Within 5 months, the U.S. Customs & Border Protection (CBP) in San Francisco, CA vacated its Expedited Removal Order (ERO) and rescinded its INA 212(a)(6)(C)(i) inadmissibility finding against my client, upon receiving our Motion to Reconsider the adverse decisions.

The CBP agreed he should not have been charged as inadmissible under INA 212(a)(7)(A)(i)(I) (intended immigrant without proper immigrant visa or other travel document) to be issued an ERO, which barred him for 5 years from the United States, pursuant to INA 212(a)(9)(A)(i).

We also convinced the CBP that the permanent bar under INA 212(a)(6)(C)(i) was made in error. The legal argument and documentary evidence showed he did not use fraud or willfully misrepresent any material fact to obtain H-1B status.

Refusal of H-1B Admission to the United States Despite the Presentation of Valid Travel Documents and No Prior Violation of Nonimmigrant Status

My client presented his valid Canadian passport and Form I-797, Approval Notice for H-1B petition, when he requested admission in H-1B status. He was, however, placed in secondary inspection at the San Francisco International Airport for further questioning. Upon determining that the true purpose of his request for admission was unclear, the CBP issued the Expedited Removal Order under (7)(A)(i) and included the lifetime bar under (6)(C)(i) as an additional inadmissibility ground. The CBP did not give him the option of withdrawing his application for admission to the United States.

The Record of Sworn Statement (Form I-867A and Form I-831) indicated my client had good-faith intent to resume his employment at the H-1B petitioner, even though he had quit his position prior to his departure from the U.S. The Form I-797A, Approval Notice for the H-1B petition was still valid and was not withdrawn by the petitioner or revoked by USCIS.

Facts and Arguments Supporting Reconsideration of Inadmissibility Findings

Although my client took an extended break from his H-1B employment, he deemed it to be a “mutual separation” at most. It was, after all, the employer’s suggestion that he take a break when he declined to attend the company retreat due to health issues and personal reasons. He truly believed the company was open to having him resume his H-1B position.

While he was overseas, the employer was not required to pay him a salary and he was not obligated to do any work to maintain his H-1B status or avoid getting the H-1B status revoked. He did not consider his departure to be a final termination of employment or a paid leave of absence, and the H-1B petitioner did not indicate to him that it was.

Even if he had inadvertently terminated his employment, through voluntarily resignation, he did not violate his H-1B status or accrue any unlawful presence to be prohibited from re-entering the United States. He was not subject to the 3/10- year bar to reentry under INA 212(a)(9)(B)(i) when he requested re-entry in H-1B status.

Under the federal regulations at 8 CFR 214.1(l)(2), there is a discretionary grace period allowing H-1B workers to be considered as having maintained status following the termination of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.

During the 60-day grace period, the H-1B worker may find a new employer to file an H-1B extension of stay and change of employer request with USCIS. Otherwise, he may leave the United States within that period to avoid a violation of status. My client departed the United States well before the end of the grace period and spent his extended break in his native country.

At the time of his departure, my client and his manager discussed the possibility of his returning to his H-1B position after he recovered from his burnout. A month before he traveled back to the United States, he had a check-in call with his manager, which made him reasonably believe he could resume his position.

In the Motion to Reconsider, I pointed out that a terminated employee with no option of returning to his employment or of being rehired would not have such a check-in discussion with an employer. The petitioner gave him no confirmation of a final termination of employment and no notice that he must not use the H-1B Approval Notice to request admission to resume his position.  

When he requested H-1B admission at the U.S. port of entry, my client fully intended to continue discussions with his manager to restart his position. If he really had no plans to return to his employment, he had a Canada passport to request entry as a B1/B2 visitor to wrap up his personal affairs and continue business discussions with his manager.

An applicant may receive B-1 status if he is coming to the United States to engage in commercial transactions, negotiate contracts, consult with business associates, and participate in business meetings or conferences. My client could have legitimately requested admission as a visitor if his sole purpose was to engage in recreational activities or to have further employment negotiations or business meetings with his manager and then timely depart the United States to seek readmission in H-1B status.

He, however, chose to request H-1B admission because he fully intended to return to the employer. He assumed they were open to having him rejoin the company.

In the initial consultation with the client, I explained that he had two options:

1. File a Motion to Reconsider and Vacate the Expedited Removal Order and INA 212(a)(6)(C)(i) Bar with the CBP. A fully positive outcome in this requested relief gets rid of both the 5-year bar due to the Expedited Removal Order and the permanent bar under (6)(C)(i).

The drawback is that such motions are not routinely filed by CBP and are rarely granted, except in circumstances where there the decision was clearly in error.

It is also better to submit the motion within 30 days of the expedited removal order, which is not a statutory requirement, but in accordance with a regulation generally related to motions with an immigration officer. A favorable review on the merits, if any, is completely within the discretion of the agency.

2. File a Request for Consent to Reapply for Admission Following Expedited Removal Order and an Application for 212(d)(3) Nonimmigrant Waiver to be excused from the (6)(C)(i) inadmissibility finding. This is the more common remedy and official procedure under U.S. immigration law. If granted, the applicant may then receive the U.S. visa or admission to the United States as a nonimmigrant, if he is otherwise eligible for such entry.

The drawback is that a CTR and 212(d)(3) waiver grant eventually expire and may last for only a few months to one year. Therefore, the applicant may need to reapply for this relief if they travel overseas and seek readmission following the expiration of the CTR and waiver grant.

In addition, if the person needs a visa stamp for the purpose of their trip to the United States, he must go through the U.S. Consulate or U.S. Embassy to request the CTR and 212(d)(3) waiver in connection with the visa request. This creates an extra hurdle because the U.S. Consulate or U.S. Embassy must first recommend the requested relief for it to be forwarded to the U.S. Customs & Border Protection, Admissibility Review Office (ARO) for final review and adjudication. If there is no recommendation, there is no review by CBP-ARO on the merits of the applications.

Canadian citizens may file for the Consent to Reapply for Admission (by a Form I-212 application) and 212(d)(3) waiver (by a Form I-192 application) directly with the CBP-ARO when they do not need a visa stamp in their passport for the purpose of their U.S. entry. But in situations where they must have a valid visa for U.S. entry, must request the waiver through consular processing. They include:

• Treaty traders and investors (E Visa).
• Foreign citizen fiancé(e) (K-1 Visa), and the fiancé(e)’s children (K-2 Visa).
• A U.S. citizen’s foreign citizen spouse traveling to reside in the U.S. while awaiting final completion of the process of immigration (K-3 Visa), and the spouse’s children (K-4 Visa).
• Spouses of lawful permanent residents (V-1 Visas), and the spouse’s children who are traveling to reside in the U.S. while awaiting final completion of the process of immigration (V-2 Visas).
• Non-immigrants traveling to the United States for work (Non-Immigrant Visas), including:
  • Canadian government officials (A Visas), if entering the U.S. for temporary or permanent assignment.
  • Officials and employees of international organizations (G Visas), if entering the U.S. for temporary or permanent assignment; and
  • NATO officials, representatives, and employees, only if they are being assigned to the U.S. (as opposed to an official trip).

Motion to Reconsider with CBP Results in Favorable Decision Within 5 Months

As a Canadian citizen, my client could have applied directly with CBP-ARO for the Consent to Reapply for Admission and 212(d)(3) waiver to seek re-entry in H-1B status or B1/B2 visitor status. But he opted for the Motion to Reconsider because the evidence showed the Expedited Removal Order and INA 212(a)(6)(C)(i) findings were made in plain error.  Such harsh penalties were unnecessary, particularly when he clarified his legitimate reasons for requesting H-1B admission during secondary inspection at the U.S port of entry.

The normal processing time for a Motion to Vacate Expedited Removal Order with CBP is at least 6 months and, in some cases, may take 1 year or more. Because such motions are not the common or official procedure under statutory law, no Acknowledgement Notice or Receipt Notice is provided by CBP. A review by CBP is completely within their discretion.

While processing times are similar for Consent to Reapply for Admission and 212(d)(3) waiver applications, status updates may be requested from the U.S. Consulate or U.S. Embassy or, in some cases, from the CBP-ARO. This is also the formal route that U.S. immigration agencies expect applicants to take when they have INA 212(a)(9)(A) and (6)(C) bars.

In this case, the CBP agreed to vacate the Expedited Removal Order and the willful misrepresentation charge, as well as corrected the record with a retroactive grant of withdrawal of his application for admission. This timely and wholly positive outcome is a true success story for Dyan Williams Law PLLC.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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