How do we proceed after 5 year ban?

[geowrian 22,335]

7 hours 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.

Moving temporarily is still moving. Visitors do not move to the US.

A return flight means nothing about intent to return home. Virtually every person that has overstayed, violated status, etc. who arrived by plane had a return flight.

If they let anybody else in who intended to work as a visitor, then she knew something they did not.

 

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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.

She can apply for a spousal visa at any time. The visa would be refused due to the ban. The ban can be waived or can expire.

A standalone I-212 can be filed at any time. If an I-601 is needed at any point, then that can only be applied for after otherwise being eligible for the visa (after the interview).

The I-212 is the waiver that allows you to reapply for a visa. This waives the ban, if approved.

Nothing stated about her detainment and return implies an issue for a spousal visa, other than the 5 year ban. Illegally working is not a bar for a spousal visa. Intent to stay is not an issue for an immigrant visa.

 

Edited January 31, 2020 by geowrian

[SusieQQQ 11,584]

7 hours ago, Ray.Bonaquist said:

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

 

To be fair, OP’s posts have been somewhat contradictory. He himself said “move back” then said that’s not what they meant then said it again. Then said “moving temporarily” but did not seem to recognize that is still at odds with a B visa. He first admitted she planned to work illegally with the excuse that they didn’t realize remote work wasn’t allowed, then used the argument actually she was going for training, etc. The point of maximum scepticism was the accusation that CBP allowed a bunch of other people in to work on tourist visas. Yeah, right.
I think what actually happened, was an implicit assumption that as long as she had a visa and because OP is a USC that she could pretty much do what she wants once she landed without regards to actual visa conditions, and they received a rude wake-up call on that front.

 

OP, fwiw, just about any good lawyer seems able to get an extreme hardship waiver through. Many people on VJ have been successful in that.

Edited January 31, 2020 by SusieQQQ

[traveler_me 2]

16 hours ago, geowrian said:

She can apply for a spousal visa at any time. The visa would be refused due to the ban. The ban can be waived or can expire.

A standalone I-212 can be filed at any time. If an I-601 is needed at any point, then that can only be applied for after otherwise being eligible for the visa (after the interview).

The I-212 is the waiver that allows you to reapply for a visa. This waives the ban, if approved.

Nothing stated about her detainment and return implies an issue for a spousal visa, other than the 5 year ban. Illegally working is not a bar for a spousal visa. Intent to stay is not an issue for an immigrant visa.

geowrian, thank you for directly answering my questions; until this point no one on this thread has addressed the questions. 

 

Are you absolutely positive Form I-212 waives the 5 year ban? I spoke with 2 lawyers on the phone, 1 through a long and thorough email thread, and 1 in person consultation (maybe he wasn't a good lawyer? only 50$ for 1 hour). Not one lawyer mentioned that Form I-212 waives the ban. How are you sure that this is the case?

 

With regard to other posts, my wife overheard the entire interrogation of a man who came to work on a tourist visa for a concert. They let him in to work on a tourist visa. She saw them searching through all his sound equipment. Perhaps this work is allowed for B1/B2 visas?

 

 

16 hours ago, SusieQQQ said:

He first admitted she planned to work illegally with the excuse that they didn’t realize remote work wasn’t allowed, then used the argument actually she was going for training, etc. The point of maximum scepticism was the accusation that CBP allowed a bunch of other people in to work on tourist visas. Yeah, right.

You can go back and read my earlier post; I never said "she planned to work illegally". We both did not know it was illegal at the time, she got in the airport and said she was planning to work remotely while on her stay, and that her and her husband were planning on getting counseling and training through our church. I also didn't say "a bunch of people" were let in. Refer to above paragraph stating that a man was let in on a tourist visa and she overheard the whole thing. Also, can you back up your claim that "any good lawyer can get a waiver through"? We had contact with a distinguished lawyer in LA with a proven record and multiple awards who stated that it is not possible to guarantee the waiver will get through.

[Boiler 43,438]

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 in that time many people who were lying and also clearly telling officers their intent to work in the US were allowed in

What you said

[SusieQQQ 11,584]

41 minutes ago, traveler_me said:

We had contact with a distinguished lawyer in LA with a proven record and multiple awards who stated that it is not possible to guarantee the waiver will get through.

Of course no lawyer worth his or her salt is going to guarantee you anything. But there is a whole forum dedicated to waivers here on VJ, so you can go see for yourself what people do. I’m sure most of them have not retained distinguished lawyers with multiple awards, yet many still have success 🤷‍♀️ I don’t see why you seem so reluctant to try, or so ready to argue with someone trying to point out that it’s not as bleak as you are making out.
 

And yes, if certain conditions are met, musicians can use B1 visas to perform.  We had someone not too long ago, I believe it was a pianist (?j from Russia who was successful in getting a B visa to perform in the US, if I recall correctly at some competition. Sometimes they do undergo questions if CBP thinks they actually need a P visa, which many do, and which presumably is what the CBP guy was trying to determine. 

good luck.
 

Edited February 1, 2020 by SusieQQQ

[Boiler 43,438]

It is quite possible that the Lawyer or Lawyers have more and better information than has been posted on here, different information different answers.

[SusieQQQ 11,584]

1 minute ago, Boiler said:

It is quite possible that the Lawyer or Lawyers have more and better information than has been posted on here, different information different answers.

Good point.

[geowrian 22,335]

1 hour ago, traveler_me said:

Are you absolutely positive Form I-212 waives the 5 year ban? I spoke with 2 lawyers on the phone, 1 through a long and thorough email thread, and 1 in person consultation (maybe he wasn't a good lawyer? only 50$ for 1 hour). Not one lawyer mentioned that Form I-212 waives the ban. How are you sure that this is the case?

I am positive what the I-212 does. I am not positive about her circumstances to say what exactly is needed.

It sounds like an expedited removal. That would be the most likely culprit given her circumstances and being told there is a 5 year bar. The I-212 would allow her to reapply for admission after a removal.

 

Whether or not there is anything on top of that is an unknown (e.g. misrepresentation). The main concern I would have is about the claim that they fabricated the transcript. I'm not saying it did or didn't happen...I don't get into that. That's the only reason I say "claim".

But I will say any future application for an immigration benefit will treat the information on it as fact unless demonstrated otherwise (and I doubt there is any evidence to the contrary other than her own testimony).

If she made material claims contrary to what is on the transcript, misrep seems probable. There is no way to know if that applies or not until she interviews and is otherwise determined eligible for the visa. At that point an I-601 would be needed.

 

1 hour ago, traveler_me said:

With regard to other posts, my wife overheard the entire interrogation of a man who came to work on a tourist visa for a concert. They let him in to work on a tourist visa. She saw them searching through all his sound equipment. Perhaps this work is allowed for B1/B2 visas?

Impossible to know exactly what they were planning to do, and therefore no way to know if it is permitted on the status they were applying for. But as others noted, a B-1 does cover certain activities that may apply here.

Given that the officer admitted him, the logical assumption is that it was permitted. Officers don't routinely knowingly admit somebody who they believe will violate immigration laws.

[traveler_me 2]

1 hour ago, geowrian said:

I am not positive about her circumstances to say what exactly is needed.

What do you mean by this statement? I can clarify circumstances if needed, so you can say exactly what is needed.

 

1 hour ago, geowrian said:

The main concern I would have is about the claim that they fabricated the transcript. I'm not saying it did or didn't happen...I don't get into that. That's the only reason I say "claim".

But I will say any future application for an immigration benefit will treat the information on it as fact unless demonstrated otherwise (and I doubt there is any evidence to the contrary other than her own testimony).

I can give multiple examples from the transcript. For example a question was, "What kind of work do you do for **name of U.S. company**?" The answer was: "I'm a contractor. I do **x** and **y** for **name of U.S. company**." She explicitly stated in the interview that she did not work for this company. The above quote is verbatim from the transcript, except the starred details to keep info private. There are other ones that are worse; for example an answer stating she was planning to visit the US company; she explicitly stated she did not plan on visiting the company. Other questions regarding the US company have "yes" as her answer when "no" was her answer. All of these establish an exaggerated intent to work for the US company. To reiterate, she worked for a project in Lebanon, and that US company routed the funds raised by the missionary (who is in lebanon) to her.

 

Another answer established intent to stay in the US indefinitely: "What is your specific intent in the United States on this entry?" Transcript answer: "I'll stay here with my husband and get marriage cousin with him." Verbatim from the transcript, and this is not what she said; the time frame was left out of her answer. Also, note the incompetent english from the officer.

 

Would the above examples classify as "misrepresentation"? What is the significance of misrepresentation?

 

As far as evidence is concerned, we can get an official signed document from the US company that my wife was not an employee, or a contractor. Also upon entry we had an official signed document from our church stating our intent was for marriage counseling and training from the church. Do you think that the church's paper and a paper from the US company would be important to have when interviewing?

 

1 hour ago, geowrian said:

If she made material claims contrary to what is on the transcript, misrep seems probable. There is no way to know if that applies or not until she interviews and is otherwise determined eligible for the visa. At that point an I-601 would be needed.

What are "material" claims? With regard to when she is interviewed, is this interview you are referring to the spouse visa interview, or is there an interview involved with form I-212?

 

2 hours ago, SusieQQQ said:

I don’t see why you seem so reluctant to try, or so ready to argue with someone trying to point out that it’s not as bleak as you are making out.

Main reason for reluctance is because if the waiver is denied, we have to start the whole process over and we lose all the money we spent. We could not afford to lose that much money for our current situation, and it's possible an attempted application that failed could hurt further chances down the road.

 

[geowrian 22,335]

9 hours ago, traveler_me said:

What do you mean by this statement? I can clarify circumstances if needed, so you can say exactly what is needed.

What I mean is I was not there so I do not know exactly what happened. I have information from her that is being relayed by you. Sometimes details get lost along the way, or no attention is paid to something that is actually an important factor.

To be clear, I'm not suggesting any sort of ill intent - I'm just saying I wasn't there to observe exactly what happened.

 

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I can give multiple examples from the transcript. For example a question was, "What kind of work do you do for **name of U.S. company**?" The answer was: "I'm a contractor. I do **x** and **y** for **name of U.S. company**." She explicitly stated in the interview that she did not work for this company. The above quote is verbatim from the transcript, except the starred details to keep info private. There are other ones that are worse; for example an answer stating she was planning to visit the US company; she explicitly stated she did not plan on visiting the company. Other questions regarding the US company have "yes" as her answer when "no" was her answer. All of these establish an exaggerated intent to work for the US company. To reiterate, she worked for a project in Lebanon, and that US company routed the funds raised by the missionary (who is in lebanon) to her.

 

Another answer established intent to stay in the US indefinitely: "What is your specific intent in the United States on this entry?" Transcript answer: "I'll stay here with my husband and get marriage cousin with him." Verbatim from the transcript, and this is not what she said; the time frame was left out of her answer. Also, note the incompetent english from the officer.

 

Would the above examples classify as "misrepresentation"? What is the significance of misrepresentation?

If she said at one point she did not intend to work for the employer but then admitted to doing so, then that would be misrepresentation. Again, this is working under the premise that the transcript will be viewed as a statement of fact.

However, see below regarding it being "material".

 

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As far as evidence is concerned, we can get an official signed document from the US company that my wife was not an employee, or a contractor. Also upon entry we had an official signed document from our church stating our intent was for marriage counseling and training from the church. Do you think that the church's paper and a paper from the US company would be important to have when interviewing?

Honestly, not particularly. The main reason is both unauthorized work and intent to immigrate are not ineligabilities for a spousal visa.

 

The secondary reason is if it is to contest any sort of misrepresentation, then I don't think it really does that.

If she doesn't work for the company (directly or indirectly), it's kind of odd that she could get a letter from them saying as such.

It sounds like she engages in self-employment (you said "freelance" before). If she was intending to engage in that for the benefit of the US company, then their claim of unauthorized work is probably correct. There may be some argument over how much the US company is involved, but at the end of the day, CBP made their decision. What the company says about it doesn't matter.

As for the church paper, I don't see how that helps. It arguably could hurt. Marriage counseling and training does not mean you don't intend to marry on that trip and then stay. They would really be steps often taken prior to getting married and then staying.

 

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What are "material" claims? With regard to when she is interviewed, is this interview you are referring to the spouse visa interview, or is there an interview involved with form I-212?

A material misrepresentation to an immigration official is a very serious offense. It's actually a permanent bar on any visa, although it is waivable via an I-601 for an immigrant visa.

 

"Material" here refers to the misrepresentation being used to obtain an immigration benefit, or to curtail additional questions to determine eligibility for the benefit being sought.

For instance, if they asked me what color is the sky and I said "Purple", then that's a misrepresentation but it's not material. The color of the sky does not impact my eligibility for a visa.

If they asked somebody "Have you ever engaged in prostitution?" and they said "No" but they actually did, then that would likely be deemed material because engagement in prostitution is an inadmissibility.

 

It's more complex than the above, and note I said "likely" in the material example. The CO would evaluate the facts and determine if the misrepresentation was material or not (along with a couple other factors).

Here's a good read on the topic. Note this is from the USCIS policy manual, not the FAM. COs follow the FAM. It's just that this is a nicer read than the FAM and they are fundamentally the same in content here:

https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

 

I'm personally doubtful of a misrep bar in this case, but again I don't know all the details and I am not the one to make the decision. The CO does. They have pretty strict guidance, but I wouldn't try to predict what somebody else will determine, especially if they are working under a different set of restrictions and with a different basis of facts.

 

Good luck.

Edited February 1, 2020 by geowrian

[Boiler 43,438]

Most people who are refused are allowed to withdraw their application for entry, not deported. You seem to need to go the extra mile to get deported, seems like it involves a lot of extra paper work. So as an observation they tend to take the easy route, usually.

 

Most cases we see on here have not consulted extensively with Lawyers versed in the subject, so I am inclined to believe their conclusion as they will have asked and been answered the pertinent facts of the situation.

[geowrian 22,335]

12 minutes ago, Boiler said:

Most cases we see on here have not consulted extensively with Lawyers versed in the subject, so I am inclined to believe their conclusion as they will have asked and been answered the pertinent facts of the situation.

Generally agreed.

Although I'm not sure why they didn't say a I-212 would address the 5 year ban. I can't think of anything other than an expedited deportation that would have resulted in that (plus the statements about needing to request permission to reapply for a visa). Everything there seems pretty typical. Maybe they know of some facts we don't here. Maybe they just don't want to take the case? idk...we don't know what information they had that differs from what we have, or how that differs from the entire event that happened.

Whether they would qualify for the waiver or if there is anything else on top of it is the biggest questions to me.

Edited February 1, 2020 by geowrian

[traveler_me 2]

20 hours ago, geowrian said:

f she said at one point she did not intend to work for the employer but then admitted to doing so, then that would be misrepresentation. Again, this is working under the premise that the transcript will be viewed as a statement of fact.

I was thinking that "misrepresentation" was on the part of the officer, not my wife. My wife never once admitted for working for the US company, yet the transcript says she did. She only said she was planning on working remotely for a project in Lebanon. Then they asked, "who pays you?" Then she said that the US company does since it's an outsourced service for handling project funds raised by the missionary in Lebanon. Her work was not for the benefit of the US company. Her boss is classified as an Independent Contractor for that company, and she is a "foreign vendor". I think because of the uniqueness of this setup, the officer capitalized on the opportunity and intentionally twisted of the transcript in order to keep her out for another reason. Lawyers said the reason was fear of her obtaining citizenship thru adjustment of status.

 

20 hours ago, geowrian said:

Marriage counseling and training does not mean you don't intend to marry on that trip and then stay. They would really be steps often taken prior to getting married and then staying.

We were already married upon arrival and they knew that

 

20 hours ago, geowrian said:

Honestly, not particularly. The main reason is both unauthorized work and intent to immigrate are not ineligabilities for a spousal visa.

 

If this is true, do you think that the transcript answers with the 5 year bar will affect a future decisions? Transcript does not have appearance of misrepresentation, but as if she basically told the officer, "I worked in the US the last time I was here (true) I want to work for a US company now (fabricated) and I want to potentially stay indefinitely in the US (fabricated)." There was no changing minds and opinions on her answers. I'm just somewhat worried that what happened would affect our chances later when we apply for the spouse visa. I also don't know if they will ask, "Why did you get your 5 year ban?" If we presented those papers we think it will help. Would an interview for spouse visa involve going over the 5 year ban, and/or would the ban affect their decision?

[SusieQQQ 11,584]

Wait, are you saying she previously worked on a tourist visa in the US? 
 

1 hour ago, traveler_me said:

she basically told the officer, "I worked in the US the last time I was here (true) 

 

[Boiler 43,438]

2 minutes ago, SusieQQQ said:

Wait, are you saying she previously worked on a tourist visa in the US? 
 

That is how I read it.