IR1 Visa Denied at POE

[Crazy Cat 41,982]

24 minutes ago, Jesserose24 said:

Did you get approval from your Canadian company? It's not wrong, I've had personal experience with this. It can be done legally, which you may very well be doing. 

This has nothing to do with the OP's case......this is way off topic.  I am immediately unfollowing this thread.

I'm out.

Edited February 22, 2022 by Crazy Cat

[Mike E 11,741]

1 hour ago, Mike E said:

 Try this as a thought experiment: if an IV holder told a CBP officer that he plans of staying on day in the USA and then leaving for USA for 180 times and repeating that pattern indefinitely, what outcome would you expect?

Sorry meant to type “days” in the above and not “times”

[Kai G. Llewellyn 838]

1 hour ago, Jesserose24 said:

Did you get approval from your Canadian company? It's not wrong, I've had personal experience with this. It can be done legally, which you may very well be doing. 

Yes. HR gave it the okay.

Regardless, tax law is not relevant in the context of immigration law, which is what we are discussing here.

 

2 hours ago, Mike E said:

CBP suspects  incoming  LPRs of abandoning LPR status all the time and this is supported by the INA.  I don’t see why the the INA would prevent a CBP from denying an IV holder admission if the IV didn’t have immigration intent. 
 

Try this as a thought experiment: if an IV holder told a CBP officer that he plans of staying on day in the USA and then leaving for USA for 180 times and repeating that pattern indefinitely, what outcome would you expect?

Yes, but there are statutes to charge LPRs with abandonment of status. There isn't a statute to charge an IV holder with abandoning LPR status, because they have no status to abandon. Only after CBP has admitted someone with an IV are they a LPR and at that point it's too late to charge them with abandonment because they've already been admitted. CBP would have to charge them with it on a future entry. There's nothing in INA S.212 about an IV holder being inadmissible for not having immigrant intent, there's no lawful basis to deny entry for that reason.

 

CBP cannot do things that are not consistent with the law on how they operate, and I'm in agreement with other posters that those CBP officers could well be in hot water for not processing this person correctly. I also believe that she would not have had to travel back to Canada and could have resolved this via deferred inspection, but ultimately either route should clear this matter up.

 

Regarding entering/exiting 180 times? That actually would be fine, the person would be physically present in the US every day over that 6 mo. period. DHS would have a very hard time in immigration court arguing that the person did not have a fixed intention to return to the US within a relatively short period with that kind of travel. After all people commuting to Canada from the US as LPRs is a perfectly fine thing to do. You ought to read into abandonment removal cases, the government has a very very high burden of proof to win those cases, as they must prove by clear, convincing and unequivocal evidence that the person did not intend to maintain their status.

Edited February 22, 2022 by Kai G. Llewellyn

[Mike E 11,741]

22 minutes ago, Kai G. Llewellyn said:

 .Yes, but there are statutes to charge LPRs with abandonment of status. There isn't a statute to charge an IV holder with abandoning LPR status, because they have no status to abandon. Only after CBP has admitted someone with an IV are they a LPR and at that point it's too late to charge them with abandonment because they've already been admitted. CBP would have to charge them with it on a future entry. There's nothing in INA S.212 about an IV holder being inadmissible for not having immigrant intent, there's no lawful basis to deny entry for that reason.

Makes one wonder then why we have immigration visas at all then if CBP is required to literally rubber stamp every IV that comes in even when the nominal immigrant has expressed no immigration intent.  
 

Quote

 

CBP cannot do things that are not consistent with the law on how they operate,

I agree that legally it cannot do things inconsistent with the law. Earlier in this thread I was all-in that the CBPO acted illegally and suggest an APA lawsuit.  
 

Now as more data as trickled in (you should see the posts OP has made to his profile to get a more complete story) I now believe the CBPO acted legally.  
 

Quote

 

and I'm in agreement with other posters that those CBP officers could well be in hot water for not processing this person correctly.

Won’t happen imho and imo. 

Quote

I also believe that she would not have had to travel back to Canada and could have resolved this via deferred inspection, but ultimately either route should clear this matter up.

Deferred inspection was suggested by several of us (including me) and it failed.  Again go to OP’s profile. 
 

Quote

 

Regarding entering/exiting 180 times? 

is mistyped and meant 180 days.  

 

So if an IV holder informs CBP explicitly “I’ve no immigration intent.    I will enter for a day.  I will then leave the USA for 180 days.  I will return for one day. I will repeat this pattern for as long as I want” do you believe the CBPO legally has to admit the immigration visa  holder on the immigration visa and convert the visa to an I-551?

Edited February 22, 2022 by Mike E

[Redro 4,611]

Updates from OPs profile for those interested. 

https://www.visajourney.com/profile/413239-1800x/

 

It should be noted OP and his wife do not own their homes in Canada and the US they are renting in both locations (and have plans to end their lease in the US). 

I'm thinking selling a house before moving is a very different process to ending a lease. I would assume breaking a lease would be easier... especially if you've received the IR1 visa in November. 

They're not tying up loose ends in Canada... 

In his updates, OP (IMO)  has made it clear they intend to split their time between the US and Canada and maintain residency in both countries. 

In my opinion, he has also indicated they won't be too put out if his wife is unable to activate her visa. They'll just continue living their lives as they have for the past decade or so... they're just looking to make the transition to the States easier if she ever decides to seek employment in the US. 

And I'm not sure why its not a reasonable suggestion to end their lease in Canada as both of their children are adults and should theoretically be able to move into their own  apartments.

I'm thinking if OP's wife had kept it simple and stated she was moving to the rental and not mentioned only visiting the US for a few weeks to look at properties she could have received the endorsement with no issue. 

 

 

 

 

 

 

 

Edited February 22, 2022 by Kor2USA

[Villanelle 4,122]

9 hours ago, Kai G. Llewellyn said:

There is not actually a requirement on the IV holder to have immigrant intent when using an IV (remember IV's are single entry). Immigrant intent only comes up as a negative factor in the context of nonimmigrant visas. If someone has an IV it generally doesn't matter whether the holder has immigrant intent or not at initial entry, so long as other requirements were met (i.e. petitioner moving back to the US). ONCE that person is admitted as a LPR only at that point does the intent on not making the US a permanent home come into play. For one to be found to have abandoned LPR status, they must first have that status.

I suppose the wording of 'immigrant intent' was a poor choice on my part since that phrase does have a specific definition in immigration which as you explained does not apply here. I guess a better phrase to use would be she was denied as they didn't believe she was entering on the correct visa type (which we all should agree is standard policy). 

 

People are routinely denied entry under tourist visas for immigrant intent. This was the opposite, denied entry because it appeared the purpose of the trip was a temporary one and the IR visa is not the proper visa for a temporary entry.

[Kai G. Llewellyn 838]

2 hours ago, Mike E said:

Makes one wonder then why we have immigration visas at all then if CBP is required to literally rubber stamp every IV that comes in even when the nominal immigrant has expressed no immigration intent.  
 

I agree that legally it cannot do things inconsistent with the law. Earlier in this thread I was all-in that the CBPO acted illegally and suggest an APA lawsuit.  
 

Now as more data as trickled in (you should see the posts OP has made to his profile to get a more complete story) I now believe the CBPO acted legally.  
 

Won’t happen imho and imo. 

Deferred inspection was suggested by several of us (including me) and it failed.  Again go to OP’s profile. 
 

is mistyped and meant 180 days.  

 

So if an IV holder informs CBP explicitly “I’ve no immigration intent.    I will enter for a day.  I will then leave the USA for 180 days.  I will return for one day. I will repeat this pattern for as long as I want” do you believe the CBPO legally has to admit the immigration visa  holder on the immigration visa and convert the visa to an I-551?

Well the reason we have immigration visas at all is because it's an approval that this person has a basis to immigrate, has been sufficiently vetted, deemed admissible, and inspected by the Consulate to be approved to be an immigrant.

 

I do not see any legal basis that CBP can deny the lawful admission of someone as a LPR on the basis of lacking immigrant intent. It is extremely common for people to enter the US to activate their visa and then immediately 180'.

 

You're probably right that the CBPO won't get in trouble, but they're mostly unaccountable anyways so no surprises there.

 

Didn't know that deferred inspection failed, but it looks like the CBPO there saw this was such an edge case and probably didn't want to get involved.

 

Yes, I believe that CBP would still have to admit them, because there's no legal basis not to. But I would expect the CBPO to advise the IV holder that it is unwise to have such a travel pattern and would risk being found to have abandoned their status.

 

24 minutes ago, Villanelle said:

I suppose the wording of 'immigrant intent' was a poor choice on my part since that phrase does have a specific definition in immigration which as you explained does not apply here. I guess a better phrase to use would be she was denied as they didn't believe she was entering on the correct visa type (which we all should agree is standard policy). 

 

People are routinely denied entry under tourist visas for immigrant intent. This was the opposite, denied entry because it appeared the purpose of the trip was a temporary one and the IR visa is not the proper visa for a temporary entry.

Appropriate visa for travel is the realm of NIV's which have many different categories for different purposes as status violations are possible and CBP is obligated to deny entry if they think the person will violate their nonimmigrant status. There's no such thing as a status violation for LPRs as they do not have restrictions on their activities.

 

And yes, people are denied tourist entry for immigrant intent, but there is statute for this, specifically under INA s.212(a)(7)(a)(i)(i). Statute does NOT exist to deny entry for an IV holder not having immigrant intent. So long as the IV holder is admissible and that their visa was correctly issued, then CBP should admit them.

 

The correct process would for CBP to determine after the status abandonment had actually happened to slap the person with removal proceedings. That is what the law says, and the process they should have followed. CBP cannot prejudge someone to have abandoned their status before it actually happened (because people's plans change, people would get incorrectly caught up in it, etc etc.)

Edited February 22, 2022 by Kai G. Llewellyn

[Kai G. Llewellyn 838]

1 hour ago, Kor2USA said:

Updates from OPs profile for those interested. 

https://www.visajourney.com/profile/413239-1800x/

 

It should be noted OP and his wife do not own their homes in Canada and the US they are renting in both locations (and have plans to end their lease in the US). 

I'm thinking selling a house before moving is a very different process to ending a lease. I would assume breaking a lease would be easier... especially if you've received the IR1 visa in November. 

They're not tying up loose ends in Canada... 

In his updates, OP (IMO)  has made it clear they intend to split their time between the US and Canada and maintain residency in both countries. 

In my opinion, he has also indicated they won't be too put out if his wife is unable to activate her visa. They'll just continue living their lives as they have for the past decade or so... they're just looking to make the transition to the States easier if she ever decides to seek employment in the US. 

And I'm not sure why its not a reasonable suggestion to end their lease in Canada as both of their children are adults and should theoretically be able to move into their own  apartments.

I'm thinking if OP's wife had kept it simple and stated she was moving to the rental and not mentioned only visiting the US for a few weeks to look at properties she could have received the endorsement with no issue.

 

There's nothing wrong with splitting your time between the US and Canada, the only requirement is that you must maintain primary domicile within the US (i.e. your ties need to be stronger in the US than Canada, and you need to file taxes as a resident alien and have your affairs in order that you are resident of a state). If a person does not, they can be deemed to have abandoned their status, but like I said, they have to have that status in the first place. And they have to be accorded due process by arguing their case in front of the IJ.

 

LPR's are allowed to have foreign residences.

Edited February 22, 2022 by Kai G. Llewellyn

[Ontarkie 14,304]

~~This thread has been derailed enough. Please stop with the back and fourth of working for a Canadian company in the US. It does not apply to the OP~~

[Mike E 11,741]

1 hour ago, Kai G. Llewellyn said:

Yes, I believe that CBP would still have to admit them, because there's no legal basis not to. But I would expect the CBPO to advise the IV holder that it is unwise to have such a travel pattern and would risk being found to have abandoned their status

The next thought experiment is the IV holder is rubber stamped, and now has a temporary I-551 in the holder’s passport.  The holder is now an LPR, and thumbs his nose at the CBP officer as he performs a U-turn and heads back to Canada.  
 

The CBPO runs toward the exit from America, blocks the LPR from leaving, and hands the LPR a notice to appear for abandoning LPR status, and tells the LPR he can leave or stay, but a green card isn’t coming in the mail any more.  
 

Is that  legal? 

[Kai G. Llewellyn 838]

10 minutes ago, Mike E said:

The next thought experiment is the IV holder is rubber stamped, and now has a temporary I-551 in the holder’s passport.  The holder is now an LPR, and thumbs his nose at the CBP officer as he performs a U-turn and heads back to Canada.  
 

The CBPO runs toward the exit from America, blocks the LPR from leaving, and hands the LPR a notice to appear for abandoning LPR status, and tells the LPR he can leave or stay, but a green card isn’t coming in the mail any more.  
 

Is that  legal? 

No. That's absolutely insane - once the alien has been lawfully admitted they're no longer an arriving alien and no longer subject to being charged with abandonment by a CBPO. I'm not adding more to this thread as it's been pretty derailed and the hypothetical situations are now getting ridiculous.

 

EDIT: Yes CBP do have exit control authority but the statues applying to arriving aliens do not apply to those departing. The exit control authority is just to document people's exits for the purpose of enforcing periods of authorized stay etc. The person *could* be charged with abandonment on their reentry.

Edited February 22, 2022 by Kai G. Llewellyn

[Mike E 11,741]

Just now, Kai G. Llewellyn said:

No. That's absolutely insane.

How so?

 

CBP has exit control authority from Congress.  The LPR has clearly abandoned LPR status.  Issuing a notice to appear is within CBP’s authority.  

[Redro 4,611]

7 hours ago, Kai G. Llewellyn said:

There's nothing wrong with splitting your time between the US and Canada, the only requirement is that you must maintain primary domicile within the US (i.e. your ties need to be stronger in the US than Canada, and you need to file taxes as a resident alien and have your affairs in order that you are resident of a state). If a person does not, they can be deemed to have abandoned their status, but like I said, they have to have that status in the first place. And they have to be accorded due process by arguing their case in front of the IJ. 

 

LPR's are allowed to have foreign residences.

I don't disagree with you. I just think something was said about where she was intending on living going forward (and maybe something was said at the consulate that tipped CBP off).

 

If she mentioned they were giving up their lease in the US and had no address for the GC to be sent perhaps CBP was telling her to sort that out. 

The main issue I read about when people are given 221Gs at the consulate (when USC and foreign national live in a foreign country) relates to the CO not believing the USC has a fixed address in the US. So, if they are canceling their US lease and retaining their lease in Canada doubt about primary domicile is raised. 

 

LPRs are allowed to have foreign residences but I'm thinking not having a US residence is the problem in her situation. 

 

If CBP is allowed to deny entry to an approved K1 case because they believe they aren't entering to get married I don't see why they aren't allowed to deny entry on an IR1/CR1 visa because they believe a person is not entering as an immigrant but rather a visitor. 

 

[Jesserose24 62]

I presented at this border to activate my CR1 Visa today. The entire process took less than 15 minutes. I presented with an empty car no belongings and no intention to move today. I wasn't asked but I did explain that I thought it made more sense to do it without the cats in the car in case there was a delay. 

 

My Visa was approved on February 16th, it was created and put into my passport on February 17th and it was available for me to pick up on February 21st, I picked it up on February 22nd. And today February 23rd presented at the border simply to activate it with no issues.

 

I'm sharing this here because it was the same Crossing where this individual had issues. I don't want others hesitant to use this Crossing because I was very impressed with how quickly it was all completed.

 

 

[James D 39]

On 2/16/2022 at 2:44 PM, 1800X said:

I guess my wife and I screwed up. Long story short we have been married for 11.5 years and I attempted to go to Canada first but time and life goes by.... We started the process for my wife in January 2020. things were finalized November 2021 she had her IR1 Visa in her passport with an expiration date of April 17. 

She arrived at the Thousand Island POE with her Visa and Passport in hand but things went awry.  Basically the agent ultimately told her she could enter as a visitor but her file was flagged and she needed to provide proof she had resigned from her job and terminated her lease before April 17 if she expects to enter on the IR1. 

 My question is , has anyone experienced what the process is if the IR1 Visa holder does not enter prior to expiration date?

My apologies if the above is in the wrong place/incoherent/ or otherwise offensive to anyone. My thoughts are still trying to process what happened why and what we do from here.

 

Thank You 

Steve

On 2/16/2022 at 2:44 PM, 1800X said:

 

 My question is , has anyone experienced what the process is if the IR1 Visa holder does not enter prior to expiration date?

.

 

Thank You 

Steve

1. This is most likely the reason she was denied entry. She had to have entered the US within 6 months of her medical exam. 

 

2. Why you mention her employment and lease in her home country?  It certainly would not help her getting a resident visa for the U.S. and would only be important if she was looking for a tourist visa.

 

Classic case of giving USCIS more information than needed.