Less than 3 months after receiving our request for relief, the U.S. Customs & Border Protection (CBP) vacated its Expedited Removal Order and INA 212(a)(7)(A)(i) Inadmissibility Finding against my client and granted her a retroactive Withdrawal of Application for Admission. Thus, the CBP no longer deems her to be an intended immigrant without a proper visa, as charged at the U.S. port of entry. By rescinding the Expedited Removal Order, it vacated the 5-year bar to entry under INA 212(a)(9)(A)(i).
Denial of F-1 Student Admission Despite Having a Valid Passport, Visa and Other Travel Documents
Section 212(a)(7)(A)(i)(I) states a person is inadmissible to the United States if he is an intended immigrant without a valid immigrant visa or other valid entry document. It is most often used by CBP to deny entry to a nonimmigrant who is believed to have engaged in unauthorized U.S. employment or has plans to do so. At primary inspection before the CBP, my client requested entry to the United States to begin her F-1 Optional Practical Training (OPT) with a legitimate U.S. employer. Along with her valid passport containing the F-1 student visa, she had her updated Form I-20 (Certificate of Eligibility for Nonimmigrant Status), Employment Authorization Document (EAD)/work card, and job offer letter.Prior to traveling back to the United States, she had used an online platform to secure an apartment that was close to her intended workplace. She paid a deposit after communicating with the landlord through text messages. She planned to go directly to the rental property upon arrival, check the room condition, and sign the lease if everything was satisfactory.
Instead of admitting her in F-1 status, the CBP inspected her electronic devices and found her communications regarding the apartment. They searched the rental address online and discovered that it was associated with a daycare business. By telephone call, they contacted an individual who they identified as the daycare operator and said they were informed that my client was expected to work there. She had no employment authorization to perform daycare job duties, which were outside her field of study.
Based on this incorrect information, my client was taken to secondary inspection for further questioning. Ultimately, the CBP presumed that she would work at the daycare business located on the first floor of the residential home where she had arranged to live. But she had actually planned to rent the room on the second floor because it was close to her place of employment.
Facts and Arguments Supporting Rescission of Expedited Removal Order and INA 212(a)(7)(A)(i) Finding
During secondary inspection, my client explained that she had learned of the daycare business, on the first floor, from the previous tenant who mentioned it may cause some noise. She made clear that daycare work was never discussed or agreed upon, and that such employment would violate F-1 OPT regulations and conflict with her scheduled work hours, as stated in the employer’s offer letter and recruitment posting. The F-1 OPT position also required in-office presence and did not permit remote work.
After searching her personal belongings and inspecting her phone, the CBP found only text-based conversations with the landlord regarding rental matters—no phone calls, no agreements, and no employment-related discussions with anyone from the daycare. Despite her repeated explanations, the CBP officers stated that if no employment arrangement existed, the daycare operator would not have provided details about workhours and pay on the telephone call.
In the Motion to Reconsider to CBP, I explained that my client’s sole purpose for requesting entry was to begin her lawful OPT employment. She had no plans or agreements to work at a daycare center or outside her field of study. It made no sense for her to work without authorization when she had already secured a full-time, paid OPT position.
Because she possessed all required travel documentation, had a qualifying F-1 OPT position directly related to her degree, and did not seek to work outside the scope of her authorization, there was no basis to determine that she was inadmissible under INA 212(a)(7)(A)(i)(I). The evidentiary record showed that her intent was fully compliant with U.S. immigration laws and rules.
The CBP made no finding that she had failed to maintain her F-1 status during prior stays, committed fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits, or otherwise violated U.S. immigration laws, rules or policies. Instead, it based its adverse decision on a presumption that she intended to engage in unauthorized employment upon entry. It disregarded my client’s credible testimony and documentary evidence showing she had a legitimate F-1 OPT position.
To support the Motion, we presented the employment offer letter and email communications with the F-1 OPT employer – both before and after the Expedited Removal Order – establishing she had intended to work in her field of study. We also provided documentary evidence reflecting my client had arranged to rent a 2nd floor room in a two-story residential home, not in a commercial building. But when she requested admission at the U.S. port of entry, the CBP looked up the address and found that it was associated with a daycare business (kindergarten service).
In her affidavit (written testimony), my client clarified that she knew a daycare was located on the first floor, but she never inquired about working there. In addition, we presented written declarations from the daycare manager and the landlord stating they did not discuss any employment, work or job arrangements with my client. All her text messages with the landlord and the prior tenant indicate that she sought to rent the 2nd floor room only.
In the legal memorandum, I described the hardships that the Expedited Removal Order caused or would cause my client. For example, the section 212(a)(7)(A)(i)(I) finding would make it very difficult for her to overcome the presumption of immigrant intent, under INA 214(b), to receive an F-1 student visa, B1/B2 visitor visa or other nonimmigrant visa in the future.
Furthermore, the 5-year bar would require her to apply for and obtain a Consent to Reapply for Admission Following Expedited Removal before a visa could be issued. Frequently called the “I-212 waiver” – which is different from the 212(d)(3) waiver – the CTR is the official remedy for lawfully returning to the U.S. before the 5-year bar expires. But it has several drawbacks.
If the person needs a visa stamp for the purpose of her trip to the U.S., she must go through the U.S. Consulate or Embassy to request the CTR in connection with the visa application. This creates an extra hurdle because the U.S. Consulate or Embassy must first recommend the CTR for it to be forwarded to the CBP’s Admissibility Review Office (CBP-ARO) for adjudication. If there is no recommendation, there is no review by CBP-ARO on the merits of the application.
In addition, even when the CTR is recommended, it takes several months for CBP-ARO to make a decision. And when granted, it is not transferrable to a new visa. Until the 5-year bar expires, the applicant must go through the process again if she needs a new visa for re-entry to the United States.CBP Grants Request for Relief
In its decision, the CBP noted that based on the applicable documents and information, a grant of discretion was appropriate. It rescinded the Expedited Removal order and all related charges, including the 5-year bar to entry. In lieu of an Expedited Removal Order, the CBP updated my client’s records to reflect that she withdrew her application for admission.
This is a true success story for the client and Dyan Williams Law PLLC.
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This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.
At U.S. ports of entries (e.g airports, seaports and land border crossings), the U.S. Customs & Border Protection (CBP) has broad discretionary power to issue you an expedited removal order (Form I-860) when it denies your admission on certain grounds.
When you present yourself for admission into the U.S. at a designated port of entry (e.g. international airport), you may be denied entry and issued an expedited removal order if the U.S. Customs & Border Protection (CBP) finds you inadmissible on certain grounds.
