Hey everyone. I have a question. We are waiting on our ininterview in montreal for our K1 fiance visa. Before we applied for our visa I had a situation at border crossing in Toronto. This is what happened: i was working in U.S on a TN visa, i quit the job and went working for another company( american airlines) with the same visa. American airlines said my tn was not expired so it was ok for me to work for them, my fiance also checked with a friend of his who is a custom agent and again they said as long as my tn was not expired i could work for another company. I worked for 3 weeks and my fiance and i came to canada for a holiday. When we returned to the U.S, the immigration officer looked at my visa and asked was I still working for the same company. I told him NO, i now work for A airlines. He told me i was not allowed to do this. He sent me into questioning. I expalined to them that my Boyfriend and i checked into this and also that american airlines told me it was OK. He told me i was misinformed and he also called american airlines on the spot and told them that it was illigeal for them to hire me on another companies visa.
He then explained to me that I would not be able to enter U.s that day. I came back home to newfoundland and we were devastated. We were planning on getting engaged when we went back and the purpose of our trip was to meet my family before we got engaged. a month later, chris returned to candaa and we got engaged and started our K1 process.

The immigration slip states that i was allowed to withdrawl application per sec 212a7AiI....................I need to know will this affect me at my interview and also I am planning on visiting chris in 2 weeks. I havent tried to visit since this happened in NOV. I have waitied 8 months. Will I have a problem crossing again now. i have bill slips, letter from my employer, as well as scheduled appointment i need to return for to remove stitches as I just had surgery.

i am sorry all this was so long but could someone answer it for me especially about sec 212a.
thanks so much
mary lou

Mary Lou,
My name is Joanna and I'm pressed for time, but I was in the same boat as you. I will email you later, but I have much to tell you about this road that you are embarking on. Get ready for a long wiat ahead. Not trying to scare you but I've been dealing with US immigration for three years and there's still njo end in sight for us.

Hi Mary Lou

I have not been in same situation as you, but I know that while I was waiting for my I-601 waiver to be approved I couldn't cross the border. It affected my interview for a K-1 visa and was denied until the waiver was approved which lasted me 8 month. When is your interview?

Anette

we are waiting on interview and it probably will not be until Nov with the damn back up in montreal. i was reading about waivers and was just curious if i would need one or not. I was never charged with anything, just misinformed about switching positions. Ironically, my finace chris is a police officer and his friend was the custom officer who told me it would not be a problem to change companies..................it is so confusing.

Hi again

Ok At least you have time to prepare something for the interview.
I am very sorry for your situation and hope so much that Kitkat will come by and can maybe answer your question.
I am not sure if you really need a waiver or not.
But if you do, then it is a very good thing to be prepared before the interview.

I was denied at the interview and should start from there to submit this waiver and the reason it took me such a long time.
As I can see there is some misunderstandness between companies and I hope you can prove this. As also you are really misinformed.

Anette

why did you need waiver. KIT KAT? who is that.

I needed a waiver because I had a conviction for 2 decades ago. Nothing serius but enough for the immigration rules.
Kitkat is a person in this forum there is vey good with experiense in immigration laws. There are other persons too. But she helped me alot

we are waiting on interview and it probably will not be until Nov with the damn back up in montreal. i was reading about waivers and was just curious if i would need one or not. I was never charged with anything, just misinformed about switching positions. Ironically, my finace chris is a police officer and his friend was the custom officer who told me it would not be a problem to change companies..................it is so confusing.
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Mary Lou, let be start from the begining, it will shed some light on our cases. I was working in the US on a TN as a nurse. My contract ended and I got a new job at a different hospital on what I thought was a VAILD work TN visa. In July I went to the Border and I got denied entry because that was not allowed. At that point I was engaged to be married in Septembert. I was given a 3 year ban for working in the states and being there illegaly. I tried arguing my case with them, stating that it was a vaild work visa and no-one told me different. This was the start of a long process. We got our I-129 and I-130 off and finally got an interview 1 year later. At that point we had to file a waiver to overrule the ban for my overstay. When I went to the interview out Lawyer prepared some documents argueing a point that I was not illegaly present in the US because my TN was still valid. I went to renew one month before it expired. That was not successful and we had to file the full I-601 waiver. And currently we're trying to get something done, as three years have passed and nothing yet. I would advised you to go to that interview prepared with a waiver packet. And youe I212 paperwork filed out. The worst thing to do is show up in Montreal un prepared by not having the paperwork with you. If you don't need it than that's great but if you do, not having it will dealy your case. Contact a lawyer who knows about us immigration and can help you prepare the waiver packet. If you need help email me and I'll try to help you out. This site has a lot of useful info too. Good luck.

Mary Lou can you contact the POE where you were denied to find out if you did receive a ban or anything. I would strongly suggest on getting informed before you go to your interview.

no i am not ban, they explained to me to prove strong ties to canada and i could enter the U.S, but that was before i applied for k1 visa. so did they ban you? you said your situation was similar to my TN visa.............what is your situation/ did your TN expire?
thanks

sorry i never saw you last post...................

so when exactly did you get married? and where? we already have an immigration lawyer and he said i would not have a problem with it because my TN was still valid for feb6 2007. I changed jobs in nov. I only worked for the other company for 3 weeks when i came home on vacation. I explained at bordrr entry that i no longer worked for the company who hired me. The immigration officer wrote a file saying i was misinformed and that i am allowed to wirthdrawl my application.....................nothing about a ban.......etc.

this entire process is driving me crazy, chris comes back and forth and now that is becoming problem due to no holidays left. That is why i am planning to go there in 2 weeks, i guess i will know then if i will have problem or not. So I can actaully call toronto and see if I can cross over? thanks for info

Sutton

A few things you need to understand.

1) You cannot rely on a customs agent to advise you on immigration law (even though it sure seems they would know). Many agents make mistakes and allow people into the country when they should not be allowed in or deny entry to people when they don't believe their proof of non-immigrant intent, etc.

2) Does your lawyer have specific experience working with people who came into the country with a TN visa and switched companies? This is a crucial detail. You do not want to be a guinea pig.

3) Whether or not the officer at the POE told you that you had a ban or did not tell you if you had a ban does not matter. When you get to the consular interview, if they determine that you have a ban, you have one.

4) A simple search on the regulations of TN Visas states:

Q. Can I change employers with a TN?

A. Yes, but your new employer must get the TN approved by the USCIS before you begin your employment. Canadian citizens may also submit a new TN application package showing the new employer at the border, as described above.

Q. Can I start work with a new employer once the TN petition is filed with the USCIS?

A. No, "portability" does not apply to people in TN visa status. An actual approval notice or new Form I-94 (for Canadians) must be issued by the USCIS.

This makes it rather clear that your three weeks of employment with an employer who did not sponsor your TN was not legal and the border agent at the POE gave you accurate and correct legal information.

5) INA §212(a)(7)(A)(i) says:

any immigrant who, at the time of application for admission:

who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Immigration and Nationality Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the INS regulations whose visa has been issued without compliance with the provisions of the Immigration and Nationality Act, is excludable.

Separately from whether or not being allowed to withdraw your application results in a bar, your situation seems to indicate that by working for someone other than the sponsoring employer you will have two violations; failure to maintain status and employment without authorization. The employment without authorization may not be a big issue, but the failure to maintain will be and most likely will require a waiver. Waivers in Canada typically take a long time - around 10-12 months.

I suggest you consult with a qualified, experienced immigration attorney -- someone who knows the rules of TN visas and has experience in waivers. Highly recommended are Laurel Scott and Heather Poole. Laurel Scott's site (www.visacentral.net) has a very detailed memo on 601 waivers and she holds a free chat weekly on Wednesdays at 11:00.

i would
at the POE i still had my TN visa. i told them truth and that is when they took it. while i was sitting with officer he called American airlines there and then and informed them that they were not allowed to hire me. He stated that i would be allowed to travel to u.s again as long as i prove strong ties to canada. I quit my job in july and was home in Nov so if they do consider it an overstay it was only 4 months.
Do you know if i can contacft POE in Toronto and ask them if i have been banned. I thought all that would have been bought up while the case was being processed, but everything to date was approved. My immigration lawyer said that there should not be a problem due to us being honest about entire situation.
so what you are saying is that i can apply for a waiver even before interview if i need one? thanks for your reply.
mary lou

1) Once again, you cannot rely on a POE agent to advise you on immigration law. Since they process thousands of people daily, I highly doubt they will be able to find your specific information. But a qualified immigration lawyer should be able to explain it to you. In any event, as I stated, what happened at the POE does not appear to be the most important issue. The issue is the apparent violation of the regulations of the TN visa. As it was explained to you, American Airlines was not allowed to hire you without going through the proper process. When you worked for them, you were in violation of the regulations of your visa.

2) Nothing is brought up during processing of the visa petition. The only requirements of a I-129F visa petition are that the petitioner proves s/he is a USC and therefore qualified to file the petition, and that the petitioner proves the two people have met in person in the previously two years. Even visa petitions filed for illegal immigrant beneificiaries are approved. An approved petition is only approval for you to have the privilege of a consular interview.
The problem is not with petition processing -- it will be at the consular interview. Your lawyer is wrong. Being honest about the situation does not mean you won't have a problem - it only means you won't be charged with misrepresentation.

3) TN visas do not allow even ONE day of overstay beyond what is on your I-94 -- did you leave before your I-94 expired?

See TN Visa regulations: http://travel.state.gov/visa/temp/types/types_1274.html#3

For nonimmigrants in the U.S. who have an Arrival-Departure Record, Form I-94 with the CBP admitting officer endorsement of Duration of Status or D/S, but who are no longer performing the same function in the U.S. that they were originally admitted to perform (e.g. you are no longer working for the same employer or you are no longer attending the same school), a DHS or an immigration judge makes a finding of status violation, resulting in the termination of the period of authorized stay.

What I am trying to make clear to you is that even if you had no overstay, and even if the situation at the POE does not require a waiver, it seems you have a TN visa violation -- failure to maintain status.

4) If you require a waiver, it cannot be filed in advance -- you must wait until the denial at the interview because they first need to determine that you are eligible for a waiver. Your fiance would have to submit the hardship letter proving, with evidence and documentation, extreme hardship to him if the visa is ultimately denied and he had to relocate to Canada. Then you wait out waiver adjudication.

5) Again, I strongly recommend you find yourself a qualified, experienced attorney who can address both the POE issue and the TN violation issue, as well as explain to you what will happen at the interview and the chances of needing a waiver. You have a complicated case - you need competent counsel.

never knew about the ban till we started the process. The POE gave me no information except a piece of paper when I was at the border. I was told to fill it out and send it in and than I was going to be allowed in. What an eye opening experience cause it was not what they said at all. It was my lawyer who informed me about the ban once we started the paperwork.

KitKat, what you write is very accurate. However in my case it was our lawyer contacted the POE to find out what actually happened. It was determined that I was out of status because I switched jobs but not visa. During the course of our application we came to find out that I actually received a ban. I received very little information after I was denied entry. The POE handed me a piece of paper, told me to fill it out, pay the fee and I would be allowed in. Not true. It wasn't until the lawyer got involved that we started finding things out. True the POE is not an accurate source of info but after my lawyer talked with some supervisor at the POE where I was denied entry, only than did we get info. I know that each case is different.

My understanding is that being present in the US out of status-by not changing one's work visa when changing jobs does result in a ban. However that information was given to me by my lawyer ( AND I stress my lawyer who is suppose to be an immigration lawyer, but they suck) and you can't always trust what they say. But I got banned and had to file a waiver. so my case is similar to Sutton but different and she might have not received a ban like I did for being out of status.

Before we applied for my K-1 visa I visited my fiance alot. The 4th time they did send me back at the POE because of my intensions even my plan was to return to my homecountry. They said I needed a K-1 visa first.
What I will say is that they didn't hand me anything. It was just words from the immigration officer.
But still they told me that now I was in their system and a possibility that I wouldn't be able to enter if I tried again.
My lawyer called the POE and were told that I was not banned but denied entry until my K-1 visa was approved.
We added this in my I-129 form and I didn't dare to risk to visit under this process.

New Orleans Bound, basd on what you've added here, it sounds like contacting the POE and attempting to get some additional information may be worth it. I agree that being present in the US out of status by not changing the work visa to the new employer does result in a ban. That's why I stated that what happened at the POE may not be the biggest issue because being out of status will likely result in a ban. So either way, a waiver appears to be necessary and depending on the consular findings, it will need to address each and every visa ineligibility. That may include the POE situation, TN visa violation and overstay, depending on the details.

My fiance was denied entry to the US from mexico when he was attempting to enter with his tourist visa. Basically they suspected that he was working during his visits and not just visiting. He openly admitted in secondary questioning that they were correct and he did perform work while visiting. They cancelled his tourist visa and denied him entry. They allowed him to withdraw his application for admission. They also told him that he had (1) no ban on his record because of this denial (2) he was free to apply again for a visa in one year.......Luckily I didn't take the legal advice of the border agent 100% and we spent the few months leading up to our initial interview preparing a waiver and hardship letter just in case. At his interview we were informed that he did have a ban and he would need the waiver. That the border agent made notations in my fiances file that he had "misrepresented" himself by working on his tourist visa.....So to make a long story short, we needed the waiver and are now ending our process of waiting, but at least we were prepared with a HSL and everything when told we were in need of one and eligible to file it. I suggest you do the same, because you never know what they actually put on your record in these incidents. But, also know that by preparing early and giving yourself plenty of time to gather documentation and evidence, you are making your approval chances much higher. The key to a successful waiver is good preparation, organization, documentation and honesty.......

thanks again for info, i actaully ermailed my lawyer exact thing you stated to me. I have been on him since day 1 about my concerns with this matter and he reassured me that it would be fine but now i wonder. Another question i have was if i do need to file for waiver etc, this could take another yr, is that right? just curious, if me and chris married here in canada if we got denied............what process then will we have to go through?

thanks mary lou

ok I did exactly that. Chris, my fiance contacted immigration officer in the u.S. he checked my file and on his screen it stated what had happened that day when i was refused access. it never stated anything about a ban and told chris and i that there is no reason to be alarmed.
hopefully this is good news.
mary lou

Again, relying on information from the IO at the POE is not the best way to go about this. Luvinmb's story makes that clear -- "They also told him that he had (1) no ban on his record because of this denial (2) he was free to apply again for a visa in one year....." and they DID require a waiver meaning the POE information provided was NOT correct.

Did you overstay the date on your I-94 as well? This would be a second reason for needing a waiver in addition to the TN status violation.

If you are denied at the interview and need a waiver, and the waiver is also denied, you can certainly start all over again by getting married and going through the spousal visa petition process. You will still face the same ineligibility issues at the spousal visa consular interview and you will still require a waiver. It would probably make a lot more sense to appeal than to start over -- but you are getting way ahead of yourself.

Start by a consult with a qualified attorney. I cannot emphasize that enough.

i quit my job in july 2006 on my TN visa. I worked for AAirlines for 2 weeks (nov1-14, 2006). SO when i quit my TN visa job i was unemployed in U.S for 4 months except for my 3 weeks with AA. my TN never expired until feb 2007. i was home in canda long before then. AA also had a copy of my TN visa and knew it was from another company and they hired me anyway.

we already have a lawyer and he is researching this more for us.

The fact that you worked for someone else without USCIS approval is a TN visa violation. The fact that AA hired you anyway doesn't provide any defense for you - it's the TN holder's responsibility to meet the regulations of the visa.

In regard to overstay, it doesn't matter when your TN expired. It matters when your I-94 expired. If you overstayed your I-94, you had an overstay.

Since your lawyer "assured you that you will be fine" and it's 100% clear that you will not be fine, it might not hurt for you to consult a different lawyer - one who has experience with TN visa violations, overstays, denials at the POE and waivers in Canada. Doesn't sound like your lawyer is too clued in on these issues.

i am going to talk to that lawyer scott in the interview on wed. I am not even exactly sure what I 94 is. AND now to top it all off, i got offered job in vancouver and may add more fuel to fire and ask for for file to be transferrd. Oh and another thing, if i visit chris in 2 weeks, if i had a ban then i guess i would quickly find out once i tried to cross.......right?

Laurel's chat is filled with questions and many are not answered. It would be a lot smart, IMO, to schedule a phone or email consult -- your case is much too complicated to not have a real consultation.

The I-94 is the form that was provided to you at the Port of Entry when you first came in on your TN visa. It provided you with the exact duration of stay = the time you were legally allowed to be in the US. This date is the most important date -- NOT your TN Visa expiration date.

Have you read any of the TN regulations? That might help to clarify for you the issues you are facing.

OK...................i entered U.s feb 6 2006 and was allowed to stay for 1yr. i left 2 times in 9 months. the last time i left i stayed out.................i still had valid TN

one more time: THE EXPIRATION DATE ON YOUR TN VISA DOES NOT EQUAL YOUR AUTHORIZED DURATION OF STAY.

You need to know the date on the I-94 in order to know if you overstayed.

do you know where i can obtain that info from?

KitKat, as far as I know, all one year TN visa's issued to Canadian workers are valid for one year from the date that they are issued. Therefore, Suttons TN was valid until Feb 6 2007. So she had an unexpired TN but for the wrong company when she worked for AA for those two months I believe.

Could be - I don't know all the rules for TNs - I just read the regulations on the travel.state.gov site. I have no idea if overstay is going to be an issue or not, but it sure seems working for another company is a clear violation.

Well my situation sure proves that it is a violation. I'm still waiting.....