How can someone return to the U.S. after making a false claim to U.S. citizenship?

QUESTION: My brother is a U.S. citizen.  He is married and lives in Texas.  His wife lives in Mexico.  Eight years ago his wife presented herself as a U.S. citizen.  She was caught and given an expedited removal and five year bar. She has stayed in Mexico for the past eight years and has two children with my brother.vShe graduated from college in Mexico as a surgical techncian. I want to know if there is any way she can obtain any kind of visa so she can bring my niece and nephew to visit their father, aunt, and granddparents in the U.S.  Thank you so much.

REPLY: Thank you for your message.  While I cannot provide you with case-specific advice without first reviewing the details of your case, I can provide you with some general information that might be helpful.

Individuals who are charged with making a false claim to U.S. citizenship are inadmissible for life under INA 212(a)(6)(C)(ii).  An immigrant waiver is only available in certain cases when the individual reasonably believed that s/he was a U.S. citizen.  There is a nonimmigrant waiver available that can be applied for in connection with a nonimmigrant visa.  Anyone who has been subject to an order of expedited removal must also obtain permission to reapply for admission to the U.S. within the five-year period following the date of the expedited removal.  This application is made on Form I-212. 

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Withdrawal of Application for Admission

Foreign nationals who apply for admission and are told that they are inadmissible to the U.S. are eligible to request permission to withdraw his/her application for admission.  CBP officials have several choices when an individual applies for admission to the U.S. and is deemed inadmissible at the port of entry.

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Returning to the U.S. after being denied admission

QUESTION: My son is a 24 year-old Canadian citizen that was denied entry to the U.S. for overstaying his time.  He was allowed to withdraw his application for admission and sent back to Canada where he has remained for the last 4 months.  He has re-established residence, is employed and would like to visit his fiancé and infant daughter in the U.S.  He also has Lymphoblastic Lymphoma cancer for which he needs to receive post-chemo blood clinic tests from the hospital in the U.S. where he received the treatments.  He does not have any criminal record in any country.  Is there anything you can do for him?  Is there anything that can be done for him? 

REPLY: The first step is to determine whether your son accumulated any unlawful presence in the U.S., as that term is defined under the U.S. immigration law.  The next step is to review all of the facts and determine the best way to obtain his admission to the U.S. as a visitor.  It may be difficult for him to enter as a visitor because his fiancé and child are living in the U.S.  In cases like this, U.S. Customs and Border Protection (“CBP”) officials are concerned that the individual may be seeking entry as a visitor but with the actual intent of remaining in the U.S. permanently with his/her family members.  This presumption can be overcome.  We will usually assist our clients with the preparation of a package of documents demonstrating strong ties to Canada and his/her need to return to Canada following the visit. 

The need to obtain medical treatment in the U.S. is a permissible activity, which will be weighed by CBP officers in connection with the potential for immigrant intent.  In cases like this, we have assisted Canadian citizens with a request to CBP officials in Buffalo in advance of any application for admission to determine how CBP officials feel about the particular case and whether the applicant is likely to be admitted.  This is, however, assuming that the applicant does not require a waiver for unlawful presence. 

Unlawful presence and 10-year bar

QUESTION: I was removed in 2006 with a 10 year bar for unlawful presence.  I also filed an I-130 on April 27, 2001 and therefore made the cut-off date to qualify for adjustment of status under INA § 245(i).  My I-130 has been approved (August 2003).  I am in the fourth preference category – brother/sister of U.S. citizen.  It looks as though my priority date will be current in September 2012 based on the current visa bulletin.  

I do not have any criminal history anywhere in the world.  Only 3 traffic tickets during the 24 years I lived in the U.S.  I did commit one immigration offense by changing school without INS permission.  I came into contact with the INA because of wrong advice of a lawyer who suggested I file an application for "suspension of deportation" as a way of getting a green card. I was subsequently put into removal proceedings. I appealed my case to the BIA and to the 11^th Circuit Court of Appeals but to no avail. 

I have documented proof of favorable factors required, but not extreme hardship required for an I-601 waiver.  The extreme hardship is to myself.  I came to the U.S. at age 17 and left at in my 40s.  I cannot find work in my country. I have had zero income for a couple of years since removal. 

Can I apply for I-212 permission to reapply;I-192 waiver; and then come back to U.S. and file I-485 based on 245(i) or is there a better alternative? 

REPLY: It sounds as though your case is quite complicated.  While I cannot provide you with case-specific advice, I can provide you with some useful information. 

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Parole approved for U.S. wedding

On his way to the U.S. in order to prepare for and attend his wedding, this individual was issued an order of expedited removal by U.S. Customs and Border Protection (“CBP”) officials at the port of entry.  This individual was engaged to be married to a U.S. citizen, which is why the wedding was being held in the U.S.  The order of expedited removal charged him as inadmissible to the U.S. as an intending immigrant under INA § 212(a)(7)(A)(i)(I).  The charge was based upon an admission that he made to CBP officers that he was going to explore his immigration options in the U.S. (without departing to his home country) after the marriage in the U.S. and, if possible, apply for permanent resident in the U.S.  He has applied for admission at the port of entry as a visitor.  Applying for permanent residence within the U.S. (adjustment of status) is not permissible visitor (B1/B2) activity, which is why the expedited removal order was issued.  

Only days before the wedding, CBP officials at the same port of entry where the expedited removal order was issued agreed to grant this individual humanitarian parole into the U.S. in order to attend his wedding, which he and his fiancé had been planning for several months and for which several out-of-town guests had already made travel arrangements.  The parole was only granted for a short period of time on condition that the groom would leave the U.S. shortly after the wedding and pursue an immigrant visa from outside the U.S. – at the U.S. Consulate in his home country.  In connection with his immigrant visa application, he must also obtain permission to reapply for admission into the U.S. after being removed pursuant to INA § 212(a)(9)(A)(iii), which is applied for by submitting a Form I-212 application to the appropriate office within the U.S. Department of Homeland Security.  When/if the I-212 is approved, he will most likely be granted the immigrant visa and be re-united with his new wife in the U.S.