My friend was permanently excluded as an immigrant from the U.S. under INA §212(a)(6)(C)(ii) (because no immigrant waiver exists for misrepresentation). I know it is possible for him to apply for a non-immigrant waiver, but why would INS even consider admitting him? Wouldn't they just assume it was another misrepresentation to get into the U.S.?
INA §212(a)(6)(C)(ii) is the ground of exclusion that applies to aliens who falsely represent themselves to be United States citizens. You are correct that the limited immigrant waiver available for other misrepresentations will not apply. However, your friend is still eligible for the general nonimmigrant waiver available under INA §212(d)(3).
Although your friend is technically eligible to apply for the INA 212(d)(3) waiver, the granting of such a waiver is discretionary. Your friend's credibility is very low as a result of the prior misrepresentation. The INS also considers misrepresentation to be a serious immigration violation. A significant period of time will have to pass before your friend can realistically obtain a waiver.
I am currently in the United States in TN status and my spouse has TD status. We plan to adopt a foreign child soon (1 year old) but have been told that bringing this child into the United States may be difficult. Is this true?
The term "child" is defined in INA §101(b)(1)(E) as including an adopted child. However, the child must be adopted while under the age of sixteen years. The child must also have been in the legal custody of, and have resided with, the adopting parent or parents for at least two years.
Although you will have adopted the child while he or she is under the age of sixteen, you will not immediately satisfy the two-year custody requirement. Although the required two-year period of custody can occur before the date of adoption, you probably will not have custody of the child before that date. If not, this adopted child will not immediately qualify as your child for immigration purposes. The only way to bring the child into the United States will be as a B-2 visitor. The problem is that B-2 visitors must maintain a foreign residence abroad and generally not enter for extended periods of time.
Prior to the implementation of the NAFTA, the INS used to regularly issue B-2 status to dependents of aliens working under TC status (the predecessor to the TN). The Canada-U.S. Free Trade Agreement ("FTA") did not specifically provide for dependent status. The INS Operations Instructions for the FTA stated that the spouse and unmarried minor children of a Canadian citizen who was classifiable as a TC professional would be entitled to classification as B-2, if they were otherwise admissible. In addition, the Operations Instruction stated that the B-2 unmarried minor children of a TC Canadian citizen would be eligible to attend school in the United States during the period of authorized temporary stay, provided that such education was incidental to their status and was not the primary objective for entry.
In light of this prior practice, you have a fairly good chance of getting the INS to give your adopted child B-2 status, even though he or she does not technically qualify as a child under the INA. After you have accrued two years of custody, you will be able to successfully obtain TD status for your adopted child.
I am a Chinese citizen. During the 80's, I completed my Ph.D. in the United States as a J-1. I am subject to the J-1 two-year home country requirment. Instead of returning to China, I went to Canada. I then became a Canadian citizen and lost my Chinese citizenship. If I decide to seek employment in the United States, is it better for me to use TN status or can I obtain H-1B status?
On March 31, 1997, the United States Information Agency ("USIA"), which administers the J-1 program, stated that it was willing to consider granting a J-1 waiver to an alien who lost his or her home country citizenship. The case related to a Chinese scientist who was subject to the two year home country requirement had subsequently become a citizen of Canada, thereby losing his Chinese citizenship. He successfully persuaded the USIA that the contract law principle of impossiblity of performance voided his two-year home residence requirement.
However, on Aug. 7, 1998, the USIA changed its mind and announced that it would not normally recommend a J-1 waiver solely based on the alien's assertion that fulfillment of the two-year home residency requirement was not possible due to his or her loss of home country citizenship. However, it did state that in rare cases the USIA would consider, on a case basis, those extraordinarily few instances where fulfillment of the two-year home residence requirement was impossible "due to facts totally beyond the control of the waiver applicant and which were not the predictable consequences of action on the part of the applicant."
In summary, your strategy will probably not work. If you obtain Canadian citizenship, the loss of your Chinese citizenship will not be due to facts totally beyond your control. Further, loss of Chinese citizenship will be a predictable consequence of your obtaining Canadian citizenship.
As you will not be eligible for H-1B status, you will have to seek admission under TN status, assuming that you are eligible under that category.
