I-192 Waiver Approved for 5 Years

Our firm recently received a notice of approval of a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, on behalf of a Canadian client.  Our client required a waiver due to inadmissibility pursuant to INA § 212(a)(6)(C)(i) for previously committing fraud upon seeking entry into the United States. 

Our client committed a misrepresentation 15 years ago when he used a fraudulent passport to travel through the U.S. on his way to Canada, where he applied for (and was granted) refugee status.  The use of a fraudulent passport was a last resort for this individual, who only used the passport in order to escape persecution in his home country.  Even though he was only in the U.S. for a period of less than 24 hours, his entry into the U.S. was secured by the presentation of a false passport, a fact that he later disclosed to U.S. immigration officials.  This act renders our client inadmissible for life.  

After he became a Canadian citizen, our client applied for his first nonimmigrant waiver (Form I-192) without the assistance of a lawyer in 2004.  This first waiver application remained pending for 4 years before it was eventually approved for a period of one year. 

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Questions Submitted: Deferred Inspection and Pre-Trial Diversion Programs

Can deferred inspection location and date be changed?

You may be able to reschedule your deferred inspection by contacting the port of entry directly and explaining your reasons for needing to reschedule.  Whether it will be rescheduled, however, will depend upon the policies and procedures of the particular port of entry.  You should also be mindful of the expiration date of the Form I-94 that you were issued at the time of your initial inspection, as these are usually only valid through the date of your deferred inspection as originally scheduled.

Read more about Deferred Inspections.

What does the immigration law say about pre-trial diversion programs? 

The Immigration and Nationality Act ("INA") does not say antying about a pre-trial diversion program.  Rather, it defines the term "conviction" for immigration purposes. Specifically:

The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been witheld, where--

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

INA Section 101(a)(48)(A).

In order to determine whether a state's specific pre-trial diversion program will result in a "conviction" for immigration purposes, it is necessary to review the specific facts and statutory language involved and then conduct a legal analysis using the INA's definition of what constitutes a "conviction."

It will also be important to review the language of the statute under which you have been charged, as convictions for some criminal offenses will not constitute grounds of removal.

Can your green card be taken based upon a pre-trial diversion program?

Your permanent resident status ("green card") can only be terminated by an Immigration Judge.  In order for an Immigration Judge to even hear your case, you would first have to be "convicted" as that term is defined by the INA.  Then, the Department of Homeland Security ("DHS") would issue you a Notice to Appear ("NTA") or Notice of Intent to Rescind your status.  The service of either of these documents by the DHS would have the effect of placing you into removal proceedings before an Immigration Judge.  You would then be scheduled for a hearing and have the chance to defend your case and/or apply for any available forms of relief from removal.

Parole Authorized - Spouse of U.S. citizen with previous expedited removal paroled to spend winter in U.S.

Our office just obtained a six (6) month parole on behalf of a Canadian client who is inadmissible to the U.S. following the issuance of an order of expedited removal.  Our client will remain inadmissible for five (5) years from the date of the expedited removal. 

Our client was expedited removed at a land border port of entry when it was discovered by U.S. Customs and Border Protection (“CBP”) officials that she had been living in the U.S. for over 20 years without any form of visa at all.  On the date of the expedited removal, our client’s intent was to return permanently to a home in the U.S. that she shared with her U.S. citizen fiancé.  After expressing this intent to CBP officials, our client was deemed to be an “intending immigrant” without proper documentation under INA § 212(a)(7)(A)(i)(I) and therefore issued the order of expedited removal. 

Following the expedited removal, our client married her U.S. citizen fiancé, who then filed an immediate relative petition (Form I-130) on her behalf.  After the filing of an immediate relative petition with U.S. Citizenship and Immigration Services (“USCIS”), it can take up to eight (8) months for a decision.  Upon approval of the I-130 petition, our client can apply for an immigrant visa (“green card”) at the U.S. Consulate in Montreal.  At that time, however, our client will also have to submit a Form I-212, Application for Permission to Reapply for Admission After Deportation or Removal, which will be required to overcome the five (5) year bar created by the expedited removal order. 

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Parole Approved - Parole of Witness in State Court Proceeding

Our office recently assisted a client with obtaining a parole into the United States for a period of three (3) weeks so that he could attend a civil trial in a state court.  Our client, who is inadmissible to the U.S. for a previous period of unlawful presence, needed to be physically present in the U.S. because he had been called as a witness to testify on behalf of the plaintiff in the lawsuit.

In addition to his trial testimony, which could last one week or more, our client needed to be present in the U.S. in order to prepare for testimony with the plaintiff’s attorney.

On behalf of our client, our office prepared a comprehensive parole request, which included a written submission together with detailed supporting documents, including the state court scheduling orders as evidence of the trial dates as well as a letter from the plaintiff’s attorney indicating that our client would be called as a witness, explaining the need to prepare for testimony, and confirming the dates on which our client’s presence was required in the U.S.

We also submitted documentary evidence of our client’s ties to Canada, including family, financial and property ties, so as to assure the government that our client will return to Canada upon the expiration of his parole period.

Our request was submitted directly to U.S. Customs and Border Protection (“CBP”) officials at our local port of entry.  We then met our client in Canada and accompanied him across the border to the port of entry where he was questioned by CBP officers and then paroled into the U.S. for the three (3) week period.  He was issued a Form I-94, Arrival/Departure Record, indicating that he was granted parole for the three (3) week period, which he will have to turn in upon his departure from the U.S.  The return of this Form I-94 will notify CBP officials that he has complied with the terms of his parole. 

Parole Overview

Pursuant to Section 212(d)(5)(A) of the Immigration and Nationality Act (“INA”), the Secretary of the Department of Homeland Security (“DHS”) may, in her discretion, parole any alien applying for admission into the U.S.  Such parole shall be issued on a case-by-case basis for urgent humanitarian reasons, which is why it is sometimes referred to as “humanitarian parole.”  

In the immigration context, the term “parole” has a very specific meaning.  A person who has been “paroled” has not been “admitted” to the U.S., nor have they made an “admission” under the immigration law.  This is true despite the fact that the individual (“parolee”) is permitted physical entry into the U.S. following inspection by an immigration officer.  A parolee is not “admitted” because most often s/he is inadmissible to the U.S.  

A grant of parole under INA § 212(d)(5)(A) provides for a one-time entry for a specific purpose.  There are no travel rights pursuant to a grant of humanitarian parole (as distinguished from advance parole, which allows applicants for permanent residence to travel abroad while their applications are pending), which means that an inadmissible non-citizen can make only one entry pursuant to their grant of parole.  If s/he departs the U.S. following that parole entry, s/he must obtain another grant of parole to re-enter (or else obtain the proper waiver, etc.). 

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