How to overcome a charge of inadmissibility as an "intending immigrant" under INA Section 212(a)(7)(A)(i)(I)

QUESTION: I’m U.S. citizen married to a permanent resident of Canada.  My wife received a B-2 visa last year.  However, the visa was canceled by the immigration officer at the port of entry because we are married and she wanted to visit me just for 8 weeks.  The immigration officer noted in her file that: “She is in violation of section 212(a)(7)(A)(i)(I), and she has intention to live permanently in the U.S.”  This was not the case.  My wife still had her studies to finish there in Canada, and her Canadian immigration to complete. 

It is possible to apply for nonimmigrant waivers for permission to reapply for admission into the U.S.?

When my wife becomes a Canadian citizen, can she enter the U.S. with her Canadian passport without problems?  Can the immigration officer at the port of entry stop her again?  What can she do - we do not want to have problems with immigration.  Thanks in advance. 

REPLY:  I am sorry to hear about your wife’s unfortunate situation at the U.S. border.  This is a rather common problem faced by the spouses of U.S. citizens – U.S. Customs and Border Protection (“CBP”) officials almost always assume that the spouse of a U.S. citizen is planning to enter the U.S. for the purpose of permanently joining the U.S. citizen spouse.  Hence, the charge under INA § 212(a)(7)(A)(i)(I) as an “intending immigrant.” 

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Can I challenge my expedited removal order?

QUESTION: On October 13, 2009 I arrived at the Houston, Texas Airport.  This was the first point of entry on my way to JFK in New York from Trinidad and Tobago. When I approached the immigration officer, he asked the normal routine questions and then asked me to step aside.  I was escorted to a separate room by another officer, and then a third officer informed me that a social security number is registered in my name and that I am not authorized to be in the U.S. (I am a Canadian citizen).  I told the officer that I did not know of a number; I was then taken to another room where I spent hours being interrogated by officers.  I was questioned about my time I spent in the US in 2007, which is when I spent five months there to explore job and education possibilities.  While there I mentioned that I assisted my aunt with whom I lived with her son and got about $150.00 per week as a stipend to assist with my needs and then returned to Canada. The immigration officers in Houston then slapped a ban on me to not return to the U.S. within a five year period saying that it's because I got money for services rendered to my aunt.  I did not know that it was considered illegal to accept cash from a family member.  I was then taken to a cold cell with no bed where I spent the night and sent back to Trinidad the day after. I would like to challenge the order, what advice would you give to me? 

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Is it possible to get an I-192 waiver to work in the U.S. in TN status?

QUESTION:  I have Form I-192 waiver question.  I am a Canadian who was working in the U.S. on a E2 visa.  I accidentally overstayed my I-94.  My visa said it was valid for till 2012, but the I-94 was only valid until March 2009.  I didn't understand the point of the I-94 and thought I was legal until 2012.   I now have a 3 year ban.  

Is it possible to get an I-192 waiver to work in the U.S.?  I have an employer who wants to hire me on a TN (software engineer) for 3 years.  I have no criminal records or anything in that manner. 

If I can get a Form I-192 waiver, how long will it take?  Will you be able to expedite or help the process? 

REPLY:  To answer your first question, yes, it is absolutely possible to obtain an I-192 waiver in order to work in the U.S.  In fact, employment opportunities in the U.S. are some of the stronger reasons that can be provided in support of a waiver application.  As you may already know, U.S. Customs and Border Protection (“CBP”) considers three (3) factors when adjudicating I-192 waiver applications: 

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Can a U.K. national apply for a B1/B2 visa at a U.S. Consulate in Canada?

QUESTION:  I have been having a bit of trouble applying for a B1/B2 Visa for the U.S. for one of our Crew members (we work on a foreign flagged privately owned Motor Yacht) and wondered if you could help me out.  Onboard we are a mixed crew of South African, American and British and all are in possession of 10-year B1/B2, except one. 

This girl is a British Citizen (who had a 1-year B1 exp in Jan) and we were applying to get her a B1/B2 Visa for the U.S at the embassy in Guadalajara.  We were told that since she entered Mexico on a tourist visa she would not be allowed to apply there for a B1/B2 – that she has to have some kind of residents visa (the law has changed recently as other crew members did exactly this last year). 

Now I am looking to send her up to Canada in order to apply for her B1/B2.  I just want to make sure that as she will be entering Canada on a tourist card that she will not encounter the same problem. I have tried and tried to talk to/email someone at the Vancouver Consulate. Have you got any idea about this ? 

REPLY:  In our firm’s experience, only permanent residents and citizens of Canada are permitted to apply for visas at U.S. Consulates located in that country.  Therefore, a visitor in Canada such as your colleague will most likely not be permitted to apply for a B1/B2 visa at any U.S. Consulate in that country. 

Has your colleague attempted entering the U.S. pursuant to the Visa Waiver Program (“VWP”)?  Under the VWP, all British citizens may enter the U.S. as visitors (for business or pleasure) without a visa for periods of 90 days or less.  You can read more about the VWP at the Department of State’s website: http://travel.state.gov/visa/temp/without/without_1990.html#vwp. 

If your colleague still wants to obtain a B1/B2 visa, she may at least want to consider applying for admission to the U.S. under the VWP until she can get back to the U.K. and make a formal visa application at the U.S. Consulate in that country. 

Previously Removed & Unlawful Presence - Waivers of 10-Year Bars

QUESTION: I used to live in the United States and applied for political asylum while I was there.  I was eventually issued a removal order.  After the removal order, however, I remained in the U.S. for 5 years.  After 5 years, I got Canadian immigration and moved to Canada.  2 years ago I was going to the U.S. but was stopped at the border and after my record was checked I was told I have a 10-year ban.  I am now a Canadian citizen.  

REPLY:  Thank you for your question.  While I cannot tell you the exact dates on which the applicable 10-year bars will expire in your case, you should be able to figure it out based upon the information below. 

Since you have been ordered removed by a United States Immigration Judge (“IJ”), you will require permission to reapply for admission (Form I-212 waiver) for 10 years following the date of the IJ order of removal.  Thus, if your removal order was dated March 22, 2000 or earlier, you no longer require a Form I-212 waiver.  If it was issued after that date, you must apply for a Form I-212 waiver before you will be allowed to return to the U.S. as a visitor. 

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