Port Of Entry Parole Issued to Canadian Citizen While Awaiting Adjudication of Non-Immigrant Waiver Application from the ARO for Issuance of E-2 Derivative Visa

Last month, we were contacted by our prospective client’s wife after she had been struggling for a couple of months in the U.S. trying to run her newly established U.S. business (a restaurant, which forms the basis of her E-2 status) and single-handedly taking care of her minor children, all without her husband’s assistance. Sadly, he had been denied an E-2 visa through the U.S. Consulate in Toronto and was awaiting a decision from CBP’s Admissibility Review Office (ARO) regarding his pending non-immigrant waiver application in conjunction with his E-2 visa.

As background, our client, a Canadian citizen, is admissible under INA §212(a)(2)(A)(i)(I) [Crime Involving Moral Turpitude] as a result of a criminal conviction in Canada in the mid 2000’s (Fraud over $5,000). He had previously applied for a non-immigrant waiver through the ARO by filing a Form I-192, Application for Advance Permission to Enter as Nonimmigrant, which had been approved by the ARO in July 2013 for a period of one (1) year. At the time he appeared for his E-2 visa interview at the U.S. Consulate in Toronto with his family, our client was in possession of a valid waiver on Form I-194. Sadly, he did not realize that he would need to obtain a new non-immigrant waiver, annotated on his E-2 visa (i.e. his Form I-194 could not be used in conjunction with his E-2 visa). He was further set aback when he realized that the ARO is currently taking 4-6 months to adjudicate non-immigrant waiver recommendations forwarded from U.S. Consulates worldwide.

Not wanting to interrupt the older child’s schooling and needing to get established in Florida to commence managing the business, our client’s wife and children relocated to Florida while they waited for our client to join them. However, as time went on, our client’s wife was having an increasingly difficult time managing the new business and taking care of her children, who was quite distraught over their father’s absence. The couple had invested their life savings into this U.S. business and had almost ten (10) employees at the U.S. business – and had major plans for renovations. Unfortunately, this was all quickly coming into jeopardy as our clients absence from his family’s life was causing untold anguish to the family. At this point, the wife was honestly considering whether she would need to close her business, lay off her employees, and return to Canada to reunite her family.

In a last attempt, our client’s wife contacted us to see whether there were any interim solutions or if the process could be expedited. Sadly, we told her that we did not feel that the ARO would expedite handling the waiver. However, given the previous waiver approval by the ARO and the current favorable recommendation to the ARO, the jeopardy that the U.S. business and its employees were in, the stress that the family was under, and the well-known processing times of the ARO, we believed that it would be feasible to apply for a short-term port of entry parole in order to allow her husband to enter the U.S. to be with the family. We explained the highly discretionary nature and the limited parameters of the parole. He would not be in E-2 status and thus, would not be able to work (E-2 Derivative Spouses are able to apply for EAD’s). It would be a single entry parole. However, ideally, if approved, it would be long enough to allow the ARO to adjudicate his non-immigrant waiver application and ultimately, allow the Consulate to issue his E-2 visa.

Our client asked us to proceed and we submitted a detailed packet to CBP outlining our request for parole. We cited to the favorable factors in his case (especially that he had a previous waiver approval, a current recommendation from the Consulate for a waiver approval, and that there had been no material changes in his inadmissibility) and asked them to exercise discretion in granting this port of entry parole. Ultimately, the parole request was granted and the family is now reunited in Florida while the non-immigrant waiver application remains pending at the ARO.

Port Of Entry Parole Issued To Canadian Citizen To Attend Family Wedding

Earlier this month, our office assisted a client, a Canadian citizen, in obtaining a port-of-entry parole so that she could enter the U.S. for four (4) days to attend a family wedding and participate in various wedding festivities. While these activities are perfectly permissible B-2 (visitor for pleasure) activities, our client could not enter the U.S. in B-2 status because she is inadmissible to the U.S. and does not have a valid non-immigrant waiver. While a port-of-entry parole is not to be used as a means of circumventing the non-immigrant waiver process, in various circumstances, CBP can discretionarily exercise their authority to parole an individual into the U.S.

As background, after years of traveling to the U.S. without incident, our client unexpectedly learned of her inadmissibility last year due to two criminal convictions in Canada from the early 1990’s (‘Fraud Over $1,000’ – writing bad checks). Upon learning of her inadmissibility, she promptly began working with a company to prepare her non-immigrant waiver application, which included obtaining her RCMP Report, as well as requesting the necessary court records relating to her convictions. Despite her proactive actions, it wasn’t until a few weeks ago that she finally received her waiver application packet from the company she had hired.

Prior to submitting her non-immigrant waiver application, our client contacted our office and scheduled a consultation to ask a few questions about the filing process at the Port of Entry, adjudication timelines, expedite possibilities, etc. During the consultation, we answered our clients questions but gave her the disappointing news that currently, the Admissibility Review Office (ARO), which is responsible for reviewing these applications, is taking 4-6 months to adjudicate these applications, and we did not believe an expedite request would be granted in her case. Accordingly, unless she is able to secure another lawful means of entering the U.S. for her cousin’s wedding, she would not be able to attend this important and long-awaited family event. We then went on to explain that she could have one option – we could attempt to apply for a port-of-entry parole on her behalf to let her enter the U.S. for a few days. We explained the highly discretionary nature of the request, the importance of complying with its terms if granted and explained our strategy – we would outline how our client unexpectedly learned of her inadmissibility, explain and document her attempt to timely obtain a non-immigrant waiver, confirm her only ground of inadmissibility was a result from her convictions in the 1990s and she had never again violated any laws, and that she had strong ties to Canada and was a productive and contributing member of society.

CBP reviewed the parole request and ultimately, approved our client’s request for a port-of-entry parole, which allowed her to attend the family wedding – a fact that she, the bride, and the rest of the family was quite elated about.

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.

Canadian Citizen Admitted Into the U.S. After U.S. Conviction Vacated

After years of traveling to the United States without incident, in April 2012, while applying for admission into the U.S. to attend a concert, our client, a Canadian citizen, was informed by CBP Officers that his criminal convictions from 1999 in Toole County, Montana rendered him inadmissible to the United States. Subsequently, our client reached out to us to see what options were available to resolve his U.S. immigration matters. Given his convictions, we explained to him that he was inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I) for a controlled substance violation and thus would require a non-immigrant waiver under INA §212(d)(3) for the rest of his life in order to continue re-entering the U.S. We explained the I-192 application process, processing timeframes, etc.

Our client was quite upset at these turn of events – he had not realized that the plea he had made would render him inadmissible to the U.S. He also felt that he had not been properly advised of possible immigration consequences. Instead of just advising our client to apply for a non-immigrant waiver for the rest of his life because CBP had determined he was inadmissible, our firm first confirmed that he was in fact inadmissible under INA §212(a)(2) and that his conviction did not fit under one of the excepNext, we proposed a strategy: we would attempt to get Client paroled into the U.S. by CBP to address to any important/urgent matters given that he suddenly learned of his inadmissibility and concurrently attempt to find a criminal attorney in Montana who could review the client’s criminal case to determine whether there were any technical and/or legal deficiencies during his proceedings given his brief recollection of the proceedings.

Subsequently, we were able to have our client paroled in twice: once in May 2012 to attend an important education convention related to his employment and again in September 2012 to stand as best man at his best friend’s wedding – both activities which had been planned well before April 2012 and at which time our client was not aware of his inadmissibility.

Concurrently, we located and began working with a criminal defense attorney in Montana to address possible procedural and/or constitutional errors that may have occurred during the handling of his case. We explained the immigration consequences of the plea and had the criminal defense attorney review our clients criminal records. The criminal defense attorney’s review of the record revealed that there was questionable doubt whether our client was properly advised of his constitutional rights during his criminal proceedings. After discussing his analysis with the County Attorney, our client’s criminal defense attorney filed a Motion to Amend Record with the Court which sought to vacate our client’s convictions and underlying plea, and dismiss the charges against him in their entirety. The Motion was granted and entered.

Our office subsequently provided CBP with the new order and requested that our client be admitted into the U.S. as a B-2 visitor for pleasure and that CBP records be updated to reflect that our client was no longer inadmissible to the U.S. given that he no longer had a ‘conviction’ for U.S. immigration purposes. Specifically, his plea had been vacated and the convictions against him had been dismissed with prejudice. Under INA § 212(a)(2), which lists the criminal grounds of inadmissibility, it is a prerequisite that an alien must be “convicted” in order for these grounds to apply. As our client was not “convicted” within the meaning of the term as defined by the INA, he is therefore not inadmissible to the U.S.

Our Client was admitted by CBP in B-2 status, CBP has amended their records and our client will not have to obtain a non-immigrant waiver in the future and can travel freely as most other Canadian citizens to the U.S.

This case is a prime example of the innovative strategies and solutions that our firm provides to our clients – By keeping in mind the client’s short-term and long-term goals, and exploring ‘out-of-the-box’ ideas, we are able to offer strategic options that enable our clients to achieve their end goals, instead of merely relying upon the ‘usual’ solutions.