Port of Entry Parole

QUESTION: I am a Canadian citizen who attended school in the U.S. from 1994-1998. After the program I worked for 1 year under the OPT. I was engaged to a US citizen in 2001, but we did not end up marrying. At this time I was living and working in the US. I met a Hungarian citizen who was visiting the US and we had a child who was born in the US in 2008. Since then she has illegally (no custodial order) taken our child to Hungary and I have a Hague hearing for international child abduction pending. The case was taken by the US Central authority in Washington DC. I am currently married to a US citizen and have been trying to get my child back to the United States for almost 2 years. In December of 2009 I came back to Canada from the US with my US fiancee (we got married in Canada in February 2010 and filed for a K-3 and I-130) and upon returning to the US I was given a withdrawal of entry application because they believed I was an intending immigrant. I am aware that if I was married before I left the US I would not have issues, but the primary reason that I left the US in December was to attend a court hearing in Hungary in January of 2010. I was told by the US consulate in Canada that I can try to cross the border again and provide evidence that I am involved in proceedings regarding my son. I tried to cross again with documentation regarding my son's abduction and again was given a withdrawal as they stated I needed to have ties and equities to Canada. I have two questions. Am I eligible for point of entry parole? The customs and border patrol have withdrawn my application twice even though they are aware that I was living and working in the US without authorization and have not issued a refusal or made me subject to a bar. When I go to my interview in Montreal given my unique circumstances is it likely or possible that the interviewer will deny my visa and require that I get a waiver for inadmissibility? Or worse, is it possible that my visa will be denied in the US before being sent to the consulate in Montreal? Can you offer any assistance in these issues? 

REPLY:  I am so sorry to hear about your unfortunate situation.  I do have good news for you though.  Specifically, you should be able to obtain entry for the purpose of attending the hearing regarding your son.  You also do not appear to require a waiver of inadmissibility.  This interpretation, however, is only based upon the facts provided above.  Before giving you a complete professional analysis, I would like to make sure that I have completely reviewed all of the facts of your case. 

We can certainly prepare a parole application package for you in advance of your desired date of entry and will submit it to the border in advance.  While CBP does not typically like to pre-adjudicate a request for parole, the officials will usually tell us if there is something that troubles them about the case and give us the opportunity to correct it before the date of entry.  We then pre-arrange a date and time for the application at a local port of entry and can meet you there to make sure things go smoothly. 

With respect to the need for a waiver, it does not sound like you accumulated “unlawful presence” as it is defined in the Immigration and Nationality Act and, therefore, you should not require a waiver of inadmissibility in connection with your immigrant visa.  One can only accumulate unlawful presence if you remain in the U.S. beyond the date on which your period of authorized stay expires.  Since Canadians are visa exempt and are not given a specific departure date upon entering as visitors, you would not have accumulated unlawful presence on any such visits.  Similarly, F1 students are admitted for the duration of status (“D/S”), which has been interpreted to prevent the accumulation of unlawful presence because there is no specific date of departure provided for. 

Finally, you will only need to worry about your visa petitions being denied in the U.S. if your marriage is not lawful.  If you completed all the forms accurately and have a legitimate marriage, then you should be fine. 

The information provided above is based upon the basic facts that were provided in your message.  Before providing you with a complete professional analysis and recommendation for a case plan, including the applicable legal fees, I would need to know more about your specific case.  If you would like to submit additional information and receive a complete professional analysis regarding the strength of your waiver case, I suggest calling our office to set up a consultation.