Notice of approval of a Form I-601 - "extreme hardship" - waiver was received in the office today! The waiver was required in order to overcome unlawful presence. More details to come!
The AAO reversed the decision of the USCIS Detroit field office director, which denied the application for permission to reapply for admission after removal [Form I-212], and concluded that the applicant had established that a favorable exercise of discretion is warranted. The applicant was ordered removed based upon the IJ finding that he had entered into a marriage for the purpose of obtaining immigration benefits. While the AAO considered it a negative factor that the applicant had failed to rebut the presumption of marriage fraud, the AAO also acknowledged that the weight accorded the marriage fraud finding is reduced due to the substantial countervailing evidence presented by the applicant on appeal, including statements from numerous individuals with knowledge of the marriage. The positive factors cited by the AAO in support of its decision include: significant family ties to the U.S.; lack of criminal record; owner of U.S. business and employer of U.S. citizens; beneficiary of approved Form I-129, H-1B nonimmigrant visa petition; length of time since alleged fraudulent marriage (10 years); and demonstration of good moral character for the past 10 years.
QUESTION: I lived in the US from August 1999 until May 2006. I initially came to US on F1 visa to do my Masters degree. By the end of 2002, due to poor grades, I was academically dismissed from the university so I became out of status. Within two weeks of academic dismissal, I was able to find an employer who filed for my H1B visa. Although my H1B visa was approved at the beginning of 2003 (valid for 3 years), it did not come with I-94 attached. I was instructed to go to my home country for visa stamping. Due to workload and other personal reasons, I could never manage to go to my home country for visa stamping. When my employer laid me off in May 2006, I simply went back to my home country within a week after my termination of employment. When I was leaving the US in May 2006, the airline official at the airport took my I-94 from my F1 visa that was attached to my passport. No questions asked. I later became a Canadian citizen in May 2011.
A few questions:
(1) Am I able to cross the border into the US now with my Canadian Passport?
(2) If I cannot cross the border, what is the process that I need to follow to obtain eligibility to cross the border?
REPLY: I cannot offer you case-specific advice without learning more about your case, but have provided some information that you might find useful.
Anyone who is admitted to the U.S. as a student for the duration of status (“D/S”) does not begin to accumulate any unlawful presence in the U.S. until either USCIS or an Immigration Judge formally revokes his/her status. In many cases, this does not happen and the individual does not accumulate “unlawful presence” under the Immigration and Nationality Act (“INA”) even though he/she remains in the U.S. after leaving school. If, however, USCIS or a judge has terminated the student status, the individual will begin to accumulate unlawful presence beginning on the date of termination. A period of unlawful presence that lasts between 6 months and 1 year creates a 3-year bar to re-entry. A period of unlawful presence that lasts for more than 1 year creates a 10-year bar. Thus, it will be critical in your case to determine when/if your F1 status was terminated/revoked by USCIS or an Immigration Judge.
Travelers to the U.S. need to be careful regarding their posts to social networking websites, which are being monitored by U.S. Department of Homeland Security officials. Two (2) British citizens were recently detained and refused entry into the U.S. based upon misunderstood jokes posted on twitter. An online article by Roop Gill outlines these individuals' experience upon landing at the Los Angeles airport. Read article.
QUESTION: In March 2011, I was going to the States to au pair for a family. I went to the airport with the impression that I didn't need a visa. When I got there I was interviewed and my passport was stamped "Refused in accordance with INA section 217 RO6020". I have received my Canadian work visa to work there for 12 months but I need to stop in the States to get my connecting flight to Toronto. I was wondering will this stamp on my passport be an issue at the airport? I seem to be going around in circles with various people I have spoken to. Any help would be much appreciated.
REPLY: It sounds as though you have been refused admission under the Visa Waiver Program based upon your intent to work in the U.S. (the VWP is only meant to apply to visitors). The result of being refused admission under the VWP is that you are no longer eligible to use the program. This means that you need to obtain a visa through the U.S. Consulate to travel to the U.S., even if it is only in-transit. The C visa is specifically for the purpose of foreign nationals traveling through the U.S. in-transit. The other option is to try to find a direct flight to Canada.