Denied Admission/Visa Question on Form I-495 (AOS from TN Status)

[D&D_NYC 58]

I entered on TN status back in September 2017 (my second, first was in September 2014). I got married to my USC husband in July 2018 and am now getting started on my paperwork for AOS. However, there are two questions in Part 8 of Form I-495 that I want to be absolutely sure I answer accurately: 

 

14) Have you EVER been denied admission to the United States?

15) Have you EVER been denied a visa to the United States?

 

So, in Sept. 2017 when I initially tried to cross back into the US to "renew" my TN (well aware that each TN is technically an independent status), the officer wasn't satisfied with the job description as stated in my letter -- not to mention I was really nervous and was not as clear in my answers as I would have liked -- and turned me away. This was at pre-clearance at Pearson Airport in Toronto, not at a US border crossing. I don't believe I got any formal paperwork, but I recall that the officer allowed me to "withdraw my application" and attempt to apply at a later date, rather than place me in any sort of "removal". I did still have a few days left on my previous TN, and the officer said that I technically could enter the US to sort out my affairs, but would have to return to Canada a few days later when my status expired to avoid overstay. There was no point to doing this, as I was able to return to my parents' home to get my paperwork sorted and inform my employer of what was going on. So I never stepped foot in the US. A few weeks later, after working with a lawyer to clarify the description and make sure my application was totally solid, I was granted my new TN status, was successfully paroled into the United States, and returned to work for the same employer. 

Given this history, would it be best to answer "YES" to Questions 14 and 15, and use the additional information page to explain the situation? Does withdrawing an application equate to a denial in the eyes of USCIS? Even though the TN is not technically a "visa," I imagine for the purposes of this form, this would be the best place to note this history. The form also says you can use the additional information page to elaborate if you answer "NO" but are unsure of your answer (also an option). Of course, I want to be 100% transparent and this seems to be the only place on the forms where I could make note of this.

 

Would appreciate any input from those who have been in a similar situation! 

[D&D_NYC 58]

Circling back here -- haven't gotten any responses (still curious if anyone has any experience with this!), but thinking that before we submit our paperwork, I might consult with a lawyer who specializes in TN to Green Card AOS just to be sure? 

[eckoin 211]

On 9/5/2018 at 2:35 AM, nerdese said:

This was at pre-clearance at Pearson Airport in Toronto, not at a US border crossing. I don't believe I got any formal paperwork, but I recall that the officer allowed me to "withdraw my application" and attempt to apply at a later date, rather than place me in any sort of "removal".

Ooh, a weird one.  Take this with a grain of salt - I am not a lawyer, and this isn't legal advice.

 

I have heard of people being given the option to withdraw their TN applications, and to return when they made changes.  It appears that this is what happened to you.

 

Have you received any notice at all, that outlines what happened?  If so, I would put Yes to the questions above, and explain in a letter, and attach the correspondence which you hopefully still have.  However, I assume the answer is actually no, so - 

 

If I were you, I would put No.  You weren't denied admission based on an application to enter--you withdrew your application to enter.  That's not a denial, per se, anyway.  If you withdrew your application, and it was accepted as such, especially with no correspondence from USCIS on the fact it even happened, it basically didn't happen for the purposes of admission.  You tried, but changed your mind.  Turned around at the border, so to say.

 

This, to me, is like getting a warning for speeding.  You still say no when asked if you have speeding tickets, because you don't--you got off with a warning, so you were stopped, you were checked, and you were told to do better next time--you have no actual, official, citation.

 

But then again, 'lying' on these forms is pretty bad.  

 

If I were you, I would put No, pick the best immigration lawyer in my area, and pay them $100 to ask what they think.

[D&D_NYC 58]

2 minutes ago, eckoin said:

Ooh, a weird one.  Take this with a grain of salt - I am not a lawyer, and this isn't legal advice.

 

I have heard of people being given the option to withdraw their TN applications, and to return when they made changes.  It appears that this is what happened to you.

 

Have you received any notice at all, that outlines what happened?  If so, I would put Yes to the questions above, and explain in a letter, and attach the correspondence which you hopefully still have.  However, I assume the answer is actually no, so - 

 

If I were you, I would put No.  You weren't denied admission based on an application to enter--you withdrew your application to enter.  That's not a denial, per se, anyway.  If you withdrew your application, and it was accepted as such, especially with no correspondence from USCIS on the fact it even happened, it basically didn't happen for the purposes of admission.  You tried, but changed your mind.  Turned around at the border, so to say.

 

This, to me, is like getting a warning for speeding.  You still say no when asked if you have speeding tickets, because you don't--you got off with a warning, so you were stopped, you were checked, and you were told to do better next time--you have no actual, official, citation.

 

But then again, 'lying' on these forms is pretty bad.  

 

If I were you, I would put No, pick the best immigration lawyer in my area, and pay them $100 to ask what they think.

I really appreciate your take!

 

This is sort of how I turned it over in my own head. I received a sheet when I was denied in Toronto, but it was only to say what the officers are looking for in TN applications, and what evidence I would need to provide the next time. I didn't sign anything, didn't receive any formal notice from any agency, etc. I'm inclined to put "no" and explain in the place provided at the end of the form, especially since I don't have any sort of documentation of a "formal" denial. I think consulting with a lawyer is a good bet. Definitely willing to shell out a few hundred bucks for the peace of mind. 

[eckoin 211]

4 minutes ago, nerdese said:

I really appreciate your take!

 

This is sort of how I turned it over in my own head. I received a sheet when I was denied in Toronto, but it was only to say what the officers are looking for in TN applications, and what evidence I would need to provide the next time. I didn't sign anything, didn't receive any formal notice from any agency, etc. I'm inclined to put "no" and explain in the place provided at the end of the form, especially since I don't have any sort of documentation of a "formal" denial. I think consulting with a lawyer is a good bet. Definitely willing to shell out a few hundred bucks for the peace of mind. 

If you put No, I wouldn't explain anything at all.  That's just asking for trouble, I think anyway.

 

Either put Yes and explain, or put No and leave it.

 

I'd talk to a lawyer.  Lawyers generally kind of suck at this, so I wouldn't necessarily even follow their advice, but if you get a "OH GOD PUT YES, not worth it" then that would answer the question.  If they say "eh I maybe would or wouldn't" then I'd say No and leave it at that.  If there is an actual record on the USCIS side, they will ask at the interview, and you can explain then, and your explanation is reasonable.

 

Another option is to call USCIS and see what they think.  

[D&D_NYC 58]

Thanks, @eckoin! Lots to think about. I appreciate you taking the time to respond.