Paulgani

I have written an essay on the entry risks for fiances/spouses of U.S.
Citizens.
I am not an attorney, nor do I have any legal training whatsoever. I believe
the
below contents are accurate. If you know of any inaccuracies, I welcome
your corrections. Do not construe anything I've written as advice. I
could be incorrect in my statements or conclusions, so please verify my
writings with other sources. This is only a second draft, so please excuse
the roughness. I welcome all suggestions.

I claim no copyright on any of it - use it for any purpose you wish.

Paulgani

Entry Risks for fiances and spouses of U.S. Citizens


***** Am I taking a risk by entering the U.S. as a tourist?

Always. The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 implemented the concept/procedure of "Expedited Removal". Should
you be found inadmissible at the Port of Entry (POE), you can be removed
from the U.S. without a hearing, and subjected to a minimum 5 year ban.

***** Why would I be found inadmissible?

One common reason is INA 214(b). It says (edited):

Every alien...shall be presumed to be an immigrant until he establishes to
the satisfaction of the consular officer, at the time of application for a
visa, and the immigration officers, at the time of application for
admission, that he is entitled to a nonimmigrant status...

***** What does the law say about Expedited Removal?

INA 235(b)(1), more commonly known as "Expedited Removal", says (edited):

In general.-If an immigration officer determines that an alien... is
inadmissible under section 212(a)(6)(C) or 212(a)(7), the officer shall
order the alien removed from the United States without further hearing or
review...

212(a)(6)(C) is Misrepresentation (lying about facts, intentions)
212(a)(7) is Documentation requirements (or lack thereof, such as when
someone the INS considers to be an intending immigrant per 214(b), does
not possess a required immigrant visa, but is instead attempting to enter
on a tourist visa, or as a tourist)

***** Can you explain 214(b)?

Basically, you are considered to be an (intending) immigrant to the United
States, unless YOU are able to prove that your intent is to just make a
temporary visit to the U.S.

***** When is this decision made?

It is made by the Consular Official at the time you apply for a visa (if
required). It is also made by the INS Inspector at the POE when you
arrive in the U.S.

***** What criteria do they use?

There is no fixed criteria. In addition, different standards are applied
to different individuals, depending on many factors including age, marital
status, employment status, residence status, country of citizenship, and
most importantly, whether or not you have "strong ties" to your country of
residence.

***** If I'm successful in getting a visa, will I still have to pass
212(b) when I arrive at the POE?

Absolutely. Your visa is NOT a guarantee of entry. It merely gives you
permission to *apply* for entry at the POE.

That said, INS Inspectors don't usually question aliens with a new,
previously unused visa, since presumably the CO's have already asked the
right questions. They will be more likely to question you when you use
your (multiple entry) visa again for subsequent visits to the U.S.

***** What if I'm a Canadian and can enter without a visa? Or, if I'm
from a Visa Waiver country, and can enter without a visa?

You will still be subjected to a 214(b) determination when you arrive at
the POE.

If you are attempting to enter under questionable circumstances (for
example, you are not employed, and intend to make an extended visit to the
U.S.), it may be preferable to apply for a tourist visa at the nearest
U.S. Consulate, even if you don't techically need one.

Note, even with a tourist visa, you can still be denied entry at the POE!
Some POE inspectors will use the fact that you applied for one when you
didn't need one, to further scrutinize your situation.

***** What evidence should I present to demonstrate my intent to just make
a temporary visit to the U.S.?

Some possible evidence may include:

- proof of property ownership and residence in your home country
- proof of employment in your home country
- proof of family members in your home country
- a round-trip airline ticket with a fixed, reasonable return date
- proof of your intended actions while visiting the U.S.
- any other evidence demonstrating that you have "strong ties" to your
home country.

***** Wow, do I *have* to bring all of those documents? I know lots of
people who have come to the U.S. without any of those!

Depending on your personal situation, it may or may not be necessary to
bring along such documentation.

For example, if you've never visited the U.S., and arrive in Orlando with
a round-trip airline ticket for return 1 week later, plus a hotel
reservation and tickets for Disney World, it is highly unlikely a POE
official will request any additional evidence.

On the other hand, if you make regular, extended trips to the U.S. to
visit your U.S. fiance, with just short returns to your home country, a
POE official may demand extensive documentation before he/she permits you
to (re)enter the U.S.

***** What kind of evidence might hurt my case?

Some possible evidence may include:

- carrying excess luggage, including personal items and documents not
typical for a temporary visit. Yes, the INS Inspectors can and do have
the right to search your belongings.
- carrying U.S. based IDs and credit cards which might indicate you have
taken up residence in the U.S.
- not carrying enough money to pay for a trip of your intended duration
- evidence of family members, or a girlfriend/boyfriend or fiance in the
U.S., or other strong ties to the U.S.

***** What other things might a POE official consider in order to make
his/her 214(b) decision?

First, the Inspector is likely to look at what you've written on your I-94
or I-94W, which you filled out on the airplane. It asks such questions as
your intended address in the U.S., and the country of your residence.

Second, the Inspector can call and interview your family/friends back in
your home country, or in the U.S., to ask about your intentions.

There is virtually no limit as to the inquiries an Inspector can make in
order to make his/her decision.

***** If I present lots of evidence of my strong ties to my home country,
can I depend on being allowed in?

Absolutely not! It is the POE Inspector (and his immediate boss) who have
the final say. They can deny you entry based merely on their intuition.

That said, only a tiny percentage of visitors to the U.S. are denied
entry. See the statistics below.

***** If I don't have a lot of strong ties to my home country, should I
assume that I will not be let in?

Most of the time, POE Inspectors only ask precursery questions (i.e.
purpose of your visit?), or don't ask any questions at all. Generally, if
you haven't aroused their suspicions in any way, you'll probably be let
in.

***** What happens if I'm not allowed in?

You will either be offered the opportunity to withdraw your application
for admission, or you will be subjected to "Expedited Removal" from the
United States. You may in some cases be granted a deferred inspection,
where you are allowed in, but must come back to present your case further.
In addition, if you inadmissible for other reasons besides
misrepresentation or lack of documents, then you may be entitled to a
hearing before an immigration judge.

***** Can I choose (voluntary) withdrawal (VW) or ER?

No, it is entirely up to the POE Inspector.

***** What's the difference?

With VW, you have incurred no ban or penalty, other than not being allowed
into the U.S. *at that time*. You are welcome to attempt to reenter the
U.S. at a later date, presumably when you have the correct documents, or
your situation changes.

With ER, you have at least a 5 year ban from entering the U.S. However,
you can appeal the ban.

***** OK, so how does the POE Inspector decide whether to offer me VW, or
subject me to ER?

From the INS Inspector's Field Manual:

The Service retains the discretion to permit withdrawal of application for
admission in lieu of issuing an expedited removal order. Provisions for
withdrawal are now contained in both statute and regulation, with specific
guidance in the IFM and should be followed by all officers with authority
to permit withdrawals. As an example, in cases where a lack of proper
documents is the result of inadvertent error, misinformation, or where no
fraud was intended (e.g. an expired nonimmigrant visa), Service officers
may consider, on a case-by-case basis and at the discretion of the
Service, any appropriate waivers, withdrawal of application for admission,
or deferred inspection to resolve the ground of inadmissibility rather
than issuing an expedited removal order.

***** OK, so what happens in real life?

The alt.visa.us.marriage-based has documented many cases of denied entry.
Generally, when no misrepresentation is made, VW is offered. It has also
been offered in cases where a misrepresentation was made, but the alien
recanted.

However, there have also been cases where no misrepresentation is made,
but because the POE Inspector feels that the alien may shortly attempt to
make another entry (i.e. such as along the U.S./Canadian border), the
alien was subject to ER.

Once, an alien was charged with fraud (entailing a lifetime ban from the
U.S.), but was allowed to VW. Other times, the alien committed fraud, but
was not charged with fraud, and instead just subjected to ER (with a 5
year ban vs. a lifetime ban for fraud).

***** Can I appeal the Inspector's Decision?

The answer is no.

However, from the IFM:

All expedited removal orders require supervisory approval before service
upon the alien. By regulation, this approval authority is not to be
delegated below the level of a second line supervisor. Each district may
determine at what level (second line supervisor or above) this review
authority should be delegated.

This does not state that you will have the right to address your case to
the supervisor - rather, the supervisor must concur with his Inspector.
On the other hand, it probably wouldn't hurt to request direct contact
with the supervisor.

***** How can I increase my chances of being granted VW vs. ER?

Being nice to the Inspector wouldn't hurt. Being apologetic might help.

You must be able to pay for your return trip home, since if you are not
able to physically voluntarily withdraw yourself from the U.S., the INS
will have no choice but to subject you to ER.

From the IFM:

The BIA, in Matter of Gutierrez (19 I&N Dec 562, BIA 1988) has ruled that
a balancing of an alien's personal equities is not appropriate for
determining whether to allow the alien to withdraw, but that factors
directly relating to the issue of inadmissibility can be considered in
determining what option would be in the best interest of justice. Such
factors might include, but are not limited to:

(1) The seriousness of the offense;

(2) Previous findings of inadmissibility against the alien;

(3) Intent on the part of the alien to violate the law: and

(4) ability to easily overcome the ground of inadmissibility (i.e., lack
of documents

Before allowing an alien to withdraw, you must be sure that the alien has
both the intent and the means to depart immediately from the United
States.

***** Any advice about my conduct at the POE?

- Never lie to an INS Inspector.
- Never admit to previously lying to a CO or INS official.
- Remember, the Inspector might/can lie to you, or threaten you with
actions or relief or penalties which are not true. For example, they
might say to you "admit to lying, and I'll let you in". DON'T!!!
- Don't volunteer more information than asked.
- Don't answer with too little information. If asked "purpose of trip",
just saying "pleasure" may invite further inquiries. On the other
hand, a (truthful) response of "I'm visiting my friend, and we're going
to Disneyland" may be more likely to satisfy the Inspector.
- Don't argue with the Inspector.
- When you state your intentions, don't change your story later.
- Always be adamant that your intention always was and is to make a
temporary visit on this trip. If caught with evidence of intent to
immigrate, insist that it is a future intention, and that you fully
intend to obtain the proper immigrant visa when you are ready.

***** What if I'm not engaged to my U.S. boyfriend/girlfriend yet? I
can't apply for a fiance visa. Can I enter as a tourist?

It's done all of the time. Most people are successful at it. However,
you are still subject to a 214(b) determination. If the POE Inspector
believes that you are intending to live in the U.S. with your BF/GF, they
can deny you entry, and subject you to Expedited Removal.

***** OK, I'm a fiance of a U.S. Citizen. If I apply for and obtain a
fiance visa, am I guaranteed entry?

No, you are not. No visa absolutely *guarantees* entry. There have been
reports where K-1 entrants were denied entry, because the Consulate forgot
to administratively extend their I-129F petition validity. Yes, you can
can be denied entry, even if it isn't your fault!

Note, however, by entering on a fiance visa, you are not subject to a
212(c) determination. You are permitted to have immigrant intent. Thus,
you eliminate your risk of being denied entry because of 214(b).

Also realize that if denied entry on a K-1, even due to an administrative
error that's not your fault, you can still be subjected to Expedited
Removal! Although it's unlikely the POE Inspector will subject you to ER,
if you are not able to pay for your flight back home, they won't have a
choice!

***** Well, if I can still be denied entry on a K-1 fiance visa, why
should I even bother applying for one?

It all has to do with levels of risk. By attempting to enter the U.S. as
a tourist, you have a *higher* risk of being denied entry, as opposed to
attempting to enter with a K-1 fiance visa.

Remember, a K-1 visa does not eliminate your risk of being denied entry.
It only (greatly) reduces it.

***** OK, my US fiance has filed an I-129F petition so I can apply for a
K-1 fiance visa. Can I make a visit to the U.S.?

Yes, you can, and it's done all of the time. However, the existence of a
filed I-129F means that it will be *more* difficult for you to overcome a
212(d) determination. Thus, you are taking a bigger risk than normal of
being denied entry. Note, the POE Inspectors will be able to see on their
computer screens that an I-129F has been filed for you!

***** I'm already married to my USC spouse. I know that I need to obtain
a spousal (IR-1, CR-1) immigrant visa. Can I visit the U.S. during this
process?

Yes, you can, and it's done all of the time. However, the existence of a
filed I-130 means that it will be *more* difficult for you to overcome a
212(e) determination. Thus, you are taking a bigger risk than normal of
being denied entry. Note, the POE Inspectors will be able to see on their
computer screens that an I-130 has been filed for you!

***** What do the statistics say?

First, excerpts from the FY2000 INS Statistical Yearbook:

Inspectors determined that about 559,000 arriving aliens in fiscal year
2000 were inadmissible. Of these about 221,000 were inadmissible for
reasons that made them subject to expedited removal. However, 125,000 of
those aliens were allowed to withdraw their application for admission. The
remaining 96,000 were placed in expedited removal.

Aliens from Mexico accounted for over 90 percent of expedited removals in
fiscal year 2000.

Visa waiver entrants: 17,697,919

A record 33.7 million nonimmigrants were admitted to the United States
during 2000.

Of the 33.7 million nonimmigrants who arrived in fiscal year 2000, a large
majority (90.6 percent) entered as visitors for pleasure (tourists) or
visitors for business.

Nearly half of all nonimmigrants arriving in 2000 were citizens of one of
four countries: Japan (15.6 percent), the United Kingdom (14.8), Mexico
(12.3), and Germany (6.3).

My analysis:

Let's say, for the purposes of this discussion, that Mexico be excluded
from the numbers.

Thus, we have 29.6 million non-immigrants who entered the U.S. in FY2000

Of the 559,000 aliens found inadmissible, a minimum of 86,400 were ER'ed
to Mexico. Thus no more than 472,600 non Mexicans were found
inadmissible, or roughly 1.6% of all visitors. The actual number should
be far less, as many of those allowed to withdraw are also likely from
Mexico.

Now, 9,600 non-Mexicans were subjected to ER. That's 0.03% of all
visitors! That's 1 in 3083!

Folinskyinla

Hi:

You just KNEW that I was going to comment, didn't you? Well here goes.

Overall an excellent piece! It would be A-/B+ on a law school exam.

A lot of typos -- there were several instances where you used different sections when you meant "214(b)."

I think that the power at the POE to exclude under 212(a)(7) is the real killer. At first glance, it appears to be a "no visa" charge and therefore would not apply to someone who possesses a visa duly issued by the Department of State. The kicker is that the section states "no VALID visa." So if you don't qualify, the visa is not "valid." And that's where 214(b) kicks in.

I don't like this provision of the law, but its what we've got.

On the pedantic side -- 214(b) DOES apply to K-1 admissions. You made an error which everybody makes -- including immigration lawyers, INS attorneys and consular officer -- so don't take it as a critcism. 214(b) is not really a "non-immigrant intent" provision. Section 101(a)(15) defines "immigrant" as ALL aliens except those described in the subsections of 101(a)(15). So an alien living outside the United States with no intention of coming to the United States is an "immigrant" and a lawful one at that! There are several "non-immigrants" classfications which clearly contemplate immigrating -- the K being the most prominent. There are several "non-immigrant" classfications, such as the "E" which do not require an itent to return to a foreign residence. So for analytical purposes, I teach my students to use the terms "apples" and "oranges" in place of immigrant or non-immigrant.

Another point -- the statiscal analysis you make contains a hole: most non-immigrant admissions are for visits and they leave. Also, on the Mexican border, there are many instances of people make attempted entries on false claim or forged documents at the land border.

Final point -- at the border inspection process, there are two ways to prevent summary exclusion -- one is a colorable claim to already being a lawful permanent resident. Two is a claim to well found fear of persecution -- this can get you a "credible fear" determination. [A colleague of mine had a case where a Chinese L-1 applicant was denied admission and then was detained to afford her an opportunity to apply for a "credible fear" determination, which she did NOT want to do and the POE was remote from the nearest asylum office that dealt with such matters -- they came once every six weeks!]. I realize that this is not in the scope of your little essay, but it should be mentioned.

Paulgani

"Folinskyinla" wrote in message
news:544180.1035829690@britishexpats-
.com...
    > You just KNEW that I was going to comment, didn't you?

You could say that I was counting on it. :-)

    > Another point -- the statiscal analysis you make contains a hole: most
    > non-immigrant admissions are for visits and they leave.

Yes, I know. I don't recall any place in my essay where I am specifically
advising people who wish to attempt entry with the intent of staying. Nor
was my essay written for that purpose. It was written to present all of the
facts, and so I believe my statistical excerpt is appropriate.

    > Also, on the
    > Mexican border, there are many instances of people make attempted
    > entries on false claim or forged documents at the land border.

Yes, that would explain why they make up 90% of ERs. I did, however,
exclude all Mexican ERs AND successful entries in my stats analysis. Thus,
the final number represents "rest of world", and so should be
representative. Indeed, I believe the ER percentage is even lower than 1 in
3083, because the overall numbers don't include most Canadian entries!

    > Final point -- at the border inspection process, there are two ways to
    > prevent summary exclusion -- one is a colorable claim to already being a
    > lawful permanent resident.

I don't get it. If you're not, that would be a misrepresentation, and they
could check their computers and discover the truth very easily. Besides,
can't they still deny PRs entry on the basis of suspicion of abandonment of
PR?

    > Two is a claim to well found fear of
    > persecution -- this can get you a "credible fear" determination.
    > I realize that this is not
    > in the scope of your little essay, but it should be mentioned.

I don't get you. You seem to chide me because you believe I am advising
people on how to get around the system. Yet you keep bringing up credible
fear, as if to offer another method of getting around the system!

While I am sure there are some alien spouses/fiances of USC who may have
legitimate "credible fear" claims, it hardly seems appropriate to suggest it
as a method or option to effect an entry. Besides, doesn't it take years
longer to get a green card that way vs. an IR petition?

Paulgani

Folinskyinla

Hi:

I didn't mean to suggest that you wer suggesting that people should lie. However, I was concerned that people might read the statistics and draw the wrong conclusion.

On the returning LPR claim -- I have one client where she had been coming in on long-term non-immigrant visas for years and the computer showed that, as a child, she had been admitted for LPR and she never knew it! So we have an interesting abandonment case going before the Immigration Judge here.

On colorable claims to LPR status, the Supremes have stated that the alien is entitled to a hearing and the burden of proof is on the Government to show abandonment. The BIA has followed this: see Matter of Kane in 15 I&N Dec. and Matter of Huang in 19 I&N Dec. The two chief cases from the Supremes are Chew v. Colding and Landon v. Plasencia.

The tricky part about LPR claims is that the statute has ALWAYS put the burden of proof on the alien -- but case law goes the other way. Once I had an INS trial attorney arguing that the Immigration Judge had to follow the statute and I inquired sweetly if he was aware of a case from the Supremes called "Marbury v. Madison"?? The TA did not appreciate that one bit. The point being, when in doubt, bet with what the Supremes have to say on the matter.

On the "credible fear" -- yes, the "green card" takes a lot longer -- but we're talking about what happens at ENTRY. Also, if an asylee marries a US citizen, they can then apply for IR AOS [been there, done that].

Spam

Original message from paulgani , dated Wed, 30
Oct 2002 at 17:10:08:

    >"Folinskyinla" wrote in message
    >news:[email protected]...
    >> A lot of typos -- there were several instances where you used different
    >> sections when you meant "214(b)."
    >This is very strange. I looked at my Outlook Express "Sent Items" to see my
    >transmitted essay. It shows:
    >214(b) determination. Thus, you are taking a bigger risk than normal of
    >214(b) determination. Thus, you are taking a bigger risk than normal of
    >However, on http://britishexpats.com/forum/t114508.html my essay shows:
    >212(d) determination. Thus, you are taking a bigger risk than normal of
    >212(e) determination. Thus, you are taking a bigger risk than normal of
    >This is bizarre! There are a couple of other mysterious "substitutions"!
    >Does anyone have any idea why this would happen?
One possible reason is that britishexpats is changing the text to avoid
spreading any embedded javascript - some web based portals to email and
usenet examine the text of any posting for strings which look like
executable code and change them to something innocuous. e.g.
"JavaScript" becomes "java-script", "eval" becomes review".
--
paul
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