Mr. C worked as a teacher at an elementary school in Texas for several years in H-1B status. When he applied to renew his H-1B visa in Mexico City, the consular officer denied him, expressing his belief that Texas should be hiring American teachers. The school district then planned to terminate his contract because of his inability to return to the United States. Our firm brought this to the attention to the Department of State, and the consular officer issued the visa H-1B to Mr. C.
This section of the immigration law is rather simple. And on its face, standing alone, seems innocuous. Invoked by the airport or land border Customs and Border Protection (CBP) inspector, a visa holder denied entry to the US under this provision is usually being advised: “You do not have the proper visa, so I am revoking your current visa. Go back to your home country and receive a different type of visa.” Or for visa-free entrants under the Visa Waiver Program (VWP), the CBP inspector is in essence advising: “You are not a valid candidate as a visitor under the Visa Waiver Program. You need to apply for an appropriate visa.” But often unspoken are the real-world consequences of such a decision.
Firstly, if the CBP inspector subjects a visa holder to expedited removal, this decision carries a 5-year bar to entering the United States. If the CBP inspector decides that the visa holder or Visa Waiver Program entrant committed fraud or a material misrepresentation, that finding is a permanent bar. The respective articles on this website and professional legal assistance should be referred to promptly after such a decision.
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.
If the individual had previously received a visa, then the consul will revisit the information indicated in the previous visa application. Did the applicant indicate in that application that he or she was planning to visit grandma for two weeks, stayed for five months, and then tried to return again after a week outside the US? This may call into question the applicant’s original intent when he or she applied for a visa. If the consul finds that there was a willful, material misrepresentation — regardless of whether the CBP inspector did or not — then a permanent bar could be handed down.
If not, the applicant will need to prove his/her qualifications for the visa. By staying for a long period of time in the US, the consul may decide that any tourist or student visa application should be denied under 214(b) so that the applicant can “re-establish” ties to the home country. Before applying for a work visa, a job offer must be secured or arranged or a business must be opened and usually, a petition must be filed with USCIS and approved. H-1B visas for professionals are limited in number and not easy to come by. H-2B visa applicants are also subjected to a “ties” analysis by the consul. E, L, O, and P visas are similarly hard and time-consuming to obtain. If the applicant has a US citizen “significant other” in the US, then a fiancée or marriage visa can be obtained after a process that can take a year or more.
Needless to say, even when the CBP inspector does not make an expedited removal or misrepresentation decision, a 212(a)(7)(A) finding alone has serious consequences. Contact us to discuss your situation.