Denial of Entry - Impact on Process

[sirrbaltimore 0]

Yes, they were denied entry when attempting to enter the US using the VWP in the company of their USC fiancee. The point is there was a denied entry, not a denied visa and the IV unit in London indicates they waited for a report from the POE before scheduling a K1 interview. This is not a discussion about the reasons for the denied entry as the IV unit didn't know the reason until they received the report.

My fiance from Indonesia had a denial of entry into the US more that 4 years ago because she truthfully answered the immigration agent at the POE that she had worked during her last visit to the U.S. The problem with her answer was that her last visit to the U.S. was on a B-2 tourist visa.

My understanding from reading up on this issue is that intent is a key factor in determining the severity of the visa term violation. In my fiance's case, she had only worked during the last two months of her 6-months visit. Would this indicate that the intent of her visit was not to find work in the U.S.? If so, do we have to prove it?

Can someone tell me how or if my fiance's situation will affect our K-1 visa application?

Thank you.

[SunDrop 59]

My fiance from Indonesia had a denial of entry into the US more that 4 years ago because she truthfully answered the immigration agent at the POE that she had worked during her last visit to the U.S. The problem with her answer was that her last visit to the U.S. was on a B-2 tourist visa.

My understanding from reading up on this issue is that intent is a key factor in determining the severity of the visa term violation. In my fiance's case, she had only worked during the last two months of her 6-months visit. Would this indicate that the intent of her visit was not to find work in the U.S.? If so, do we have to prove it?

Can someone tell me how or if my fiance's situation will affect our K-1 visa application?

Thank you.

I would recommend posting this as it's own subject. You're delving into the realms and strong possibility of visa denial, as she has admitted to an IO that she breached the terms of her visitor's visa. Whether she worked a day or during all 6 months, she worked. Whether she intended to work at the time of entry is a moot point.

[elmcitymaven 9,712]

If they had already applied for a K1 visa, they become inelligible to utilize the VWP.

How can this possibly be true when there are hundreds of VJ people on these boards who have done just that -- filed for a K1/K3/CR1/IR1 etc. and then visited their USC SO on the VWP? This question gets asked just about every single day, and every single day people answer the question by quoting from their own experience. I know you are a CBP officer so I'm really interested to hear your answer!

[a1cpat 0]

How can this possibly be true when there are hundreds of VJ people on these boards who have done just that -- filed for a K1/K3/CR1/IR1 etc. and then visited their USC SO on the VWP? This question gets asked just about every single day, and every single day people answer the question by quoting from their own experience. I know you are a CBP officer so I'm really interested to hear your answer!

I clarified this by way of PM.

[Rebecca Jo 1,962]

I'd really like to see this clarified as well.

If my memory isn't clear gone, I think there used to be another member long ago who was a former border agent.

[Nik+Heather 121]

Pushbrk, Can you answer the question about when the VWP denial of entry occurred in the visa process? If the denial happened after the part of the usual process when they check entries and exits, perhaps that is what caused the delay as they had to redo work that is usually already complete.

[Zenda 0]

Regarding travel on a VWP while the K1 is in progress - I would like to know the answer to this as well. I realize that the answer seems hit-or-miss and situation dependent.

My job is in public service and it's a difficult process to obtain more than a few days away from work. Her job offers a bit more flexibility, as long as proper notice is given. I will travel to Norway to be with her for her interview, but that is still a long time off.

Actually, let me expand on our situation a bit and then ask a question that I hope is relevant to the original question.

My fiance has been in the U.S. three times, all via the VWP and she has never had an overstay on any visit. The first time was a visit for a two weeks in 2008, the second was for two and a half months in early 2009.

The third time was for two and a half months, beginning in the summer of 2009. Upon her entry into the U.S., the officer stated that she would be permitted into the U.S. but she would not be permitted to re-enter for six months after that, as it shows that she has been visiting the U.S. frequently. We've interpreted this in the strictest sense - that the six months begins once she has left the U.S. - and while this is playing it on the safe side, it also means that she cannot return until mid-April at the soonest.

First question - is this considered a denial of entry, should this question ever be asked of us?

Second question - Is our interpretation correct? (This may be beyond the scope of this forum; if so, I apologize for that and would ask where I could find the answer.)

Thank you,

Z

[TracyTN 237]

That is not considered a denial of entry.

I would agree with your interpretation.

[SunDrop 59]

First question - is this considered a denial of entry, should this question ever be asked of us?

Second question - Is our interpretation correct? (This may be beyond the scope of this forum; if so, I apologize for that and would ask where I could find the answer.)

Thank you,

Z

No, it's not, as she was permitted entry. I would bet a fair amount of money that her 'warning' was noted however. The general rule of thumb is for every day of presence, 2 should be counted as presence in the home country upon return. I do not know if this is a written rule, or a general guide, but it seems that if she was able to enter for 3 months and was advised to allow 6 months between visits, then it's a reasonable assumption that it's correct.

It would be 6 months after her departure.

To be on the safe side, in your position, I would travel with a copy of the NOA1 (which shows you are following proper procedure for obtaining permanent residence in the US) and I wouldn't travel for such a long period of time.

In 2009, I travelled to the US for 4 days in January. I was warned by the CBP not to get married! I returned at the end of March for 3 weeks, no challenge or warning was given. 4 months later at the end of July, I entered for 6 weeks. No challenge or warning given. 14 weeks later, I entered the US again for 5 weeks and the only issue raised by the CBP was that if I had been entering via Canada by land, I would have been refused entry as I didn't have a letter from my daughter's father stating that he was aware that I had taken her to the US. I have no idea why the rules should differ between land vs. air entry nor between England and Canada as the originating country, but I wasn't going to challenge the discrepancy!

So, experience shows that she should be fine entering 6 months after her last departure date but it would be recommended to make it a shorter trip and you need to prepare yourself for the possibility that she would be refused. If she were, it wouldn't affect her K1 application, but she would be wasting money to try and enter again without a B2 tourist visa (she wouldn't qualify to travel on the VWP with a denied entry).

[Rebecca Jo 1,962]

Regarding travel on a VWP while the K1 is in progress - I would like to know the answer to this as well. I realize that the answer seems hit-or-miss and situation dependent.

My job is in public service and it's a difficult process to obtain more than a few days away from work. Her job offers a bit more flexibility, as long as proper notice is given. I will travel to Norway to be with her for her interview, but that is still a long time off.

Actually, let me expand on our situation a bit and then ask a question that I hope is relevant to the original question.

My fiance has been in the U.S. three times, all via the VWP and she has never had an overstay on any visit. The first time was a visit for a two weeks in 2008, the second was for two and a half months in early 2009.

The third time was for two and a half months, beginning in the summer of 2009. Upon her entry into the U.S., the officer stated that she would be permitted into the U.S. but she would not be permitted to re-enter for six months after that, as it shows that she has been visiting the U.S. frequently. We've interpreted this in the strictest sense - that the six months begins once she has left the U.S. - and while this is playing it on the safe side, it also means that she cannot return until mid-April at the soonest.

First question - is this considered a denial of entry, should this question ever be asked of us?

Second question - Is our interpretation correct? (This may be beyond the scope of this forum; if so, I apologize for that and would ask where I could find the answer.)

Thank you,

Z

Probably not.

But then probably depends on what they probably did or didn't stamp in her passport.

[Zenda 0]

Thank you for the quick replies.

To the best of my knowledge, nothing was stamped on her passport. We've agreed that the next time she enters the U.S., it would be on the K-1 visa. So we should avoid that situation entirely - but it does help to know that it isn't a denial.

Z

[Gemmie 142]

The thing is, there are so many stories out there of people that have used the VWP easily whilst waiting for their K1, and also of people that were denied entry. There are stories of border inspectors telling the applicant that they're NOT allowed to use the VWP during the process, and others that say it's fine. Some consulates (funnily enough, London is one) say that visiting during the process is fine as long as you have evidence of ties, and others say you must wait the process out.

And in regards to the poster that is an IO, you also bring more contradictions. Because I've been told consistently that the K1 visa is a NON-immigrant visa, hence why the applicant must file for AOS afterwards. That means although it's clear that there is eventual immigrant intent, it is in the same category as the other non-immigrant visas - which allow visits.

Furthermore, visiting DURING the process means that you clearly aren't in possession of the K1 yet, and are entering on the VWP as a "temporary visitor"... people should not be denied entry simply because they are waiting on a K1 because it's beside the point - the point is, they're currently a visitor, a tourist, and are free to use the services available until they are granted their visa. THEN it can be said that the person has immigrant intent.

Anyway, my point is, there are so many rumours about what is and isn't allowed during the process because there isn't a set of rules in place. It is simply "up to the IO" and we all know that they are human beings with their own set of beliefs, judgements and convictions. In fact, I wouldn't be surprised if the IO in this topic is one of the many that denies entry to the US based on his own beliefs that there shouldn't be a VWP - and that is due to his own relationship with someone outside of the VWP. Sorry if I've misjudged you, but that's my opinion.

[Trompe le Monde 1,107]

has there ever been someone who turned up at a POE with a pending K-1 with proof of ties back home who was turned away? I can't think if anyone.

[English Muffin 59]

I've never seen it reported on VJ in the time I've been here.

[Kathryn41 3,205]

Certain posts removed at the poster of the posts' request.

Edited January 29, 2010 by Kathryn41