I-192 Waiver Approved For Canadian Citizen Who Wants To Visit Family In The United States

Application Type: I-192

Adjudication Time: Approx. 87 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Lester B. Pearson International Airport in Toronto, Ontario)

Grounds of Inadmissibility: INA 212(a)(6)(C)(i) – Misrepresentation (Sought admission to the U.S. using a counterfeit passport and filed an asylum claim under an assumed name in the early 1990’s)

Purpose of Entry into U.S.: Business & Pleasure Visits [B1/B2] – Visit with immediate and extended family in the U.S.

SRW Strategy: Evidence of Rehabilitation (no unlawful conduct since 1993, compliance with terms of previous waiver approval)

Approval Period: Five (5) Years

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.

Completing the ESTA Form after Visa Refusal under INA §221(g)

Question:  When completing the Electronic System for Travel Authorization (ESTA) form, do I have to disclose a recent visa refusal under §221(g) as a visa denial?

Answer:  Yes, when completing the ESTA form, foreign nationals should indicate that they have been denied a visa, even if they had a visa refused under §221(g).  CBP may deem the failure to disclose visa refusals as a misrepresentation under INA §212(a)(6)(c)(i), which has serious adverse consequences on the foreign national’s ability to enter the U.S. in the future, whether as a non-immigrant or as an immigrant. 

If a foreign national is unsure of their status, it is in their interest to consult with an experienced immigration attorney regarding how best to proceed - before unintentionally running afoul of the lifetime bar under INA §212(a)(6)(c)(i).

Q: How will an expedited removal order charging inadmissibility under INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I) affect my ability to reenter the United States?

Q: Dear SRW Border Lawyers,

Last month Customs and Border Protection ("CBP") issued an expedited removal order against me at the Peace Bridge port-of-entry. I was charged as inadmissible under both INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I).

I work for a U.S. based test prep company in Canada, but on more than one occasion I have entered the United States for additional training. I was compensated for my participation in these training sessions. Last month, I tried to enter the U.S. to attend a training session and teach a test prep course, but I was not allowed to enter and told by CBP that I needed employment documents because I was being compensated for my time. Against my better judgment, I attempted to enter the U.S. at another port-of-entry, the Peace Bridge, the following day.

During questioning at the Peace Bridge, I told the inspecting officer that I was entering the U.S. to go shopping. I was eventually pulled over and placed in a room where I was questioned further.  CBP officers searched my phone and found emails discussing the course that I was going to teach and how much I was going to be paid. The officer’s told me about the emails they found and then issued an expedited removal order against me.

How will this expedited removal order affect my ability to travel to the United States?

A: Based on your question, it appears that you were expedited removed under both INA § 212(a)(6)(C)(i) and INA § 212(a)(7)(i)(I).  Under the Immigration and Nationality Act (“INA”), a foreign national is inadmissible under INA § 212(a)(6)(C)(i) if he or she seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the U.S. or other benefit provided under the INA by fraud or willful misrepresention of a material fact. Furthermore, a foreign national is inadmissible under INA § 212(a)(7)(i)(I) if he or she applies for admission without a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the INA, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required.

Individuals who are removed from the U.S. by the expedited removal process are barred from reentering the United States for a five-year period. Pursuant to INA § 235(b)(1)(A)(i), individuals removed are not entitled to a hearing before an Immigration Judge (unless the individual seeks asylum under INA § 208). If, however, an individual stopped by an immigration officer is allowed to withdraw his or her application for admission (INA § 235(a)(4)), an expedited removal order will not be lodged and there will be no five-year bar. Only individuals order removed under INA § 235(b) are subject to the five-year bar. 

A charge of fraud or willful misrepresentation under INA § 212(a)(6)(C)(i) creates a lifetime bar for entering the United States. What this means is that an individual charged under this provision will be permanently barred from the U.S., unless they are granted a waiver. Therefore, even after the expiration of the 5-year bar, an individual charged with fraud or willful misrepresentation will still be barred unless they are granted a waiver.

I would encourage you to call our office to discuss all of your options. In cases where it was appropriate, we have had a strong record of attacking fraud charges and having them removed because they were improperly issued. For cases where removing the charge is not an option, however, we have been very successful in acquiring INA § 212(d)(3)(A)(i) and Form I-192 waivers. If you wish to enter prior to the expiration of the 5-year bar, we can also discuss a Form I-212, Application for Admission after Removal.

In the meantime, to learn more about the expedited removal process, INA § 212(d)(3)(A)(i) and Form I-192 waivers, and the Form I-212, Application for Admission After Removal, please visit our website.