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I was refused entry at the border. Do I need a waiver to re-enter?

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Often we encounter cases where someone applies to enter the United States on a visitor visa or applies at the US border for a particular non-immigrant classification, such as a TN visa. Sometimes, the border officer does not find that the applicant meets the requirement for the visa category, or believes that the applicant does not have sufficient ties to their home country and show the required non-immigrant intent. In such cases, the border officer may refuse the applicant entry into the United States.

Being refused entry into the United States can be an upsetting encounter, and the applicant may be concerned what should be done next. A common question that a lot of applicants may wonder is whether they are allowed to attempt entry again to the US.  In answering this question, it is important to remember not all “refusals” are equal. If you were allowed to withdraw your application for admission, you are allowed to re-apply the next day; if you were given an expedited removal order, a heavy 5-year bar may follow prohibiting entry into the U.S. following the denial. The consequences also depend on the reasons for the denial of entry.

Withdrawal of application for admission

Border officers have the discretion to allow applicants to voluntarily withdraw their application for admission. The border officers will communicate to the applicant their application to enter is “denied,” or “refused,” but technically it will take the form of a voluntary withdrawal. As a result, the applicant would usually be given a Form I-275, Withdrawal of Application for Admission/Consular Notification, often accompanied with a Form I-877, Record of Sworn Statement in Administrative Proceedings.

Next steps would depend on the reasons the officer thought the applicant was admissible. The most general category of refusals is where the applicant is found inadmissible under INA Section 212(a)(7)(A)(i)(I), Inadequate Documentation. A wide gamut of cases may fall under this category, including where an applicant is suspected to have immigrant intent, and where an applicant applies for a TN visa but is found to not meet the requirements for that category. These cases may be cured by simply showing up to the border on a different day with a different set of evidence that properly meets the eligibility requirements. (It is recommended to consult with a lawyer to properly understand the risks and take proper measures to mitigate them beforehand).  By contrast, if the applicant is refused admission for other bases, such as accumulation of unlawful presence under INA Section 212(a)(9)(B), the applicant would need to procure a waiver before applying again to enter the U.S., because it is likely they will be refused for the same reason.

Expedited removal

In some cases, the officer may issue an expedited removal order at the border when they are refusing entry. In such cases an applicant would receive a I-860, Notice and Order of Expedited Removal. An expedited order of removal carries a 5-year bar to re-entering the U.S. During this time, the applicant would also be ineligible to obtain an immigrant visa or nonimmigrant visa. If the applicant wishes to enter the U.S. within this time, they must apply and be approved for a waiver before attempting to enter the U.S. again.

In conclusion, not all refusals at the border carry the same consequences, so it is very important to fully understand the circumstances of a border encounter to understand what options are available to you. This is a complex area of immigration law so we highly recommend getting in touch with an experienced immigration attorney to fully understand the situation.

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