Getting B-2 after removal

[Boiler 46,121]

Yes

It was quite common for IT companies to bypass work visa requirements.

[MacUK 983]

Personally I think you should name and shame the company!

At the very least you should advise your colleagues that they are putting their future vacation options at risk by following company advice!

If, as you say, they do this all the time then you won't be the last people who'll get caught up in it.

[Boiler 46,121]

Probably not written in their employment handbook.

[Avery Cates 1,141]

Hi,

I will try to be brief:

Last year my company sent my girlfriend and me (we work on the same company) to our office in US for 3 months under a Visa Waiver Program (German company and we are from Spain with Spanish passports). They told us to avoid saying that we were going to our office in USA.

At a port of entry we said we were going for holidays and visit friends, then we were questioned by a CPB officer over 8 hours. At some point we recognized that we were going to the US office (we also had a lot of marketing material and business cards for an event we were attending at the same time).

We ended coming back to Germany being inadmissible to enter USA under INA 212(a)(6)©(I) and 212(a)(7)(A)(i)(I). The officer said that we could apply for a regular visa after 5 years but I can't find this statement anywhere and the company's lawyer who took a look said we can't go to USA ever again.

So the question is, is there any way we can get back to USA, even under a tourist visa? I really would like to visit some places and attend some developer events (I am a software developer). I read about the waiver I-601 but I think that is only if you can prove extreme hardship of being inadmissible.

It was a year ago and I already gave up but now I am trying again to get more info.

Thank you.

You're pretty much boned and won't be allowed into the US in any foreseeable future.

212(a)(7)(A) Inadmissibility due to Documentation Requirement for Immigrants

Foreign nationals may be inadmissible if CBP believes the foreign national intends to remain in the US permanently but does not have a dual intent nonimmigrant visa nor an immigrant visa.

There is no nonimmigrant waiver for 212(a)(7)(A).

Immigrant Waiver

211 and 212(k) allows the foreign national to ask CBP to waive 212(a)(7)(A) inadmissibility at the port of entry.

212(a)(6)©(i) Inadmissibility due to Misrepresentation

Foreign nationals may be inadmissible if he or she made a false representation in order to obtain an immigration benefit.

How to obtain a 212(a)(6)©(i) waiver

There are two types of waivers that apply to each grounds of inadmissibility: one for immigrants and one for nonimmigrants. Immigrants are foreign nationals who are trying to obtain an immigrant visa or green card. Nonimmigrants are foreign nationals who are trying to obtain or enter with a temporary visa such as a B2 tourist visa, F1 student visa or H1B work visa, among others. Some grounds of inadmissibility allows both immigrant and nonimmigrant waivers, some allow one and some offer no waiver at all.

Nonimmigrant Waiver

A nonimmigrant waiver can be issued for a one year term (five year term in limited circumstances) where the foreign national is eligible for a nonimmigrant visa and can establish his or her presence would not be harmful to US interests. When the application for the waiver is made, normally at the Consulate the will issue the nonimmigrant visa, the Consular officer will consider the following factors when deciding whether or not to issue the visa

1. The recency and seriousness of the activity or condition causing the inadmissibility;
2. The reasons for the proposed travel to the US; and
3. The positive or negative effect, if any, of the planned travel on US public interests.

Immigrant Waiver

212(i) and 237(a)(1)(H) provide immigrant waivers where

1. The foreign national is the spouse or child of a USC/LPR and can demonstrate that the US relative would suffer extreme hardship if the waiver is not granted; or
2. The foreign national is a VAWA self-petitioner and can demonstrate extreme hardship to himself or herself or USC/LPR relative.

Kindly ignore any poor formatting in this post.

Edited April 14, 2014 by Avery Cates

[ggsacks 82]

Thanks @Gegel, is there any way to check my current status? Like if I am banned for life or I can try in 5 years?

It also says that because INA 212(a)(6)( C )(I) I should get the proper waiver to enter USA in the future. Is this the I-192? It doesn't specify which one.

I guess saying it was for business would have worked but no one told us about it, instead my company told us that they do it all the time.

@Boiler wasn't that interesting, most of the time we were just waiting doing nothing without being able to speak to each other or being interrogated and intimidated with a pair of handcuffs on the table even when we told the truth, so, not so funny.

I'm sure you've come to this realization on your own already, but alarm bells should always ring immediately when you're asked to lie about something, and especially so when it's to government officials.

It may be that you are not familiar with international travel, visa processes or the seriousness of lying to immigration officers, but regardless I find it hard to have that much sympathy toward someone who has made that choice - especially as it's one of the (many) reasons that genuine, honest travelers face such scrutiny when entering the United States.

A company may have suggested you lie, but no one really forced you to. As far as the US is concerned, you're dealing with the ramifications of how you chose to represent yourself at the US border, not how someone else told you to.

[Boiler 46,121]

I 192 is the number, you do not apply for it, the CO will or not recommend it.

[sabina83 0]

I 192 is the number, you do not apply for it, the CO will or not recommend it.

@MacUK I think almost all employees of the company are aware of what happened to us.

@GiuseppeG You are right, we got so excited about the opportunity that we were completely blind and we were so stupid for accepting it without question.

@Boiler thank you for your help, it looks like it will be really difficult, but I can't lose anything else for trying if the time comes.

[sabina83 0]

@Avery Cates thanks for the info, we will try at some point in the future, we have nothing to lose.

[Boiler 46,121]

Allow 6 months or so.

[JnRMo 16]

That sounds shady as hell... it sounds for like 100 Euro you could have easily gotten the necessary visa for a short term business trip, depending what you were doing.

[sabina83 0]

I even have an email from one of the managers that reads:

"You all travel on a vacation visa. So when asked what you are doing in the US: it is a long vacation and visiting friends in SF. You are not working in the US."

@Boiler okay, I got it, however it won't be anytime soon. Thank you!

[jan22 3,064]

Because of the 212(a)(6)©(i) finding, you will never be able to use the Visa Waiver Program again. As others have indicated, even for a visa you will need a waiver of that ineligibility, but there's no way to apply for it in advance. Once you apply and the visa officer decides you qualify on all other grounds, they will decide whether or not they will support a waiver for you. If they won't that's if. If they will, it then goes to USCIS, who must also agree that a waiver is warranted. Then you get the visa -- but it will be for a limited time....most I've seen are for no more than a year. Since the misrepresentation was made so recently, you need to wait a LOT longer than 6 months, IMO. It might take a few years before both government offices agree that a waiver is granted -- it usually is because enough time has passed that they think you've learned the lesson and won't do something like this again.

[JayJayH 546]

There seems to be some confusion regarding the 5 year bar and lifetime bar.

The 5 year ban is for expedited removal. It's a ban you get if you get deported at a port of entry (as opposed to voluntary departure).

212(a)(6)©(i) is a lifetime bar for willfull material misrepresentation. Basically states that you knowingly lied in order to be admitted into the US. "Material" means that you lied about a fact that could sway the immigration officer's decision to let you in or not. For example, saying you're left handed, when you're really right handed is a willfull misrepresentation. But it's not material, as it's irrelevant to an officer's decision on whether to admit you or not. Saying you're coming to visit, when you're really coming to work makes it material.

You're dealing with two different agencies. The CBP is Dept. of Homeland Security, whereas an embassy is Dept. of State. They don't always speak the same language. The CBP was correct in telling you about the 5 year expedited removal ban, but did not tell you about the much more serious misrepresentation ban.

As stated, 212(a)(6)©(i) is for life, and you will not be able to obtain any visa to the US, immigrant or non-immigrant, without first obtaining a waiver. Visa Waiver Program is out of the question, but you may qualif for a B-2 tourist visa with a waiver.

To enter the US again as a tourist you'll need a waiver under 212(d)(3), as a opposed to an immigrant, who would need an I-601 waiver. Getting a waiver under 212(d)(3) is not nearly as difficult as the highly restricted I-601. The Foreign Affair Manual (http://mikebakerlaw.com/blog/wp-content/uploads/2012/12/FAM-40.301.pdf) reiterates the standards:

a) The consular officer may recommend an INA 212(d)(3)(A) waiver for any non-immigrant whose case meets the criteria of N2 FAM 40.301 and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such a family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.

b) The consular officer should consider the following factors, among others, when deciding whether to recommend a waiver:

1. The recency and seriousness of the activity of condition causing the alien’s inadmissibility;
2. The reason for the proposed travel to the United States; and
3. The positive or negative effect, if any, of the planned travel on U.S. public interests.

In addition to the above, you would obviously also have to convince the consular officer that you qualify for the visa being sought in the first place. If applying for a tourist visa, that you're a tourist, etc.

The gray area here is number 1. The recency and seriousness of the activity of condition causing the alien’s inadmissibility; - I do not believe you will be able to obtain a waiver for a couple of years. The seriousness here is debatable. On one hand it wasn't a "momentary lapse of judgement" but rather an eight hour ordeal. On the other hand, it wasn't drug smuggling either.

Do I believe that you can never, ever visit the US again? No.

Do I believe you'll visit the US again soon? Probably not.

Edited April 17, 2014 by Yang-Ja

[RhettVoe 282]

You will be older and gray before you ever get a tourist visa....having shown a willingness to lie to our border officials, well, why would any CO ever believe a word you said after that? It won't do any good to try and blame the company...you knew what you were going to say was not true, and yet you did it anyway.

the 5 year bar is for readmission, which would require an approved I-1212 if and when (read: never) you get a visa of any sort during that 5 year time span. As for a B2, you would first have to reestablish your now ruined credibility...how are you going to do that? By saying ..'gee, I'm sorry...?'...not likely. But even if you somehow managed it (and I cannot see how), you would then need an approved waiver under 212 d 3...something that a CO has to recommend for you to any remote chance of getting it.

Now, the company's lawyer or some equally ethically challenged immigration attorney will suggest one of two things for you to try/do soon:

(1) come up with some phony training that is 'necessary' for your growth and advancement in this equally ethically challenged company...or....the favorite...

(2) find some dodo to marry and then ask for a hardship waiver...of course, based on a relationship that will be measured in minutes, it will be impossible to accurately (and ethically) document the hardships said Amcit spouse will face if she has to live in Spain, which is NOT a third world country.

Realistically, neither of these two 'solutions' are likely to work...for a myriad of reasons....you and your companion are the reasons many other bona fide travelers/visitors will have difficulty getting tourist visas...no doubt the company and you thought this set of lies was very clever...and that our border folks are incredibly naïve...didn't quite work out that way, right? I think you'll be seeing a lot of Europe, but nothing of the US for years....

[sabina83 0]

Thanks,

I will try in a few years and see what happens.