Overcoming Expedited Removal for the Beneficiary of a Fiance Petition (I-129F)

QUESTION:  Thanks for your great informative site. I'm writing to inquire about issues I & my fiancée are facing relating to the K1 visa process. 

My petition (Form I-129F) was approved and my fiancée went to consulate for a K1 visa interview.  She was given a sheet citing INA § 221(g) and told that she is inadmissible due to removal at a U.S. port of entry.  Last year at the O'Hare Port of Entry, she was denied entry with B1/B2 visa.  All immigration related documents and copies that she had with her were taken away by the CBP officer and no copy was given back, including any notification showing the reason to deny entry.  The § 221(g) sheet is asking her to bring in some of those documents that we do not have.  My fiancée recalls that she was accused of being married (she's been single), working with B1/B2 (she clearly was not and only visiting friends and relatives) and other harsh false accusations. Since no documentation was provided, we've had no idea what the actual basis of her refusal was until the recent interview at the Consulate.  

We're currently seeking counsel to help address these issues most efficiently and also to respond to the request made in the § 221(g) letter given by the Consulate.  Since we feel that the accusations and denial at the port of entry was not done properly, we also want to address that before filing any waiver if needed.  Please let me know if you'll be able to help and how to proceed.

REPLY:  It sounds as though your fiancé may have been issued a Notice and Order of Expedited Removal (Form I-860) at the airport last year.  The issuance of such an order, in and of itself, creates a 5-year bar to entering the U.S. unless permission to reapply for admission is granted.  This permission is obtained by applying for an I-212 waiver.  Without knowing what country your fiancé is in, I cannot say for certain what the policy of your particular Consulate is.  Many Consulates, however, will accept the I-212 waiver and forward it on to the Department of Homeland Security (“DHS”) for adjudication. 

If your fiancé was charged with committing fraud at the port of entry, which is often used as the basis for an expedited removal, then she is inadmissible for life.  If this is the case, there is a waiver available, however, this waiver is much more difficult to obtain and requires a showing of extreme hardship to the U.S. citizen spouse.  This is why it will be extremely important to first find out what charges have been lodged against your fiancé so that we know what we are up against. 

We can certainly obtain a complete copy of your fiancé’s U.S. immigration file by submitting a Freedom of Information Act (“FOIA”) request to the DHS.  We may also be able to obtain copies of the expedited removal order and other documents directly from the port of entry.  Upon review of these documents, we should be in a position to recommend a case plan and strategy for your fiancé. 

If you are interested in discussing these options in more detail, please consider contacting my office to set up a consultation.