CBP Correction and Visa Issuance After Extensive Delay05 Aug 2011
The Murthy Law Firm is proud to report a recent resolution in the long delay in the processing of a nonimmigrant visa application. This was a result of determined efforts by attorneys in our firm, who found a creative solution to a client’s immigration problem. In this particular case, it was necessary to untangle a series of problems that led to a problematic entry in the U.S. Customs and Border Protection (CBP) computer records, preventing the consulate from issuing the requested H-4 visa. We would like to express our appreciation to our client for permitting us to share her story, in the hope that other MurthyDotCom and MurthyBulletin readers will be able to avoid, or quickly correct, any similar problems or delays. The Murthy Law Firm does not reveal the identity of any client or the specifics of a case without written consent.
Employer Cannot Cancel an Error in H1B Revocation Request
The problems in this case began when the employer of this individual mistakenly requested the revocation of her approved H1B petition. After the U.S. Citizenship and Immigration Services (USCIS) transmitted confirmation of the H1B petition revocation to the employer, the employer made unsuccessful efforts to reverse the revocation. The USCIS does not allow employers or petitioners to request revocation and then change their minds. Cases can sometimes be re-filed and procedures followed for individuals to regain their status, but the requirements go far beyond sending a simple letter to USCIS, indicating the revocation request was an error.
Mistaken Withdrawal of H1B Petition Leads to Loss of H1B Status
The problem was further compounded because the employer did not inform his employee regarding the H1B revocation. The employee believed that her H1B status was valid, and she continued to work. The employer eventually filed a request for extension of the employee’s H1B petition and prior H1B status. This H1B filing was denied by the USCIS for reasons unrelated to the lack of status. Even after receiving a copy of the USCIS denial of her employer’s H1B extension petition, the individual was still unaware that she had previously lost her H1B status. Since the denial was for unrelated reasons, it did not contain information about the earlier H1B revocation.
Visit to CBP Deferred Inspection Leads to Further Problems
By the time the employer’s H1B extension petition was denied, the individual’s I-94 card had expired. Since she had last received an I-94 at the port of entry (POE), she thought that the POE officials had the authority to issue an extended I-94 in her situation. Without first obtaining legal advice, she attempted to secure a new I-94 card by visiting the CBP office at the airport closest to her U.S. residence. The CBP’s role with respect to I-94s is limited to issuing the I-94 to travelers upon their return to the United States. It is sometimes possible to obtain corrected I-94s through the CBP once one is in the U.S., but only if the CBP inspector issued an I-94 with a mistake of some sort to a traveler entering the United States. The CBP officer at the airport met with the individual in this case and listened to her request. He checked her H1B documents and expired I-94 card against the CBP records system. He informed her that her H1B petition had been withdrawn almost one year prior to her visit. She was detained for several hours while CBP decided whether she should be issued a notice to appear (NTA) for removal proceedings from the United States. Fortunately, she was released, but was told that she had no legal status and could not remain in the U.S. The individual then departed the United States, as she had promised the CBP she would do, returning to her home country.
Consulate Reads CBP Records as Finding of Inadmissibility
Once back in her home country, the individual applied for an H-4 visa in order to return to the United States and continue living with her husband – an H1B status holder. Following an interview at the U.S. consulate, the individual was refused an H-4 visa. She was issued a 221(g) form, which stated that CBP records showed her as being inadmissible for accruing unlawful presence and triggering a bar on her reentry to the United States.
Murthy Contacted Post H-4 Visa Refusal / CBP Error Analyzed
It was only after the H-4 visa refusal that this individual recognized the complications and finally engaged the Murthy Law Firm for representation in this matter. Her case was assigned to our Special Projects Department. The Murthy Law Firm attorneys noticed that the I-94 card issued to our client at the time of her last entry into the United States was incorrect. The I-94 card carried an expiration date that was six months earlier than the expiration date on her approved H1B petition (that H1B approval had contained an attached I-94 card that had validity dates matching the petition validity dates).
Murthy Faces Off with CBP and Consulate to Argue Admissibility
Although the H-4 visa applicant had inadvertently fallen out of status after the revocation of her earlier H1B petition while in the United States, this would not have made her inadmissible. The inadmissibility would have been based upon being unlawfully present. Unlawful presence is related to, but different from, being out of status. [The rules governing unlawful presence are complex and beyond the scope of this article.]
We at the Murthy Law Firm successfully argued that our client did not begin accruing unlawful presence until the correct expiration date of her I-94 card. Therefore, based upon the longer I-94 card attached to her H1B approval notice, we were able to convince both the CBP and the U.S. Consulate abroad that the H-4 visa applicant had not yet accrued 180 days of unlawful presence at the time when she voluntarily left the United States. Thus, she should not have been considered inadmissible to U.S. based on her history of the violation of her prior H1B status.
CBP Issues Correction Letter re Notation in Database
The Special Projects attorney at the Murthy Law Firm contacted the appropriate CBP official at the POE, where our client had gone, and explained that there should not have been a finding of inadmissibility. We engaged in a series of communications with various CBP officials at the POE explaining the legal reasoning that there should not be a 3-year or 10-year bar for this visa applicant to reenter the United States. The responsible port director agreed with our legal reasoning and position, and issued a letter stating that, despite information contained in the CBP’s records, the agency had not made a finding of inadmissibility on the day that our client visited that POE. We submitted the CBP letter to the consulate in order to rectify the situation. However, the consular officer involved remained unconvinced and refused to issue the H-4 visa.
Additional Efforts Lead to Visa Issuance
The diligence and perseverance of Murthy Law Firm attorneys required they expand their efforts to communicate with other government officials, to request that the derogatory information or possible incorrect “hit” be edited or removed from CBP’s records. Our attorneys used a Freedom of Information Act (FOIA) request to obtain copies of the CBP records in question. These records were used as proof that the CBP had not made a finding of inadmissibility. The CBP records were again provided and forwarded to the consulate, along with further communications from the CBP and other interested U.S. government offices. We obtained all this additional information to push hard for our client’s H-4 visa issuance.
After months of delay in visa issuance, the CBP records were edited or cleared of sufficient derogatory information for the consular officer to issue the requested H-4 visa. Our client was thrilled to be allowed to return to the United States and be reunited with her husband after so much time and effort.
Obtain Proper Legal Advice before Going to CBP or Consulate
Problems that are incorrectly addressed tend to grow and become more complex. That was the case in this matter. We always strongly suggest obtaining proper, qualified legal advice from a knowledgeable and experienced attorney when problems arise.
The Murthy Law Firm is proud to share this positive outcome with MurthyDotCom and MurthyBulletin readers. We would like to express our appreciation for the hard work and cooperation of the CBP and U.S. consular officials and officers involved. We also offer this example of the need for all nonimmigrants to check their I-94 cards at least twice, once at the airport or border crossing and again to ensure that an error was not made during the issuance of the I-94 card. Nonimmigrants must also be careful to maintain their respective nonimmigrant statuses or risk potential visa denials when they apply for their next visas at U.S. embassies or consulates abroad. Should any of our readers have problems with incorrect findings of inadmissibility, or refusals of visas or of admission to the United States by the CBP, we at the Murthy Law Firm are available to assist you.
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