help! don't know whether I need to file form i-601 or not?

[tim_hwv 0]

Hi everyone,

 

So, here is the situation:

 

I am a Canadian citizen engaged to an American citizen. We have been together for six years and have a history of visiting each other going back five years. We got engaged last year, and filed for the K1 fiancee visa (i-129F) in January of this year (2018), and just got our approval and notice that the visa is on its way from the NVC to the consulate in Montreal, just last week. So, at first, this was great news -- until we realised that we might have a significant problem.

 

So, the problem regards a couple of different instances where I (the Canadian beneficiary) was trying to enter the United States. In the first one, this was in January of 2016. So, this is what happened:

 

-my fiancee had been staying with me here in Canada for several months (about 4), in 2015. She returned to the US to complete an exam at the college she was studying online at (because the exams couldn't be written off-campus) with the intention of coming back to stay with me again for some time after that -- so, because it was supposed to be a short visit, she left most of her luggage (mainly clothing) behind, here, as well as her cat. She ended up getting a job offer while she was in the US, and because she needed the money, she decided it would be better for her to stay and take the job rather than coming back

 

-next, and this is where the first sort of problematic thing happened - we made arrangements for me to go and see her in the US, in January of 2016. I was issued an unofficial denial at the port of entry (i.e., the Canadian airport I was trying to fly out of) by the CBP agents there. I did some dumb things that led them to make this decision:

1. I did not have a return ticket, and said that I wasn't sure when I was going to return to Canada, but that I wouldn't overstay the 6 months time period that Canadians are normally eligible for (this was mistake 1, and maybe the biggest)

2. I showed up to the airport with two large suitcases -- both of which only had my then-girlfriend's (now fiancee) clothing and a few other belongings. I also had her cat with me because we wanted to return him home.

I had one much smaller carryon-sized suitcase that had my luggage in it.

(regarding the cat -- I do have some documentation showing that he is indeed from the US -- veterinary records showing that he had been there before he ever came here, in case that is relevant to anything)

 

I should have realised it before I tried to enter, but it later became obvious that, given my lack of return ticket, and excess of luggage, and pet that they did not know wasn't mine (they didn't really give me a chance to present any evidence of this, or ask for it, mind you) that the CBP agents I spoke to were concerned that I was attempting to illegally immigrate to the US.

 

So, I was waiting for my flight, and to speak to the CBP agents at the time, at the initial inspection area (the one that everyone has to pass through), without any clue that I was doing something wrong (ah...to be young, white, male, and entitled...sigh). I spoke to a CBP agent, explaining I didn't have a return ticket. He told me to go to the secondary inspection area, with no explanation as to why. I still didn't understand what was going on at this point, I thought they were concerned about my pet (it's normal to need to present documentation of your pet's having been checked out by a veterinarian before flying with them, so I thought they just wanted me to do that).

 

After waiting for several hours in the secondary inspection area, for my chance to speak to a CBP agent, I asked to leave, because at that point I had missed my flight. I had not yet talked to a CBP agent at that point, and nobody explained anything to me about why I was there. I spoke to the airline and they agreed to issue me a new ticket free of charge for the following day. So, I again went to the airport and attempted entry, still oblivious as to what was wrong.

 

The one exception to it being a repeat of day 1 was that I think it was on this day that the CBP agent in the initial inspection area (not secondary) rather sternly asked me to present my hands for fingerprinting (I can't remember whether it was the full 10 or just 2 -- I think it was all 10, if it matters). I still didn't really understand what was going on yet. After waiting for several hours again, I believe it was on this day that I finally got to speak to a CBP agent. he presented me a letter with a list of items regarding how I could establish "intentions and ties" to Canada (something I want to note, that I had never been asked to do on any of my previous visits to the US to see my then-girlfriend, now-fiancee). the CBP agent didn't really say much, except that I could try again but that I'd need to provide something showing my intent to return to Canada, or my ties to Canada. because I live with my dad and was unemployed at the time, I didn't have anything in the way of utility bills, or pay stubs, or a lease, or anything like that, to show that I would be returning to Canada. and having just graduated from university, I didn't have any education-related documentation showing that I would be intending to return to Canada. so the one thing that I could do was purchase a return ticket, which I did.
 

I then made one final attempt to enter the US on the following day. at this point, the CBP agent said he couldn't help me and that was "kind of a lone ranger right now" or something like that, because I had just finished university and couldn't prove I had any ties to Canada. they issued an unofficial denial of my request for entry, and advised me that it would be a bad idea for me to make any further attempts to enter the US, so I stopped trying to enter. at this point, things were quite emotional for me and my girlfriend -- those were some of the toughest days, and months afterward, that we've ever had.

 

And, lastly, before I turn to more recent events, I want to be clear about this -- despite not having a return ticket, I had every intention of returning to Canada; I absolutely was *not* intending to overstay the 6 month visa I was hoping to be issued. (I say this partly because of some hostility that I got from people when I posted a question about this on reddit when this incident happened). If my intent were to do that then I wouldn't have wandered cluelessly into a situation that only caused further problems.

 

Turning to more recent events: after a long period of not knowing what to do about this problem, we decided to again make arrangements for me to try to see her, in the spring of 2017. It was my intent, that if I was admitted and able to see her, to propose to her, so that we could then proceed with a fiancee visa application. At this point was crucial to that process that I see her since it had been so long since we last saw each other -- the requirement that we have seen each other in person within the last 2 years could not have been met otherwise. (Leaving aside how desperate we were to see each other after so long, which was also a big factor in deciding to do this.)

 

So, in April of 2017, I went to see her for two weeks, with a round-trip ticket this time. This time I went without her luggage, and left her/our cat behind in Canada. I was admitted successfully -- and here's where I'm concerned, and why I'm posting this in the i-601 forum. Since I was still unemployed, and still living with my dad, I still was unable to show any ties to Canada or intent to return, aside from the return ticket that I purchased this time. And I'd already been 'flagged' by the CBP due to my previous unofficial denial that I explained above. So when I went to the port of entry, they weren't sure why I "had an issue", (I'm guessing because the denial was unofficial, so there wasn't a detailed record of it) and they sent me to secondary inspection to ask me what it was about. Stupidly, I was not exactly expecting this (I guess I was hoping it would work out more smoothly than this). And I did something desperate, and dumb -- which is that I lied to the CBP agent I spoke to in the secondary inspection area. I told the agent that I was in the middle of a graduate program at a university here in Canada, and that I'd be returning to school for the fall semester. This was not true. I presented no documentary evidence of this (or anything else), I just said it to the agent.

 

It seems to me, without being able to read the agent's mind, that this was the basis on which they decided to grant me entry -- and they granted me a visa that applied only for the duration of my planned visit (plus a couple of days in case there were flight delays - and I did not stay for those extra days -- there were no weather problems and I returned to Canada on the day my plane ticket was originally for). I recall the agent saying that they understood that, given my situation, I was unable to present documentation of my intentions and ties to Canada, and that he needed 'something' to help me out with my situation (but I can't remember the exact details beyond that). I also remember the agent saying they were a bit confused as to why I had been denied entry back in January of '16 -- so I explained to him what I explained above in this post, about why I thought I'd been unofficially denied. They sent me back to sit down for a few minutes, and then called me back up, and reviewed my statements with me (including the misrepresentation I made about being enrolled in a grad program here), and then approved my request for entry. I was then able to see my girlfriend and get engaged, and we applied for our I-129F in January of 2018. As I said earlier, our petition was approved, and at this point we are waiting for it to go from the NVC to the Montreal consulate, and for the consulate to issue Packet 3 to me.

 

What I want to know is -- do I have reason to worry that this will affect the status of our I-129F petition? And do I need to file form I-601 in order to ask for a waiver of inadmissibility?

 

Specifically, with regard to form DS 160, which you need to fill out as part of the consular process, there is a question (in 'Security and Background: Part 4') that asks "Have you ever sought to obtain or assist others to obtain a visa, entry into the United States, or any other United States immigration benefit by fraud or willful misrepresentation or other unlawful means".

 

Now, initially I had thought uh-oh, and was panicking, that because I lied to the CBP agent I spoke to in Spring '17 about my status as a student, that I'm required to answer "Yes" to this question, or else perjure myself, which I absolutely don't want to do. In which case I believe I do indeed need to file form I-601, and I would really appreciate some guidance as to how to do that.

 

However: there are some things I'm not clear on, with regard to this:

1. whether my lie to the CBP agent counts as "fraud or willful misrepresentation". I've been searching google, trying to find out about this. I came across some text from the USCIS policy manual which explains (somewhat) what counts as "fraud or willful misrepresentation" -- that is, something that is a "material misrepresentation" -- i.e., " a false representation concerning a fact that is relevant to the person’s eligibility for an immigration benefit [33]".

 

So the question then becomes -- what counts as a "material" misrepresentation? And the USCIS policy manual also explains this: "The misrepresentation is only material if it led to the person gaining some advantage or benefit to which he or she may not have been entitled under the true facts". Now, it seems to me that the misrepresentation I made would not count as material, because I was already entitled to the immigration benefit I was asking for under the true facts -- the true facts being that I intended to visit my then-girlfriend, which I told the CBP agent, and that, being a Canadian citizen with no criminal record, I was entitled to a visitor's visa up to 6 months in duration.

 

However, I suppose that my misrepresentation about having been enrolled in school might "[tend] to cut off a line of inquiry, which is relevant to the applicant’s eligibility and which might have resulted in a proper determination that he or she is inadmissible. [36]" -- that is, if it would have been proper to determine I was inadmissible based on, first of all, the previous unofficial denial of entry in January 2015 in which it appeared to the CBP agent like I might have been trying to immigrate illegally (given the lack of return ticket, and all of the luggage and a cat they didn't know was not from Canada and technically didn't belong to me, as I explained earlier), and secondly, my lack of documentation with which I could prove my intent to return to Canada, and ties to Canada.

So I'm really not sure what to conclude here -- was my misrepresentation a "willful misrepresentation" that "led to [me] gaining some advantage or benefit to which [I ]

may not have been entitled to under the true facts"?

 

2. the USCIS manual also mentions that "Case law relating to the inadmissibility ground for fraud or willful misrepresentation has long recognized that a foreign national is not inadmissible if he or she made a timely retraction of the fraud or misrepresentation. If a foreign national timely retracts the statement, it acts as a defense to the inadmissibility ground." It continues a few lines down (the paragraph after next), "Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. [48] For example, an applicant’s recantation of the false testimony is neither voluntary nor timely if made a year later and only after it becomes apparent that the disclosure of the falsity of the statements is imminent. [49] A retraction or recantation can only be timely if the foreign national makes it in the same proceeding in which the foreign national gives the false testimony or misrepresentation. [50]"

I'm not sure what counts as the "proceedings" with regard to my issues -- would it have been the interview at the secondary inspection area when I entered the US in 2017, or could it be interpreted more broadly to include the visa application and interview application process? And does my answering 'Yes' to the question on form DS 160, Security and Background part 4, and then providing an explanation (including an admission of having lied, obviously) count as a "timely retraction" of the fraud or misrepresentation (assuming that what I did does count as that)?

Also, to be clear -- at this stage, USCIS has not contacted me or indicated in any way that they are challenging the veracity of the claim of enrollment I made. I am guessing, that it probably is too late for it to be a retraction, given that I'm now at the stage where I'm expected to explain my previous education history (in form DS 160, Present Work/Education/Training Information page) and, since I'm not going to continue in this lie, they'll be able to see that I was not in fact enrolled in any grad program the way I said that I was.

 

Thank you so, so much for reading this, I realise that it is a lot of words and there are some somewhat thorny/confusing issues to sort through here. My fiancee and I appreciate very much any help, advice, suggestions, and even just sympathy that anyone out there can provide.

 

Thanks again!

Edited August 24, 2018 by tim_hwv

[tim_hwv 0]

So, I'm just posting this here as well because I'm kinda really worried and I'd like to signal boost it a bit as I'm guessing it will get more eyeballs here than in the i-601 forum:

 

 

Apologies if this is considered spam -- mods feel free to take appropriate action if it is.

[Russ&Caro 1,549]

Whew! Having read other 601 threads and hearing the VJ experts give advice, my suspicion is that they'll express that this is a complicated case. They'll give you good advice but they'll caveat it with the advice that you need to see a good immigration lawyer who specialize in 601 cases.

 

You've done some very good research here but in the end it's probably an attorney who will get you over the finish line. Costly, I know.

 

p.s. I've never heard the details about "timely retraction". Very interesting. Over all, I think there is hope in your case which there often isn't in cases of wilful misrepresentaion. Good luck!

Edited August 24, 2018 by Russ&Caro

[tim_hwv 0]

I agree that I might need to consult with a lawyer, but we'll see what the VJ experts say, as you've suggested.

 

Thank you very much for taking the time to read through all of those words!

[aleful 1,905]

hi

 

you'll need to explain because there is a part that we can't read

 

 

[tim_hwv 0]

Just now, aleful said:

hi

 

you'll need to explain because there is a part that we can't read

 

 

I'm not sure what you mean by that? What I've posted here is a link to a thread in the Waivers (I-601 and I-212) and Administrative Processes section of the forums, so that's why you can only read a few words from the post.

[BenevolentSith 6]

The issue on whether your lie is a material misrepresentation would become moot eventually. Question 65 of your adjustment application reads as follows:

 

Quote

Have you EVER lied about, concealed or misrepresented any information on an application or petition to obtain a visa, other documentation required for entry into the United States, admission to the United States, or any other kind of immigration benefit?

Whether or not telling the border guard you were going to school when you actually weren't is material would not matter, as you would have to answer YES to the above question if you choose to be truthful.

 

Now, whether or not later on, they would revoke your green card or citizenship if you hide this information or whether they would find your misrepresentation to be material, is a completely different matter, but based on your story, you would have to disclose this incident if you want to do everything 100 percent in the correct way.

Edited August 25, 2018 by BenevolentSith

[tim_hwv 0]

53 minutes ago, BenevolentSith said:

The issue on whether your lie is a material misrepresentation would become moot eventually. Question 65 of your adjustment application reads as follows:

 

Whether or not telling the border guard you were going to school when you actually weren't is material would not matter, as you would have to answer YES to the above question if you choose to be truthful.

 

Now, whether or not later on, they would revoke your green card or citizenship if you hide this information or whether they would find your misrepresentation to be material, is a completely different matter, but based on your story, you would have to disclose this incident if you want to do everything 100 percent in the correct way.

Thank you for the response.

 

From what you've written, though, I think there might be some misunderstanding -- continuing the lie, or "hiding information" is not an option, as far as I'm concerned -- period, full stop.

 

(Part of) What I'm unsure about is when I tell them, on form DS 160, about how I lied to the CBP agent, does that count as willful misrepresentation or not? And, whether or not it counts as willful misrepresentation, that doesn't change my decision about how to answer the question; regardless, I'm going to answer the question truthfully. What it does do is change how they will view what I'm saying, and the accompanying application (I think, anyway, please correct me if I'm mistaken). If it is considered "harmless misrepresentation" then, as far as I understand things, I don't need to file an i-601 -- an explanation of what happened on form DS 160 would be sufficient. Whereas if it is considered to be "willful misrepresentation", then I do need to file form i-601 (at least, if I'm correctly understanding the purpose of the form, and I think I am).

[BenevolentSith 6]

I see. My guess is, it probably would not render you inadmissible, but I'm not an expert.

 

But I guess if they do charge you of misrepresentation (or 212(a)(6)(C)(i)), then they would notify you during your K visa interview of this and you need to then file the 601 waiver. At this point, there is really not much you can do, but wait until after the interview to see whether you would be found inadmissible.

 

You can try choosing 'No' to that DS160 question, and then explain your situation and why you think it's not wilful misrepresentation.

 

Hopefully they would not consider it material because you lied when you were seeking a non immigrant entry, and now you're looking to immigrate (though K visa is technically a non-immigrant visa, it's adjudicated as if you're applying for an immigrant visa, that's what I heard).

 

It's probably not a bad idea to seek an advice from a very competent immigration lawyer at this point (preferably one with experience handling Immigrant waiver and misrepresentation case).

 

Good luck.

 

 

[tim_hwv 0]

9 minutes ago, BenevolentSith said:

I see. My guess is, it probably would not render you inadmissible, but I'm not an expert.

 

But I guess if they do charge you of misrepresentation (or 212(a)(6)(C)(i)), then they would notify you during your K visa interview of this and you need to then file the 601 waiver. At this point, there is really not much you can do, but wait until after the interview to see whether you would be found inadmissible.

 

You can try choosing 'No' to that DS160 question, and then explain your situation and why you think it's not wilful misrepresentation.

 

Hopefully they would not consider it material because you lied when you were seeking a non immigrant entry, and now you're looking to immigrate (though K visa is technically a non-immigrant visa, it's adjudicated as if you're applying for an immigrant visa, that's what I heard).

 

It's probably not a bad idea to seek an advice from a very competent immigration lawyer at this point (preferably one with experience handling Immigrant waiver and misrepresentation case).

 

Good luck.

 

 

Hey again, thank you for the follow up!

 

I don't think that it's an option to select 'No' on that question, because if I do there isn't any opportunity to elaborate, if I understand correctly how the DS 160 form works -- so far I have only looked at the sample form, but as I understand it, you only get an option to provide further information if you select 'Yes' as your answer -- otherwise the only way I could provide further information would be to wait until the consulate stage, and then it would be too late, and I'd already have continued the misrepresentation past the point where I can properly admit that it happened. Putting it briefly, if I choose 'No' then that means I'm still lying, which I don't want to do.

 

It's a good point you're making about how it was previously a non-immigrant entry that I was seeking, though -- that's something I had not considered previously.

 

And thanks for the good wishes, too.

[tim_hwv 0]

7 hours ago, aleful said:

hi

 

you'll need to explain because there is a part that we can't read

 

 

So, I was just talking with my fiancee about this, and she told me that for some reason she's also having trouble, so I'm guessing it's some weird glitch where it is only working right for some people?

 

Thank you for bringing this to my attention even though I didn't get it at first!

 

anyway, here is another link to the thread, this time it should work:

 

http://www.visajourney.com/forums/topic/682405-please-help-not-sure-if-i-need-to-file-i-601-have-approved-i129f-for-k1-waiting-on-p3-from-montreal-canada/

 

Edited August 25, 2018 by tim_hwv

[debbiedoo 2,339]

my fiance travels across the border every couple of weeks and has for 2 and half years now. 

 

you didnt have proof of ties 

 

you cant bring someone elses belongings across the border 

 

You had no date for when you were returning to canada

 

You lied to border agents

 

the lie is what i would worry about. the other stuff would have no effect on a K1. Personally, i would hire a VERY good attorney to advise you on how to proceed with it.

[NikLR 13,232]

You can answer yes, explain what happened and let the chips fall where they may.  An I-601 can only be filed after the denial at interview as far as I understand (but I may be wrong.)  Because you're seeking a K1, the petition will die before the I-601 could possibly be adjudicated.  It may not, but as I-129F have a shelf life, if the US consulate in Montreal doesn't keep it alive, you'd have to repeat the process anyhow.

 

A CR1 in your case would have been a better option.

 

Keep in mind that you were entitled to nothing.  Visiting anywhere, is a privilege not something anyone is entitled to.  The only thing you are entitled regarding immigration is to is entry into Canada as a Canadian citizen. 

 

I can't see that information being material misrepresentation however because you didn't provide any false information that you were attending a grad program, the CBP merely took you at your word.  Willful, yes, material, not imho.  But I'm not a lawyer. 

[Boiler 46,276]

I fa I 601 is needed, you will not know until the interview you can file as a K1 as well as as a CR1, that makes no difference.

[NikLR 13,232]

1 hour ago, Boiler said:

I fa I 601 is needed, you will not know until the interview you can file as a K1 as well as as a CR1, that makes no difference.

The NOA2 as a K1 won't expire?