Our client contacted my office after being expeditiously removed from the U.S. during his and his family’s attempted entry into the U.S. on valid B-1/B-2 visitor visas. During inspection at the arriving port of entry, the CBP officer searched through their luggage and found children’s schoolbooks and school-related material as well as their medical records.
Our client informed the CBP officer that his wife and children planned to stay temporarily in the home of a relative while the Ebola epidemic was then a serious public health concern in Nigeria. He informed the CBP officer that his wife and children would return back to Nigeria within 5 months. Our client himself planned to return back to Nigeria within a few days to attend to businesses which he owns and operates in his home country.
The CBP officer determined that our client’s family did not overcome their presumption of immigrant intent and expeditiously removed them from the U.S. My client subsequently contacted me because he needed to return to the U.S. to meet with business partners and customers and attend trade conventions that are vital to the operation and success of his enterprise.
Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:
- 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
- 10 years for those otherwise ordered removed after a deportation hearing or who departed the United States while an order of removal was outstanding; and
- 20 years for a second or subsequent removal.
The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).
The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply. The following may be considered positive factors in granting permission for early re-entry:
- Basis for the deportation
- Recency of deportation
- Foreign national’s length of residence in the U.S., and status held during that presence
- Family responsibilities and ties to the U.S.
- Foreign national’s evidence of good moral character
- Foreign national’s respect for law and order
- Evidence of reformation and rehabilitation
- Hardship involving the applicant and others
- Need for the applicant’s services in the U.S.
- Whether the applicant has an approved immigrant or non-immigrant visa petition
- Eligibility for a waiver of other inadmissibility grounds
- Absence of significant undesirable or negative factors
Negative factors may include:
- Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
- Repeated violations of immigration laws, willful disregard of other laws
- Likelihood of becoming a public charge
- Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
- Absence of close family ties or hardships
- Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
- Unauthorized employment in the United States
- Lack of skill for which labor certification could be issued
- Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
- Existence of other grounds of inadmissibility into the U.S.
In support of our client’s I-212 waiver application, we prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to adjudicate an I-212 waiver application for a B-1/B-2 non-immigrant visa applicant. The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin.
Just as importantly, we presented substantial evidence of our client’s significant and permanent ties to his home country in order to overcome the presumption of immigrant intent. We discussed and provided proof of our client’s previous travels to the United States, Canada, the United Kingdom, and other countries of the European Schenhen Area. We presented details of his previous travels to the United States on business, attending trade conventions and conferences at which he and the management team of his companies have obtained training in cutting-edge technologies, strategies, and methodologies in their industry sector; negotiated contracts; and initiated business contacts with prospective clients.
We further presented corporate documentation showing the formation, capital structure, and revenues of our client’s companies that are based in his home country of Nigeria; our client’s own personal savings, investments, property ownership, and financial snapshot of his net worth; as well the reasons why it is critically important for him to enter the U.S. now to facilitate expansion of new start-up businesses in Nigeria that he has full or majority ownership of.
Just some of the supporting exhibits that we submitted to prove important assertions made in the legal brief and overcome immigrant intent included:
- Passports and Visas for the Entire Family
- Certificates of Incorporation
- Expenses for Business Trips Previously Made to US
- Family Travel Itinerary for Past 5 Years
- Comprehensive Presentation of our Client’s Business Interests
- Proof of Property Ownership
- Property Surveys
- Current Cash Assets of Companies Fully-owned by our Client
- Personal Savings Account Statement
- Contracts with Business Clients
- Extended Contracts Demonstrating Product Marketing and Strategic Planning
- Purchase Orders for Equipment by Companies Owned by our Client
- Government Authorization to Employ Foreign Employees in Nigeria
- Contracts with Business Partners
- Criminal Record Background Checks
- Attestations from Attorney
I-212 waivers for non-immigrants residing outside the U.S. and applying for non-immigrant visas are generally submitted at the U.S. embassy or consulate with jurisdiction over the applicant’s place of residence.
Thus, this waiver was submitted to the U.S. consulate in Lagos.
The I-212 waiver we thoroughly prepared for our client was subsequently approved. Our client is now able to freely travel to the United States to further expand his businesses and meet with customers, partners, and colleagues in his respective industrial field.