or the previous fraud finding.

ERO and Underlying Charge of Inadmissibility Based on Fraud Vacated by CBP for Canadian Citizen

Our Client, a Canadian citizen, was an engineer who also worked part-time for a test-prep company in Canada as an Instructor. The test-prep company sought to send him to the U.S. for a weekend trainiForm I-601ng assignment where he would be training other prospective instructions. Being a Canadian citizen who is visa-exempt, our Client presented himself at a POE for inspection and admission in B-1 status to carry out this short-term assignment for his Canadian employer. When questioned at the POE, he explained his purpose – he was seeking to enter the U.S. to complete a training assignment on behalf of his Canadian employer for the weekend and would be returning home to Canada at its conclusion. However, he was incorrectly advised that he was not qualified to enter the U.S. in B-1 status to carry out his enumerated purpose and denied him entry.

After leaving the POE, and feeling pressured to complete the training assignment and not being advised that he could not apply again, our Client thought to seek entry at another POE. The next day, he appeared at another POE and this time, he only indicated that he was seeking to enter the U.S. to shop. However, the CBP Officer reviewed our Client’s CBP records and noticed that our Client had been denied entry the previous day and sent him to secondary inspection. During secondary inspection, our client retracted his previous statement and truthfully informed the officer that his primary purpose was still to enter the United States to complete the training assignment for his Canadian employer. At that time, our Client was issued an Order of Expedited Removal under INA §235(b)(1) based on the underlying charges of inadmissibility under INA §§ 212(a)(6)(C)(i) [Fraud/Material Misrepresentation] and (7)(A)(i)(I). Consequently, our Client was now permanently inadmissible to the United States under INA § 212(a)(6)(C)(i), and inadmissible for a five (5) year period under INA § 212(a)(9)(A)(i) based on his order of Expedited Removal. To re-enter the U.S., our Client would now minimally require a non-immigrant waiver pursuant to INA §212(d)(3) [Form I-192] or an immigrant waiver pursuant to INA §212(i) [Form I-601] to waive his inadmissibility under INA §212(a)(6)(C)(i), depending on the purpose of his entry. In addition, if he wanted to re-enter the U.S. within the five (5) year bar imposed as a consequence of the Order of Expedited Removal, our Client would need a waiver pursuant to INA §212(a)(9)(A)(iii) [Form I-212].

Concerned about his ability to re-enter the U.S. in the future, especially as a professional engineer, our Client and his employer contacted our office. We went over the incidents very carefully with our Client, reviewed the paperwork provided by CBP (Record of Sworn Statement, Order of Expedited Removal, etc.), and reviewed the purpose of our Client’s proposed entry into the U.S. Our review revealed that CBP had erred in denying our Client entry in the first place, as he had been admissible in B-1 (in lieu of H-1B) status. In addition, our review revealed that while our Client had indeed made a false statement to CBP, his false statement did not meet the definition of a ‘material’ misrepresentation as required by the applicable law/guidance. Specifically, the false statement was not material because it did not ‘tend to shut off a line of inquiry’ since the information that our Client was presumably intending to hide was available to them in their own internal records.

We submitted a detailed legal brief, together with supporting documentation, to CBP and requested that they review this incident to determine whether they agreed that the Order of Expedited Removal and the underlying charges of inadmissibility had been improvidently issued. After several weeks, we received notification from CBP that they agreed with our analysis and they would update CBP’s records to vacate the Order of Expedited Removal, as well as the underlying charge of inadmissibility under INA §212(a)(6)(C)(i). As a result, our Client is no longer inadmissible to the U.S.

Improvident Fraud Finding Vacated By U.S. Customs & Border Protection

Several years ago, our Client, a national of Iran and now a Canadian citizen, was in Canada to pursue his graduate studies. At that time, his parents were U.S. lawful permanent residents and resided in California. While in Canada during this time, our Client made a conscious effort to maintain a valid B-1/B-2 visa so that he could visit his parents during vacations, as his school schedule allowed.

About six years ago, as he was preparing his Master’s Thesis, he planned to visit his parents and applied for a new B-1/B-2 visa accordingly. However, because of unanticipated issues with his Master’s Thesis, which cut into his vacation time, he decided to change his vacation plans and instead of travel to visit his parents, he would visit New York City (he had never been) as well as some universities on the east coast in contemplation of pursuing his PhD.

When he applied for admission at a border Port of Entry, with his valid visitors (B1/B2) visa, he was pulled over into secondary inspection and questioned extensively about the purpose of his trip and the discrepancy in what he had told the Consular Officer when he obtained his B-1/B-2 visa [to visit his parents] and what his stated purpose of entry was at the time of applying for admission [to visit New York City and schools].

Our Client truthfully answered all questions asked of him by CBP. He explained the initial plans, the delays with his thesis and his desire to make the most of his few days off by visiting New York City and various universities. However, when CBP searched his vehicle and found a number of his resumes, they questioned whether his true purpose was to really enter the U.S. and seek employment. CBP Officers alleged that our Client had lied during his interview regarding the reasons he was seeking his B-1/B-2 visa. At the end of his secondary inspection, CBP cancelled our Client’s B-1/B-2 visa and permitted him to withdraw his application for admission, but nonetheless made a notation in CBP records regarding a finding of fraud under INA §212(a)(6)(c)(i). Thus, in order to re-enter the U.S. in the future, our Client would require a waiver (either a non-immigrant waiver under INA §212(d)(3) or an immigrant waiver under INA §212(i), depending on his intent).

After our initial consultation with the Client, we recommended that we file a Freedom of Information Act (FOIA) on his behalf with the Dept. of Homeland Security to obtain a complete copy of his file since it had been six years since this incident and we wanted to make sure that we had all the appropriate records from his file. Once we had the FOIA Response, we would determine the appropriate strategy and consult and review our strategy with the Client. After receiving and reviewing the FOIA Response, we came to the conclusion that the fraud charge against our Client was not legally substantiated. As such, we recommended that we file a motion with CBP to correct our Client’s records and remove any reference to the fraudulent finding since such finding was made erroneously. Our Client agreed and we submitted an extremely thorough and comprehensive submission to CBP, including affidavits from our Client’s parents, proof of airline tickets and email’s between our Client and Student Advisors at various PhD programs, etc.

After reviewing our submission, CBP Officers scheduled a follow-up interview with our Client. We appeared with our Client at the Port of Entry and after his interview, he was inspected and admitted as a visitor to the U.S. – without the need for a waiver. Our Client will no longer face a lifetime bar to the U.S. as a result of the previous incident six years ago.