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.

Canadian L-1 Applicant Admitted for Three Years with a Canadian Border Crossing Card in Lieu of an I-194 issued by the Admissibility Review Office (ARO)

Our client, a Canadian citizen seeking L-1 status, not only needed to apply for admission into the U.S. in L-1 status, but required a non-immigrant waiver to waive his inadmissibility resulting from a criminal conviction. (Unlike most foreign nationals, Canadian citizens seeking L-1 status pursuant to North American Free Trade Agreement (NAFTA) may file their petition at the Port of Entry (POE) for immediate (same-day) adjudication.) However, because he possessed a lifetime waiver vis-à-vis, a Canadian Border Crossing Card, we were able to have his L-1 petition adjudicated without first obtaining a waiver from the Admissibility Review Office (ARO), which most recently is taking over 130 days on average to adjudicated non-immigrant waiver applications.

B-1 in lieu of H-1B Approved for Canadian Corporate Executive

Earlier today, Senior Partner Bill Reich appeared at a local Port of Entry, representing a Canadian corporate executive who was seeking B-1 status for a period six (6) months, in lieu of an H-1B.  The applicant is employed by a Canadian company, which has a U.S. subsidiary who temporarily required a corporate executive to review its business operations due to difficulties that had arisen after the company discharged its president.  The applicant is being sent to the U.S. subsidiary temporarily to troubleshoot the situation and make some recommendations on behalf of the Canadian employer.

While applicants for B-1 (in lieu of H-1B) status must still meet the requirements of an H-1B, they do not have to bear the burdens of a typical H-1B filing which requires an LCA, a formal filing with USCIS, and the payment of the applicable H-1B filing fees (which is a relatively high expense that the U.S. employer must bear).  The B-1 (in lieu of H-1B) status was created with the intent of facilitating travel to the U.S. by those foreign nationals who would normally qualify for a H-1B visa, but who simply needed to enter the U.S. for a brief period of time.

According to the Dept. of State’s Foreign Affairs Manual, to qualify for B-1 (in lieu of H-1B) status, a foreign national must qualify for H-1B status, establish non-immigrant intent (this is established by demonstrative strong ties to their home country), must be regularly employed abroad and their salary must be paid by their foreign employer.  While in the U.S. for a limited amount of time, they must continue to be paid by their foreign employer and not from the U.S. entity that they are performing services for while in the U.S. in B-1 (in lieu of H-1B) status. 

See 9 FAM 41.31 N11  - Aliens Normally Classifiable as H-1 or H-3. 

Once CBP was convinced that our Client qualified for B-1 (in lieu of H-1B) status, he was issued a multiple entry Form I-94, valid for six months.  The cost of this Form I-94? $6 to be paid to CBP at the Port of Entry. With this B-1 (in lieu of H-1B) status, the Client will now be able to carry out his duties as requested by his Canadian employer for their U.S. subsidiary and remain in strict compliance with U.S. immigration laws.

I-212, Application to Reapply After Removal, Approved in record time!

SRW Border Lawyers was notified last week that another I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, was approved! This was especially surprising due to the fact that the approval came only a month after filing the application. Recently, normal processing time for an I-212 application can take several months. 

You should file an I-212 waiver if:

• You were removed from the U.S. as an inadmissible alien through expedited removal proceedings under INA § 235(b)(1) that were initiated when you arrived at a port of entry; or
• You were removed from the U.S. as an inadmissible, arriving alien under INA §240; that is, removal proceedings were initiated upon your arrival at a port of entry in the U.S. (Note: the paperwork you received during your removal proceedings should indicate under which provision you were removed under); or
• You violated the terms of a Voluntary Departure order by not timely departing the U.S.

For more information, please visit our web page on I-212 waivers under the Border Solutions drop down menu.

If you were previously removed from the U.S. and are interested in filing an I-212 waiver, please contact our office so we can discuss the details of your case. 

By SRW BORDER LAWYERS