How do we proceed after 5 year ban?

[traveler_me 2]

I'm a US citizen, my wife is a lebanese citizen. We were living in Lebanon (where we were married) and attempted to move back to the US December 2019. We had not filed for the spouse visa since we were only planning on staying in the U.S. for 6 months. My wife was denied entry and returned back to Lebanon. 

 

Reasons for denial: she planned on working remotely while in the U.S. She was a freelance editor/translator for a project based in lebanon funded by an American missionary. She did not lie to the officer about anything, and we didn't know at the time this was illegal for her to do. The citation however was not based on the illegality of working, it was based on the fact she didn't "qualify as a tourist" or something like that. She was given a 5 year ban. Many answers on her transcript of questions from the CBP officer were fabricated and had additional information added to make it seem like her intent was to stay indefinitely with me, and that she wanted to work for a US company and even to visit the US company she worked for (she didn't work for a US company, and never said she wanted to visit the company). Her signature was taken at the airport to prove "she gave her statement" and then was applied to the whole transcript affirming that she "has read all answers and confirm that the above information is true and correct". She didn't sign the papers; in fact she was only allowed access to the papers after she left the country.

 

I reached out to multiple lawyers, and met with one in person. One lawyer said the real reason was she intended to work in the US. 3 others said that the real reason wasn't the work, but the fear of her attempting to stay in the U.S. According to the lawyer I met with, the citation given stated she was found to be "indamissable" because she didn't have the right visa upon entry; she needed a different one. All lawyers said best practice is to wait 5 years until the ban is up before reapplying for entry. there are other things however that are confusing us.

 

Here's where my confusion lies:

 

1. The supervisory CBP officer assigned to her case told her in the airport that she can apply anytime for a Spouse visa to come back. Yet,

2. The judgement says she is prohibited to enter, attempt to enter, or being in the US for 5 years.

2. The lawyers said best practice is to wait 5 years to reapply,

3. The papers with her judgement on it indicate that she must reapply for permission to reapply before the 5 year period is over, and that this must be done "before commencing travel to the US". If it's supposed to be done within the 5 year period AND before commencing travel to the US, how can the 5 year ban be applied? It seems like we are banned for 5 years and also told to apply for permission to reapply and travel back to the US before the 5 year period.

 

So we have the lawyers saying to apply after 5 years, the paper saying apply for permission to reapply before 5 years, and the CBP officer saying she can apply right now for the spouse visa. We. Are. Confused.

 

Can anyone speak into this situation?

[Boiler 43,430]

She can certainly reapply for another tourist visa but I agree with the Lawyers who said it would be a waste of time so soon. Theoretically there is a waiver but with this one her record....

 

I will ask one of the mods to move this to the Tourist visa section.

[TBoneTX 43,058]

Thread is moved from CR-1 Case Progress subforum to the Tourist Visas forum.

[SusieQQQ 11,584]

I’m confused about what you actually want to do, as you say you wanted to “move back” to the US but then that you only wanted to stay for 6 months. 
I probably wouldn’t bother trying for a tourist visa, but if you do actually want to move back and get a spouse visa then apply for that. 

[carmel34 3,529]

7 hours ago, traveler_me said:

attempted to move back to the US December 2019

She was rightly denied entry and was given a five year ban for trying to move to the US with a tourist visa.  The correct visa for moving to the US with a USC spouse is a spousal visa.  You can petition for a spousal visa for her now, and at the interview abroad in a year or more, she will be denied because of the five year ban, but if she is eligible for a waiver they will tell her that at the interview.  Then you file the waiver and hope it gets approved.  That is her best shot at moving to the US.  Any tourist visa application within the five year ban will be denied.  Good luck!

Edited January 30, 2020 by carmel34

[Boiler 43,430]

OP clearly state they have no intention of moving to the US, that was an erroneous assumption by the CBP officers, mention of them fabricating evidence to support that conclusion.

[SusieQQQ 11,584]

1 hour ago, Boiler said:

OP clearly state they have no intention of moving to the US, that was an erroneous assumption by the CBP officers, mention of them fabricating evidence to support that conclusion.

But OP also said “We were living in Lebanon (where we were married) and attempted to move back to the US December 2019.”

[Just Paul 4,591]

10 hours ago, traveler_me said:

We were living in Lebanon (where we were married) and attempted to move back to the US December 2019. We had not filed for the spouse visa since we were only planning on staying in the U.S. for 6 months.

Poor word choices at the booth.  The minute she or you said "Move back to the US . . . " CBP would have deemed the entry as unauthorized residence.   " . . . For only 6 months" is really a visit.   Unfortunately that part was tuned out. CBP only takes a few seconds to determine entry.

 

You can file a spousal visa and if the consulate officer recommends a waiver you may have a chance prior to the 5 years.

[traveler_me 2]

Our intent originally was not to "move back". She may have said "we are moving to the US temporarily", however she presented her return flight back to lebanon as well as a paper from an non-profit organization (church) stating we do not intend to move back but to come back to get temporary training. We are aware that they were within the law to send her back more because of her work situation however. This is still unfortunate because other people in this Point of Entry who were there to work while on a tourist visa were allowed in to the US, yet she was detained for 4 hours and was just waiting; in that time many people who were lying and also clearly telling officers their intent to work in the US were allowed in. Then the process took another 24 hours before she went back.

 

Currently we intend to setup a life back in the US together, so we know the spouse visa process, which we will do but we don't know which time. According to lawyers however, the waiver mentioned above will only be granted for "extreme hardship" reasons for me as the US citizen. In other words I would have to prove somehow my health is in danger, I am at a financial crisis, etc. These must be genuine, and we wouldn't have any extreme hardships. This is why lawyers said to wait until the 5 years are over. Also, if the waiver is denied, then we would forfeit the whole spouse visa application process and have to start over. 

 

My questions are more about these below:

 

Why did the CBP officer say she can reapply anytime for a spouse visa if he is the one who gave the 5 year ban?

Why do the papers say we must "apply to reapply for a visa before travel to the US within the 5 year period" if there is a ban in the first place?

6 hours ago, Boiler said:

OP clearly state they have no intention of moving to the US, that was an erroneous assumption by the CBP officers, mention of them fabricating evidence to support that conclusion.

Lawyer said mentioning fabrication of evidence in a spousal visa application doesn't matter; future CBP officers who review our case won't care.

[African Zealot 1,452]

7 hours ago, carmel34 said:

She was rightly denied entry 😳😳😳 and was given a five year ban for trying to move to the US with a tourist visa.  The correct visa for moving to the US with a USC spouse is a spousal visa.  You can petition for a spousal visa for her now, and at the interview abroad in a year or more, she will be denied because of the five year ban, but if she is eligible for a waiver they will tell her that at the interview.  Then you file the waiver and hope it gets approved.  That is her best shot at moving to the US.  Any tourist visa application within the five year ban will be denied.  Good luck!

Perhaps you didn’t understand the OP’s post and jumped to conclusion? Did you miss:

Quote

 We had not filed for the spouse visa since we were only planning on staying in the U.S. for 6 months

 

[African Zealot 1,452]

24 minutes ago, traveler_me said:

My questions are more about these below:

 

Why did the CBP officer say she can reapply anytime for a spouse visa if he is the one who gave the 5 year ban?

Why do the papers say we must "apply to reapply for a visa before travel to the US within the 5 year period" if there is a ban in the first place?

CBP officers are known to lie and minimize the gravity of the case so as to get the applicant compliant to sign and less likely to dispute or cause a ruckus. Remember in the future it’s the paperwork that will be the reference, that officer will not be there. 

 

In any case it appears the only way you can be sure is apply for the spouse visa (and risk losing the fee) at which point you would be recommended for a waiver, or not.

[SalishSea 16,770]

1 hour ago, traveler_me said:

Our intent originally was not to "move back". She may have said "we are moving to the US temporarily", however she presented her return flight back to lebanon as well as a paper from an non-profit organization (church) stating we do not intend to move back but to come back to get temporary training. We are aware that they were within the law to send her back more because of her work situation however. This is still unfortunate because other people in this Point of Entry who were there to work while on a tourist visa were allowed in to the US, yet she was detained for 4 hours and was just waiting; in that time many people who were lying and also clearly telling officers their intent to work in the US were allowed in. Then the process took another 24 hours before she went back.

 

Currently we intend to setup a life back in the US together, so we know the spouse visa process, which we will do but we don't know which time. According to lawyers however, the waiver mentioned above will only be granted for "extreme hardship" reasons for me as the US citizen. In other words I would have to prove somehow my health is in danger, I am at a financial crisis, etc. These must be genuine, and we wouldn't have any extreme hardships. This is why lawyers said to wait until the 5 years are over. Also, if the waiver is denied, then we would forfeit the whole spouse visa application process and have to start over. 

 

My questions are more about these below:

 

Why did the CBP officer say she can reapply anytime for a spouse visa if he is the one who gave the 5 year ban?

Why do the papers say we must "apply to reapply for a visa before travel to the US within the 5 year period" if there is a ban in the first place?

Lawyer said mentioning fabrication of evidence in a spousal visa application doesn't matter; future CBP officers who review our case won't care.

What do you mean “others arriving at POE with plans to work on a tourist visa were allowed in?”  Work is not allowed on tourist visas.  That makes no sense.

[SalishSea 16,770]

8 hours ago, Boiler said:

OP clearly state they have no intention of moving to the US, that was an erroneous assumption by the CBP officers, mention of them fabricating evidence to support that conclusion.

Later in the thread, OP states that all of a sudden they DO have plans to move back. This incident only happened a month ago, so that is a pretty rapid timeline for such a life change.  As such, I can see why CBP thought she was attempting to circumvent the queue for a non-immigrant visa, and enter with intent to AOS.

[Boiler 43,430]

I think it is going to be difficult substantiating they fabricated evidence if you then go and do exactly what they accused you of wanting to do 

[SusieQQQ 11,584]

6 hours ago, traveler_me said:

because other people in this Point of Entry who were there to work while on a tourist visa were allowed in to the US,

I seriously doubt that is true unless by “work” it falls in with what is allowed under B1.