Must a Canadian Citizen Submit Form I-192 and Form I-212 Simultaneously?

QUESTION: I am a Canadian citizen and require 2 waivers to enter the United States – Form I-192 and Form I-212.  If I submit both forms to waive both the 5-year ban and to waive the fraud/misrepresentation charge under INA Section 212(a)(6)(C)(i), can both forms be submitted together?  If so, can they be submitted together in one envelope and with only one fee?  Is this considered to be one application process, meaning that if my I-212 gets approved then my I-192 will also automatically be approved too? 

REPLY:  Since the creation of the Department of Homeland Security (“DHS”), there has been some confusion regarding the filing of Forms I-212, Application for Permission to Reapply for Admission Into the United States After Deportation of Removal, especially when a Form I-212 is being filed simultaneously with a Form I-192 by a Canadian citizen.  Although U.S. Citizenship and Immigration Services (“USCIS”) retains jurisdiction to adjudicate Forms I-212 in certain situations (such as when a Canadian has been subject to an order of expedited removal on grounds of INA § 212(a)(7)(A) only), a Form I-212 that is being filed simultaneously with a Form I-192 is adjudicated by U.S. Customs and Border Protection (“CBP”) officials.  This means that both Forms I-212 & I-192 can be filed together at any U.S. port of entry (click here to view a list of CBP ports of entry where Forms I-192 & I-212 are accepted).  Our office recently confirmed this information with CBP officials at the Port of Buffalo.  

Click to read more ...

Expedited Removal Order Vacated

Our office’s request to vacate an order of expedited removal was recently granted.  The expedited removal order was issued to a foreign national by U.S. Customs and Border Protection (“CBP”) officials at a port of entry at the time of his application for admission as a visitor.  Our request was granted by the CBP Port Director with jurisdiction over the port of entry that issued the order.  The CBP records relating to our client have since been updated to reflect that the expedited removal order has been vacated and that he is no longer inadmissible to the United States as a result of the expedited removal order.  

Click to read more ...

Question Submitted: Unlawful Presence and Nonimmigrant Waiver

QUESTION: I overstayed a U.S. visitor visa as a minor.  I have returned back to my native country.  Am I eligible to apply for a nonimmigrant waiver?  Or do I have to wait for the 10 year bar to be over?

ANSWER:  Under the U.S. immigration law, individuals do not accumulate unlawful presence as minors (under 18 years of age).  Therefore, any time that an individual overstays his/her U.S. visitor visa while under the age of 18 shall not be taken into account in determining the period of unlawful presence in the U.S.

Following the 18^th birthday, however, individuals who have overstayed their authorized period of stay begin to accumulate unlawful presence.  If an individual remains in the U.S. over six (6) months but less than one (1) year beyond his/her 18^th birthday, then that individual has accumulated enough unlawful presence to face a 3-year bar to returning to the U.S. if s/he subsequently departs the U.S. 

If an individual remains in the U.S. for over one (1) year following his/her 18^th birthday, then that individual has accumulated enough unlawful presence to face a 10-year bar to returning to the U.S. if s/he subsequently departs the U.S.  That is, unless the inadmissible individual applies for and receives a nonimmigrant waiver.

Nonimmigrant waivers for unlawful presence are provided for at INA § 212(d)(3).  Individuals can apply for these waivers at any time during the applicable bar and do not have to wait for the 3 or 10-year bar to expire.  Upon the expiration of the applicable bar, a nonimmigrant waiver is no longer required for unlawful presence.

The first thing to do in this type of situation is calculate whether or not there is an unlawful presence violation, as any time before the 18^th birthday will not be considered.  If there has been an unlawful presence violation, then the next step is to evaluate whether a nonimmigrant waiver is likely to be approved.   

Read more about successful nonimmigrant waiver applications.

INA § 212(a)(9)(B) – Unlawful presence

INA § 212(d)(3) – Nonimmigrant waivers

CBP Updates I-192 Information

U.S. Customs and Border Protection has updated its website content relating to Form I-192 waiver applications for Canadians. 

Read the most recent updates: http://www.cbp.gov/xp/cgov/travel/id_visa/indamiss_can_info.xml

CBP Releases Fiscal Year 2009 Data & Statistics

U.S. Customs and Border Protection ("CBP") recently released agency data and statistics for fiscal year 2009, which is available on its website: www.cbp.gov.

Acccording to CBP, the agency inspected 361.2 million travelers at 327 ports of entry.  CBP officers encountered more than 224,000 inadmissible aliens at ports of entry and apprehended more than 556,000 individuals between the land ports of entry.  CBP also continued to increase its workforce during FY 2009 to 57,519 - up 10 percent from 51,553 in FY 2008.  Of that increased 10 percent, CBP officers increased by 7 percent and agricultural specialists by 5 percent.  Additionally, CBP hired more than 2,600 new Border Patrol agents, bringing the total to more than 20,000 agents nationwide.

Read CBP News Release 11/24/2009

Read CBP Fiscal Year 2009 in Review Fact Sheet