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.” 

So long as your wife was only refused admission (or given permission to withdraw her application for admission) rather than issued an order of expedited removal (Form I-860), she will not require a waiver or permission to reapply for admission into the U.S.  Rather, she will need to apply for a new visa (or wait until she receives her Canadian passport) and return to the border once she is in possession of strong documentary evidence of her ties to Canada.  For example: a copy of the deed to her home/lease to her home in Canada; proof of full-time enrollment at a college/university in Canada and payment of tuition; proof of employment in Canada; evidence of her pending application for Canadian citizenship; evidence of property ownership in Canada, including a vehicle registered in Canada; Canadian bank account statements; evidence of Canadian insurance; copies of Canadian utility and telephone bills, and anything else that shows your wife is going to return to Canada at the end of her visit to the U.S.  

Once your wife is a Canadian citizen, she will no longer need a visa to enter the U.S., but she will still need to carry with her evidence of her ties to Canada.  She can be stopped at the border at any time, regardless of whether she has received Canadian citizenship.  In similar situations, we have accompanied our clients to the border for their first applications for admission following a refusal.  In these cases, we make formal requests that CBP update their computer systems to reflect that our client has been admitted without issue.  After these initial admissions, our clients have reported no problems traveling on their own.  

Have you considered sponsoring your wife to become a lawful permanent resident of the United States?  As the spouse of a U.S. citizen, she is considered an “immediate relative,” which means that a visa number is immediately available to her.  She will only have to wait the time it takes to process your petition and her application before she can enter the U.S. as a resident and receive her “green card.”  

I hope this information is helpful.  If you are still uncertain about her case and would like to receive a complete professional analysis, I suggest calling our office to set up a consultation.