IR1/CR1 application after VWP refusal

[theomicron 3]

Hello,

 

I hope someone here can shed some light for me. In march of 2021 I arrived the US with my wife (married 5 years) and 2 children (ages 1 and 3 at the time). Wife is a US citizen and 1 child is US citizen and the other 1 is UK citizen. We had decided to move our family to the US and the time we had wrongly assumed we would be able to apply from the US for my greencard as not to separate our family. 

 

I arrived on an ESTA visa. I explained to the officer at the border exactly what my intentions were, which is to move, and i was taken aside and interviewed along with my wife. They allowed my wife and both the kids to go through however I ended up with a VWPP refusal and sent back to the UK with a 212(a)(7)(A)(i)(I) stamped on the passport. I was told i need to reapply for the CORRECT visa (IR1) from my HOME country(UK). I was flown back to the UK on the next available flight with the sworn statement.

They were nice to me and realised i hadnt done my homework on the topic. I have since applied for my spouse visa here in the UK and have an interview at the london embassy next month (july). 

I have asked around and it seems as though, since i was honest and it was only a plain refusal of the ESTA visa it shouldnt harm my spouse application. However its true that i had immigrant intent and presented at the border with an ESTA visa however unwitting it was i did not know any better at the time and was honest from the outset. 

 

My question is this, will this particular incident affect my spouse application ? Will i need a waiver ? 

I have also read about people going through the whole process only to be told by a CO at the end of the journey they need a waiver and this has made me nervous so i felt like opening up to everyone to see what they thought.

Thank you 

[Dashinka 23,401]

This thread may be helpful.  It looks like you may need a 212 waiver in order to get your spousal visa.

 

Good Luck!

 

 

https://www.uscis.gov/i-212

[Boiler 43,792]

Does not sound like there should be an issue.

[theomicron 3]

Hi boiler, just out of curiosity what lead you to this conclusion ? I read conflicting messages, some that are talking about a 5 year ban on entering,  i dont recall being told about any ban in my situation and also some that say it shouldn't affect my spouse application as the ban will be on the ESTA not on any immigrant visas moving forward however they may just ask me about it at the interview. 

Thanks for you input

[Boiler 43,792]

You said you were not deported you were allowed to withdraw your application for entry 

[Kai G. Llewellyn 829]

It sounds like it was an withdrawal rather than an expedited removal, especially because you were very honest regarding your intentions. You can FOI CBP to get information regarding the encounter. If it's a withdrawal, you won't have any issues for your visa, but you do need to be honest about what happened and that you had been refused admission before.

 

If it was an expedited removal (I think unlikely in this case) then others are right, you'd need a 212 wavier.

Edited June 23, 2022 by Kai G. Llewellyn

[Chancy 6,233]

36 minutes ago, theomicron said:

i dont recall being told about any ban in my situation

 

The circumstances around the denial of entry matter.  It seems you were allowed to withdraw your application for admission, instead of being deported (ie. expedited removal).  If you did withdraw your application, you don't have a ban, so no waiver required to get a spouse visa.  If you were actually deported, you would have been told clearly that you have a ban.

 

8 hours ago, theomicron said:

the other 1 is UK citizen.

 

Just curious if your wife has already sorted out your child's US citizenship documents (US passport and/or N-600)?

 

[Dashinka 23,401]

I want to change my answer after a bit more research.  It appears you were not put into expedited removal which would have carried a 5 year bar and required a 212 waiver (probably would have been the case if you had tried to evade the CBP questions), but were able to withdrawal you application for US entry.  I agree with the others, you should have no issues at your spousal visa interview although I expect the CO will ask about it.  Let us know how it goes.

 

Good Luck!

 

If only a Section 212(a)(7)(A)(i)(I) decision was made, this usually means that the individual was allowed to withdraw his application for entry. The CBP inspector permits this when the individual made an innocent mistake, did not intend to purposely violate US laws, or answered the questions of the inspector honestly. The inspector revokes the visa by physically cancelling it under Section 22 CFR 41.122(e)(3). The overwhelming majority of these cases relate to holders of B visitor visas or visitors entering under the VWP who, in the view of the CBP inspector, plan to study, work, get married, indefinitely stay, or otherwise remain in the US. But in making this decision, the inspector is informing the US consul in the person’s home country: if we had not stopped this person, there was going to be a violation of law. This black mark will accompany the applicant the next time he/she applies for a visa.

 

https://visarefusal.com/inadmissibility/212a7aii-inadequate-documentation/

[theomicron 3]

On the paper handed to me there were several options including VWPP withdrawn VWPP cancelled and VWPP refused. The refused option was ticked. So i dont know if this was expedited removal. I didnt see anything mentioning expedited removal or ban 

Wife has applied for citizenship for youngest in the US. still waiting to hear from them.

[pushbrk 12,254]

6 hours ago, theomicron said:

On the paper handed to me there were several options including VWPP withdrawn VWPP cancelled and VWPP refused. The refused option was ticked. So i dont know if this was expedited removal. I didnt see anything mentioning expedited removal or ban 

Wife has applied for citizenship for youngest in the US. still waiting to hear from them.

It's not.  Expect no problems.  You went back and applied for the correct visa.  Expect success.

[theomicron 3]

Hi thanks everyone. Will let the group know the outcome of interview. I am more at ease after your posts. I was probably thinking too much into it.

[theomicron 3]

Hi everyone i was approved earlier today. passport will be with me within 1 to 2 weeks. Thanks for all your advice. You were right didnt even ask me about the airport incident. Just how i met my wife and why we want to move to US (seeing as ny wife was living in UK last 4 years).

Took 15 mins at most.

 

Thanks again god bless.

[Dashinka 23,401]

Congratulations!