Can U.S. Customs and Border Protection Charge Me With Additional Grounds of Inadmissibility When Adjudicating My I-192 Waiver?

QUESTION:  I entered the U.S. as a visitor in 1997 and then overstayed my authorized period of stay for 3 years.  I then departed the U.S. and applied for another visitor visa in 2003 at a U.S. Consulate abroad.  The Consulate approved my visa application and I traveled to the U.S. with no problems until 2004 when I was told that I was inadmissible for a period of 10 years due to my previous overstay.  I was told that I was inadmissible for a period of 10 years under INA Section 212(a)(9)(B)(i)(II) for unlawful presence and that I needed to obtain a waiver.  Since I had become a U.S. citizen, I was told to apply for the waiver by filing Form I-192 with Customs and Border Protection officials.  I filed Form I-192 on my own, without a lawyer, and it was approved.  The waiver, however, says that I am inadmissible under INA Section 212(a)(6)(C)(i) as well as 212(a)(9)(B)(i)(II).  I later learned that Section 212(a)(6)(C)(i) is a lifetime bar for fraud.  Can Customs and Border Protection officials bar me for life even though a fraud charge even though this has never come up before?

REPLY:  In short, yes, U.S. Customs and Border Protection (“CBP”) officials can charge you as inadmissible at any time so long as there are sufficient facts to support the charge. 

You are definitely in a difficult U.S. immigration situation.  While I cannot provide you with a complete professional analysis without more research and investigation into your particular case, I have provided you with my preliminary analysis based upon the information you provided below.

By overstaying your I-94/visitor visa during 1997-2000, you accumulated a period of unlawful presence of over one year.  Accordingly, you are inadmissible to the U.S. for a period of 10 years pursuant to INA § 212(a)(9)(B)(i)(II).  This 10-year period began to run on the day you departed the U.S., and you will no longer be inadmissible under INA § 212(a)(9)(B)(i)(II) once that 10-year period expires.  If that was the only ground of inadmissibility to which you are subject, then you would be able to enter the U.S. without a waiver when the 10-year period expires.  Unfortunately, however, it sounds as if an additional ground of inadmissibility has been lodged against you.

INA § 212(a)(6)(C)(i) renders inadmissible any noncitizen who by fraud or willfully misrepresenting a material fact seeks to procure a visa into the United States.  This ground of inadmissibility creates a lifetime bar to admission into the U.S.  This charge was most likely lodged against you based upon your failure to disclose your presence in the U.S. from 1997-2000 when you applied for your second visa at the U.S. Consulate in 2003. 

When noncitizens apply for visitor visas (B1/B2 visas) to the U.S., they must each complete Form DS-156, Nonimmigrant Visa Application form.  A copy of this form is available at https://evisaforms.state.gov/ds156.asp.  As you can see, question #29 asks:

• “Have you ever been in the U.S.?”
• “When?”
• For how long?
• and then instructs applicants to “Enter additional visits to the U.S. here” and provides additional space to do so.

At the end of the Form DS-156 all applicants must provide a signature at #41.  By signing this form, an applicant certifies that s/he has read and understood all the questions set forth in the application and that the answers furnished on the form are true and correct to the best of his/her knowledge and belief.  The certification includes the language: “I understand that any false or misleading statement may result in the permanent refusal of a visa or denial of entry into the United States.”

In your case, if you had truthfully completed Form DS-156 and disclosed your previous period of unlawful presence in the U.S. following your overstay (1997-2000), you should have been refused a visa in 2003 due to your inadmissibility under INA § 212(a)(9)(B)(i)(II).  You were not, however, refused a visa to the U.S. but were issued a visitor visa despite your inadmissibility in 2003.

If you in fact knowingly failed to disclose your prior period of unlawful presence on Form DS-156 and at your visa interview in 2003, then you are inadmissible to the U.S. for fraud.  You will require a waiver for life.  If you wish to continue entering the U.S. as a visitor, you must continue to apply for nonimmigrant waivers by filing Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, with U.S. Customs and Border Protection (“CBP”) officials. 

It appears that the CBP officials who adjudicated your I-192 waiver application determined that you committed fraud in obtaining your visa in 2003.  It is difficult to say whether this charge is based upon information contained in your U.S. immigration file or whether this conclusion was drawn based only upon the fact that you obtained a visa in 2003 despite being inadmissible.  Without more information, including the contents of your U.S. immigration file, we cannot confirm the basis of the fraud charge or whether it was properly lodged against you.  The information can be obtained through a request pursuant to the Freedom of Information Act.