THE LATEST FROM SRW BORDER BLOG

Canadian Citizen Has I-212 Waiver Approved

Background: Client, a Canadian citizen, approached SRW about two years after he was issued an Expedited Removal Order (ERO) while applying to renew his TN status. During the adjudication of his TN application, Client was questioned in detail about his employment history in the U.S. and more particularly, about whether he had ever done anything outside of the scope of his non-immigrant status. While Client had honestly believed that he had never participated in any activities outside of the scope of his non-immigrant status, it was revealed that Client had inadvertently engaged in impermissible activities in connection with his wife’s prospective E-2 business.

Grounds of Inadmissibility: INA § 212(a)(9)(A)(i) - Alien previously removed pursuant to an Order of Expedited Removal under INA §235, solely under INA §212(a)(7)(A)(i)(I) [Immigrant Intent]

Consequence of ERO: As a result of the ERO, the Client was barred from reentering the U.S. for a five (5) year period – from March 2012 to March 2017. Notably, the Client and his family had been living in the U.S. since 2007 (in valid non-immigrant status), but due to the ERO, were required to return to Canada and re-establish their ties.
After returning to Canada, Client started an independent technical consulting business that served clients in both Canada and the U.S. Unfortunately, Client had lost many potential clients because he could not travel to the U.S. for meetings. Client’s biggest U.S. client had also expressed serious concerns regarding Client’s inability to travel to the U.S. for upcoming projects.

Options: After consulting with Client, we advised him that his options were to either serve out his bar of five (5) years or apply for permission to reapply for admission. We explained after the five (5) year bar was over he would not require a waiver since §212(a)(7)(A)(i)(I) is not a permanent bar. Ultimately, Client chose the latter.

SRW Waiver Strategy: Evidence of Rehabilitation (demonstrated remorse, rehabilitation and compliance with U.S. removal order); Established strong ties to Canada; Compelling reasons for entry (Inability to travel to the U.S. limiting ability to perform consulting services for current and prospective U.S. clients; U.S. travel ban impacting ability to look after U.S. investment properties; Lack of any criminal history); Nearly half of the removal bar was served at the time of filing.

Application Type: I-212, Application for Permission to Reapply for Admission Into the United States After Deportation or Removal

Adjudicating Agency: Admissibility Review Office (Filed @][2] Peace Bridge Port of Entry in Buffalo, New York)

Purpose of Entry into U.S.: Business and Pleasure Visits [B-1/B-2] or Employment in TN, H-1B or L-1

Adjudication Time: 77 Days

Exciting & Favorable Changes at the ARO

At a recent liaison meeting between AILA and the CBP Office of Field Operations, CBP’s ARO announced a significant change in practice.

  • Beginning in January 2017, the ARO will approve all I-192 waivers – initial waivers and renewals – for a 5 year period, with limited exceptions.
  • For individuals with waivers pending for over 1 year, the ARO will issue a decision within 40-60 business days after receiving a follow-up inquiry from the applicant or attorney of record.

AILA/CBP Office of Field Operations Liaison Meeting (April 6, 2016).

As background, CBP’s Admissibility Review Office (ARO) is responsible for adjudicating all nonimmigrant waivers – I-192 waiver applications filed by Canadians at a port of entry and waivers requested in conjunction with nonimmigrant visa applications at a U.S. Embassy or Consulate abroad. They are currently processing these types of waivers in approximately 4-6 months. However, some applicants face much longer processing times – some as long as a year or two – and there is no way to expedite these requests. [The relationship between petition approvals, waiver approvals and visa reciprocity schedules further complicates matters for those in need of a nonimmigrant waiver.]

The ARO’s internal policies are a significant factor as to why they are facing such a backlog in adjudicating these waiver applications. For Canadians, the ARO has historically only issued initial nonimmigrant waivers for a 1 or 2 year validity period, requiring many applicants to file a new application almost immediately after their first waiver is approved because of lengthy processing times. With the first renewal application, the ARO would usually issue renewals for a 2-3 year validity period, and with some exceptions for 5 years. Subsequent renewals are usually granted in 5 year increments. Accordingly, a waiver applicant would typically need to apply for their initial waiver and two subsequent renewals before generally being granted a maximum 5 year nonimmigrant waiver. Thus, applicants would need to apply for three waivers (at a cost of $585/application in government filing fees) in less than 3 years and the ARO would be adjudicating the same case three times within a 3 year period.

If you are Canadian citizen in need of an I-192 nonimmigrant waiver to enter the U.S., now is an especially good time to start working on obtaining your waiver. Notably, earlier this year, the Department of Homeland Security (DHS) proposed to increase the filing fee for I-192 waivers to $930 – nearly double the current $585 filing fee. [There is no filing fee for applicants applying for waivers at U.S. consulates abroad.] Canadians considering applying for nonimmigrant waivers should also be aware that RCMP reports (required for the waiver application process) are currently talking 3-4 months to process.

The SRW Border Lawyer team has extensive experience assisting individuals with obtaining I-192 waivers. If you would like to discuss the I-192 waiver application process and the services provided by our team, please call our office at 716-854-7525 or fill out our contact form to schedule a consultation.

I-212 Waiver Approved For Canadian Citizen

Background: Client, a Canadian citizen, approached SRW after being issued an Expedited Removal Order (ERO) in July 2012, while applying for L-1B status.

Consequence of ERO: As a result of the ERO, the Client was barred from reentering the U.S. for a five (5) year period – from July 2012 to July 2017. However, the bar would cause her to be limited professionally with her current employer since her employer wanted to assign her duties that would require traveling to the U.S. In addition, she had extensive family ties to the U.S.

Options: After consulting with Client, we told her the options were to either serve out her bar of five (5) years or apply for permission to reapply for admission after serving some of her bar. Client chose the latter.

Application Type: I-212, Application for Permission to Reapply for Admission Into the United States After Deportation or Removal

Adjudication Time: 157 Days – Application filed in October 2015 (more than three (3) years after July 2012 ERO)

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry in Buffalo, New York)

Grounds of Inadmissibility: INA § 212(a)(9)(A)(i) - Alien previously removed pursuant to an Order of Expedited Removal under INA §235, solely under INA §212(a)(7)(A)(i)(I)

Purpose of Entry into U.S.: Business and Pleasure Visits [B-1/B-2] or Employment in TN, H-1B or L-1

SRW Waiver Strategy: Evidence of Rehabilitation (demonstrated remorse, rehabilitation and compliance U.S. removal order); Establish strong ties to Canada; Compelling reasons for entry (Single mother with many family members living in the U.S. including parents, siblings and extended family members and U.S. travel ban impacting children’s relationships with U.S. family members; Inability to travel to the U.S. limiting ability to perform job duties for current employer; Lack of any criminal history); Over half of the removal bar was served at the time of filing.

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.