I. Scenario: My client is a TCN seeking to renew her H-1B visa at a … - 01 - Spring... · 2020-06-12 · I. Scenario: My client is a TCN seeking to renew her H-1B visa at a U.S

I. Scenario: My client is a TCN seeking to renew her H-1B visa at a U.S. Consulate in Canada.

a. Foreign Degreesb. U.S. Degreesc. Normal Processing timesd. Administrative Processing triggerse. Children

Her H-4 TCN husband has:

a. Been charged with DUI;b. Been Convicted of DUI;c. Has been arrested for, but never charged with or convicted of DUI;

II. Scenario: My client is seeking to consular process pursuant to an approved I-130and I-601A. Her last entry into the United States was in August 2009, withoutinspection.

a. If my client initially entered the United States without inspection in January 1995 andremained here until March 1, 1998, and then stayed in Mexico until she came back inAugust 2009, is she eligible to consular process?

b. What if she remained in the United States until December 2000?c. What if she remained in the United States until December 2000 but turned 18 in June

2000?d. What if she remained in the United States until December 2000, but her entry in August

2009 was with a tourist visa?

III. Scenario: My client is an undocumented worker and wants to immigrate to Canada. What are his options and can he do this from within the U.S.?

a. EWIb. Overstay c. Criminal record

IV. Scenario: My client has a conviction for possession of less than 30 grams ofmarijuana from 2007 in WA. He was able to get the conviction vacated/ expungedpursuant to Washington’s rehabilitative statute. He is married to a US citizen andthe beneficiary of an approved I-130. His I-601A has been approved, and he isscheduled to consular process next month.

a. If my client wants to return to his family in Washington, is he eligible for an immigrantvisa?

b. What if he wants to immigrate to Texas now?c. What if he smoked marijuana up until one year ago?

2018 NW Regional Immigration Law ConferenceFamily-Removal Track, Session 4

Consular Processing Strategies

March 15-16, 2018 Page 1 of 8

d. What if he works on a marijuana farm?e. What if he also has a drug related tattoo on his right shoulder?f. What is his brother is a member of a known gang in Oregon?



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CANADIAN INADMISSIBILITY: TIPS, STRATEGIES & HOPE

By Terry T. Preshaw, Barrister & Solicitor, B.C.

Attorney at Law, WA State

U.S. travelers who have been blithely traveling to Canada for decades have suddenly found the door slammed shut by Canadian Border and Security

Agency (“CBSA”). Additionally, Trump’s immigration policies and directives have created

tremendous interest in Canada as a safe haven for H-1B “hostages” and undocumented workers.

Third country nationals seeking to U.S. consular–process in Canada have sometimes been surprised at the border when the door slams due to

undetected admissibility issues.

This article will examine how we have come to this, and what the “suddenly inadmissible” and the “suddenly terrified” can do to re-open the door to

Canada. CBSA HISTORY

CBSA was created partially in response to 9/11 by an Order in Council on

December 12, 2003. CBSA became responsible for providing integrated border services to facilitate the free flow of persons and goods as well as supporting national security, public safety and trade. Immigration

enforcement and intelligence responsibilities under IRPA were transferred from Canada Immigration & Citizenship (“CIC”) to CBSA.

CBSA, ADMISSIBILITY, AND DATABASES

Through the “Admissibility Determination Program”, CBSA enables border services officers to intercept people who are inadmissible to Canada. Primary

inspection officers rely on the Integrated Primary Inspection Line (“IPIL”), which enables officers to perform “real time” queries on travelers targeting enforcement actions and lookouts. Anyone deemed suspicious (either via IPIL

and/or observed behavior) is sent to secondary inspection.

Secondary inspection officers have unlimited access to a wide array of databases, including: Integrated Customs Enforcement System (“ICES”); Field Operations Support System (“FOSS”); Canadian Police Information



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Center (“CPIC”); and most importantly, the National Crime Information Center (“NCIC”).

NCIC is a database also utilized by U.S. law enforcement agencies and has a

reputation for being out of date. This can definitely be a problem, if stopped at the border and confronted with NCIC data that points to a conviction when, in fact, charges were dismissed.

An NCIC search is how CBSA often finds out about an un-volunteered U.S.

criminal history. CANADIAN BORDER INSPECTION

When a U.S.-based traveler arrives at a Canadian Port of Entry, a CBSA

officer will inspect this person to determine whether or not he/she is admissible to Canada. The officer will typically ask questions like “where do you live”, “what is the purpose of your trip”, “how long will you stay”, “do

you have anything to declare”, “do you have any firearms or pepper sprays” while they scan your passport and/or enter your name, birth date, address

into the IPIL system.

If there is a “hit” then the traveler will be asked further questions such as “have you ever been arrested”, “have you ever been fingerprinted”, “have you ever been convicted of a crime” and then likely sent to secondary

inspection. It is critical to respond truthfully – every question is a “trick” question with only one right answer: the truth.

Enduring a CBSA secondary inspection is like treading water that suddenly turns into quick sand. The traveler must be forthright and accurate in

answering CBSA questions. Misrepresentation, either by commission or omission is the death-blow in terms of Canadian admissibility. One wrong

answer and that sinking feeling heralds a harsh reality: CBSA determines that the traveler is inadmissible.

So why is this an issue for folks who have been traveling for decades without incident? Because now, through NCIC searches, CBSA has access to U.S.

criminal record databases stretching back for decades. Now CBSA is looking at these “ancient” records revealing arrests, convictions, even fingerprinting that may make a U.S. traveler inadmissible.

Many times, older U.S. travelers will not even remember the events that led

to fingerprinting, arrest or conviction. They have put these events out of mind because they have moved on with their lives and past the unfortunate circumstances. Thus, when the CBSA officer asks “have you ever been

arrested” sometimes the traveler says “no” because the memory is buried



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deeply. But the officer knows that this individual has a record, a very visible NCIC record. The traveler is found to be inadmissible and refused entry.

CANADIAN INADMISSIBILITY

There are multiple grounds for inadmissibility to Canada. The more common

reasons for U.S.- based travelers are: (1) DUI, shoplifting, reckless driving, theft, any minor or serious crime

resulting in a criminal history (can be criminal conviction or criminal act); (2) Serious health problem;

(3) Serious financial problem; (4) Misrepresentation of a material fact (either by omission or commission) in any IRPA application or interview;

(5) Having an inadmissible family member

Other grounds include being deemed a security risk, having committed human or international rights violations, or being connected with organized

crime. Many of the “suddenly inadmissible” are folks with a DUI (or another minor

criminal offense) from 20 – 30 years ago. This is what surprises them – decades of unimpeded travel to Canada and then: no entry. Fortunately,

relief from this harsh outcome may be available in some cases. OVERCOMING CRIMINAL INADMISSIBILITY

Admissibility strategies will depend upon the crime or crimes committed,

when the crime was committed; when sentencing was completed; and evidence of the traveler’s good behavior since the crime was committed.

First step is to determine whether or not there is a Canadian crime equivalent to the traveler’s U.S. crime. If there is, then we must determine

whether or not the Canadian crime is an indictable offence (including “hybrid” offences) or a summary conviction offense. If the U.S. crime is equivalent to



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a Canadian indictable offense then we know that the traveler is inadmissible for certain and we must consider his/her eligibility for:

1. DEEMED REHABILITATION

This is the best and most desired option. An information only IMM 1444 + required supporting documentation is prepared and the traveler submits the

same for instant adjudication by CBSA at the border.

This option is available for the traveler who has committed only one (1) crime equivalent to a Canadian indictable offense or two (2) or more crimes equivalent to a Canadian summary conviction, and the

maximum prison term for the Canadian equivalent crime was less than ten (10) years.

Sentencing must have been completed at least ten (10) years prior to application for Deemed Rehabilitation for an indictable offense crime and

only five (5) years for a summary conviction crime. If approved, the traveler is no longer criminally inadmissible and will be able to travel to

Canada once more.

2. CRIMINAL REHABILITATION (“CRA”) For U.S. travelers who have committed one (1) or more crimes and have

had at least five (5) years elapsed since completion of sentencing (includes probation) this option may be the best strategy for overcoming

criminal inadmissibility. Unfortunately it can take 1.5 years or more for processing which must be done through the Canadian Consulate in New York.

In some cases, the Criminal Rehabilitation Application (“CRA”) can be submitted at the border and if accepted, will save the applicant

approximately 6 months in processing time. 3. TEMPORARY RESIDENT PERMIT (“TRP”)

If it has been less than five (5) years since the end of the U.S. traveler’s

sentence and there are valid reasons for entry (dying relatives, compelling business reasons demonstrating economic benefit for Canada) then the traveler has the option of applying at a Canadian Consulate or directly at the

border for a temporary resident permit which will allow the traveler to enter and stay in Canada for a limited time.

Does your client have more than one crime on his/her record? Do not despair! Due to the impressive powers of discretion each CBSA officer holds,



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there have been many instances where an applicant with compelling circumstances but multiple crimes has been granted TRP.

4. RECORD SUSPENSION OR PARDON

If the U.S. traveler’s crime has been committed in Canada then a successful Canadian record suspension application will remove this as a ground of

inadmissibility. If the crime has been committed in the U.S. then a U.S. pardon or expungement may have a similar result but not necessarily.

Sometimes in their haste to clear their record, U.S. travelers will find themselves unable to document exactly what the crime was and when sentencing was complete because they have made their criminal history

inaccessible through this process.

If you have clients who have even a minor criminal history and are contemplating travel to Canada, please advise them to talk with a Canadian

immigration lawyer before they go to the border – even if they have a history of uneventful Canadian trips. A refusal of entry can be expensive,

embarrassing, and unnecessary in many cases.

H-1B WORKERS: ESCAPE TO CANADA? Many of us have H-1B clients who are trapped in the annual renewal cycle

while they wait interminably for permanent resident status. Trump’s recently withdrawn threat of not renewing H-1B visas has caused panic for many of

these folks and often times, they would be welcomed in Canada as permanent residents utilizing the Express Entry program.

Alternatively, H-1B workers may want to consider a temporary work permit in order to expedite their entry to Canada and then apply for permanent

resident status later. However: if there is ANY criminal history such as DUI in the U.S., in their

home country, or elsewhere then this client will be inadmissible. It is critical to determine whether or not this inadmissibility can be overcome. Remember

this caveat applies not only to the principal applicant but to ALL family members as well.

UNDOCUMENTED WORKERS: CAN CANADA HELP?

“We remain unwavering in our commitment to offer protection for those determined to flee war, persecution or terror,” Ahmed Hussen, Canada’s minister of immigration, refugees and citizenship, said in an interview earlier



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this month. “But there is a lot of false information in those communities. Not having or losing status in the U.S. is not grounds for an asylum claim.”1

And yet – there may be a path to Canada for some undocumented workers.

If your client qualifies for a Canadian permanent resident visa and originally entered the U.S. with inspection and lived here for one year

in status then it will be possible to apply for a Canadian visa at a Canadian Consulate in the U.S., even if this client is an overstay and currently out of

status. This is significant because Canada is not limiting its consular applicants to those who have maintained status in the U.S.

If your client entered EWI or did not live here for a full year in status then if qualified, he/she can still apply for Canadian permanent resident visa

through the Canadian Consulate in his/her home country. If an interview is required then the client will need to attend the interview knowing that return to the U.S. is likely impossible.

Criminal history caveat applies and the client must have a valid passport.

CONCLUSION

Canada offers a compassionate approach to the inadmissible traveler by creating a path to redemption and giving CBSA officers a tremendous amount

of discretion in allowing otherwise inadmissible folks the ability to enter Canada when there are compelling circumstances.

Additionally, Canada has kept its door open for H-1B workers and some undocumented U.S. workers that Trump has deemed expendable…the

American dream has never been more attainable than in Canada.

ABOUT THE AUTHOR: Terry Preshaw is one of the first lawyers to be licensed in both Canada and the United States. She is an active member of the Law Society of British Columbia, since 1985, and licensed in Washington State since 1988. She is one of very few Canadian immigration lawyers practicing in the United States, making her one of the most accessible lawyers for Americans with Canadian inadmissibility issues. Contact her at [email protected]

1 WANT TO MOVE TO CANADA? CANADIAN IMMIGRATION OFFICIALS SAY YOU SHOULDN’T BY MARIA PEREZ ON 9/27/17 AT 10:06 AM Newsweek



March 15-16, 2018 Page 8 of 8

Documents

I. Scenario: My client is a TCN seeking to renew her H-1B visa at a … - 01 - Spring... · 2020-06-12 · I. Scenario: My client is a TCN seeking to renew her H-1B visa at a U.S