Mr. M applied to a US consulate after his company’s L-1 petition was approved. But rather than process his visa application, the consular officer "sat on" it. The consular officer sought to punish Mr. M because he believed that Mr. M and his family had spent too much time in the US on B visas. Because of the consular inaction, the validity period for the L-1 petition expired and his company had to submit a new petition to USCIS. After the petition was re-approved, Mr. M re-applied for an L-1 visa. This time, the consular officer denied the application. Mr. M then retained our firm, and we brought this to the attention of the Consul General and Washington. After a new interview, Mr. M was issued his L-1 visa.
While this site is primarily about the visa decisions made by consular officers, it is important to remember that receiving a visa only allows an individual the right to apply for entry at a US airport or border crossing. It is the Customs and Border Patrol (CBP) officer who makes the final decision on entry. This final decision can sometimes have tragic consequences when the officer makes a determination to enter an expedited removal order (Sections 235(b)(1)/ 212(a)(9)(A) of the Immigration and Nationality Act).
What is Expedited Removal?
Expedited removal is a "
What triggers CBP scrutiny at the time of entry?
CBP scrutiny is triggered by what it perceives as suspicious behavior by the applicant for entry. For example, an individual who spends prolonged time in the US on a B visa or makes frequent entries with little time spent outside the US ("visa carousel") can be subjected to additional interrogation the next time they seek to enter the US. After being invited to a separate room for secondary inspection, the CBP officer will ask many questions, such as "Are you working in the US? Are you looking for a job? How are you supporting yourself in the US? How do you spend your free time in the US? Are you going to school? Where do you work in your home country?" These interrogations can be humiliating — they usually include the opening of suitcases; checking of cell phones and computers; and contacting friends in the US to confirm the applicant’s story.
What are the possible outcomes?
The CBP officer has several options, including: 1) allow the applicant to enter the US; 2) allow the applicant to withdraw his/her application for entry (Form
What can be done to challenge an expedited removal order?
While formal appeals or motions to reconsider are not provided for in the law, the applicant or his attorney can file a formal complaint or request with the local Field Director of CBP that the order be withdrawn. For example, if the applicant honestly believed that he was able to volunteer for an organization and receive some minimal compensation on his B visa, he should have had the ability to withdraw his application and not be subject to the bar. If an erroneous finding of material misrepresentation was made, it should be challenged. The applicant can also submit a request for redress to the Department of Homeland Security through its Travel Redress Inquiry Program (TRIP). Most importantly, this should be done as soon as possible after the entry of the order.
Facilitating these challenges are the "protocols" or
This Record is supposed to be given to the applicant after it is signed. Although the Record should, it does not always indicate the legal basis for the decision; for example, the individual may only find out that he has been permanently barred by the CBP officer after his next visa application at a US consulate abroad. In such cases, Freedom of Information Act requests should be made to obtain a copy of the entire file from the government.
What other remedies are there?
If the expedited removal order was entered as a result of a finding the applicant did not have the proper visa, he can apply for permission to enter the US before the five years is up on the Form
What should be done?
As one can see the consequences for the entry of an expedited removal order are serious. If you believe that the order was wrong and the result of an honest misunderstanding, and/or if you believe you were mistreated by the CBP officer, then you should take action. If you would like to challenge the actions of the officer, obtain a copy of your file, or need assistance in obtaining a new visa after the entry of the order, please feel free to contact us to discuss your situation.