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Thread: Military member seeking advice for Canadian spouse

  1. #1

    Military member seeking advice for Canadian spouse

    Good afternoon all,

    First, I'd like to thank all the contributors to this forum. I've been lurking for a few weeks and have come across some good information.

    Now, I'd like to see if anyone can give me some more specific advice. Here is a basic rundown of our dilemma:

    My wife and I met in October of 2016. February of 2017 we decided to get engaged. She was visiting me in Hawaii at the time and had been allowed in under the Canada VWP without a return ticket (which I've read is apparently a requirement and probably played into our problem). We had a little argument, I was working pretty hard (submarine communications in the Navy, stationed in Pearl Harbor) and she had an opportunity to take a week trip to Australia. It seemed like a good idea, we could both blow off a little steam and she would come back and we would be good. Well, that's not exactly what happened. She attempted to come back on March 3rd of 2017. She made it past the customs counter when one of the officer's randomly stopped her and told her someone had a couple more questions for her. She was taken to an interview room where the short story is she was detained for 14 hours and received an expedited removal.

    I immediately took emergent leave and stayed with her for the next week in Canada. We got married on the 7th of March (again, already intended to get married, this just accelerated the time frame). Part of the reasoning was that we figured it would be much easier to work through any issues if she was married to a US citizen and had a military spouse.

    After two months of trying to figure out the right course of action without much traction, I decided to go ahead and file the I-130 to at least start the process. It has been accepted and we are waiting on the receipt and notification, so that part is ok. I have a Congressman involved as well, tracking status and keeping in contact throughout.

    Now to my request for advice: We have the Notice and Order of Expedited Removal with provision 212(a)(7)(A)(i)(I) from her attempted reentry. We know she is inadmissible and barred for 5 years. What I am unclear about is whether I can go ahead and file an I-601 or I-212 (or maybe both?) now or if I have to wait for her Consular interview? If we have to wait for the interview like the instructions say, can the Consular "overrule" the removal, again since the instructions say to file only after the Consular deems the inadmissibility? I am not assuming that my case is that unique that it's never been an issue before, but after a few weeks of intense internet searching, and asking the question in a couple of immigration lawyer consultations (one in Canada and one in Hawaii), calling the USCIS hotline, asking 2 Congressmen and 2 Senators, I still do not have a clear answer.

    If anyone has a little more knowledge, or perhaps I can provide more information if necessary to get the "big picture", I am ready and willing to discuss. Additionally, if anyone has any tips or tricks for members of the military, I am also all ears. Yes, I have attempted to utilize the Legal Assistance office on base. The one immigration attorney got stuck on one facet of the Expedited Removal and told me for the next half hour how she would not be able to get a waiver (without disclosing too much, it has admitted use of illicit substance).

    My wife is kind of freaking out about it, saying that she won't be able to come back for 5 years, and I am trying my best to keep her calm, even going so far as to show her in the waiver instructions where it talks about people commiting and being found guilty of way worse items. I am usually calm and collected, so for right now I am able to calm her down, but if I can get some advice to support me, that would go a long way.

    Thanks in advance! Again, this forum and it's contributors have been full of extremely useful information!

  2. #2
    7A is just a generic denial of entry; it doesn't mean there is a ban. There would be a 5-year 9A ban if she were removed (and you seem to say she was put in expedited removal), but if she were allowed to withdraw her application for admission and allowed to voluntarily depart, then there would be no ban. Maybe you can check what she got to make sure. It might say she was removed under INA 235(b)(1) or 240. I will assume that she was removed and thus has a 5-year 9A ban.

    If she wants to immigrate within the 5 years (i.e. before 2022), she will have to file I-212 for permission to reapply. I-601 is not applicable for this ban. (The difference is somewhat technical, but they apply for different things. I-601 applies for a "waiver" for immigrants, whereas I-212 applies for "permission to reapply". Technically, the 9A ban has no "waiver" for immigrants, but a "permission to reapply" gets rid of the ban, somewhat similar to a waiver, but permanently rather than temporarily.)

    If she has no other bans, then only I-212 is needed, and not I-601. A standalone I-212 is filed with the USCIS office with jurisdiction over the place of removal, which is the place where she was denied entry (Hawaii?). I believe it's possible to file a standalone I-212 now -- she does not have to wait until the I-130 is approved or be at the consulate.

    I am not sure what you mean by your mention of something about illicit substances, but it might mean she has another ban, which might need a waiver with I-601, depending on the specifics. If she needs both I-601 and I-212, they should be filed together to the Phoenix Lockbox, and I believe she would have to wait until being denied at the consulate before she can file.

    The forums have lots of people familiar with I-212 and I-601.

    (P.S. Canada is not part of the VWP. Canadians do not enter on VWP and are not subject to VWP rules.)

    This is my personal opinion and is not to be construed as legal advice.

  3. #3
    Thanks for the quick response!

    As far as the removal order, I have the Form I-860 (Notice and Order of Expedited Removal) and the DHS Form I-296 (Notice to Alien Ordered Removed/Departure Verification) sitting in front of me . I understand what you are saying; I'm new to the immigration stuff (it happened 2 months ago so I've been learning what I can where I can). It does state "Pursuant to section 235(b)(1) of the INA... inadmissible under section (7)(A)(i)(I)..."

    I did request an interview / meeting with the Honolulu Airport CBP office (the office that issued the Expedited Removal) and they told me that she was not allowed to withdraw her request or voluntarily depart based on the decision of the overseeing CBP Officer and the CBP Supervisor. As far as my previous comment, I guess I (and probably a lot of other people) don't understand how bans are presented. On the I-860 there are 6 items (1. You are not a citizen of the US; 2. You are a native of Canada and a citizen of Canada; 3. etc...) but ultimately just states the Pursuant statement from the previous paragraph I mentioned, and at the very end of the list after the ============= line on the I-860. I'm trying not to confuse myself or anyone else, so if I can provide more information, please ask.

    I'll jump over to the other forum as well, thanks for the push in the right direction. If I can file the solo I-212 (as much as I love waiting) now, that would be awesome. Appreciate the assistance!

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