What if my non-US citizen fiancée is denied entry into the US at the airport?
November 29, 2005 6:42 PM   Subscribe

My fiancée and I are travelling to her country this Christmas to visit some friends and her family. I am a US citizen and she is Moldovan. She is a grad student at my university here in the US. As she is from a non-EU Eastern European country, there is a chance that she may not be allowed entry into the country due to some technicalities, even though she will have received another valid F1 visa. If she is denied entry in the airport, what can I do? Am I allowed to see her, arrange for her flight home or contact a lawyer before they force her out?

We both have a pretty good understanding of what each US visa means and allows--she is currently studying on an F1 visa and was here previously on a J1 visa, for which she has completed 14 of the 24 month home-stay requirement. I am concerned that once I'm re-admitted into the US at our port of entry, I will have no way to contact or hear from her in case she is denied entry. As we are not yet married and she is not from the EU/Japan/Commonwealth it is inadvisable for her to state that we intend to get married if she is entering on F1 status. Although we have no legal status in the eyes of the INS, we do live together and have shared common bank accounts, etc for over three years.
posted by vkxmai to Travel & Transportation (17 answers total) 1 user marked this as a favorite
You need to see a good immigration lawyer before you leave and preferably now. Opinions are a dime a dozen on immigration matters and most of them are wrong. Most lawyers will give you a free consult before you engage them. Take advantage of this. Now. Good luck. It'll work out if you do the right things.
posted by firstdrop at 7:17 PM on November 29, 2005

Second that and add that the good immigration lawyer should have experience with the particular port of entry that you would use.

I also know that care is warranted. Any border guard can deny entry to any non-citizen, no matter what their visa status. And then that can easily become the basis for further refusal of entry - I don't know the specifics (hence my seconding the 'call a lawyer' advice) but I think having been denied entry once is considered cause to deny entry in the future. This is why they always ask that question - 'have you ever been denied entry before?'
posted by mikel at 8:13 PM on November 29, 2005

Thank you, I know of a few lawyers around here that I can contact. The last time she arrived, the border guard said "You can't come in because it says you have an outstanding J1 home-stay requirement" and she responsed by saying "The US Embassy issued this visa to me to continue grad school. I did go home for over a year to graduate there and now I'm back." He agreed and let her in. I hope it goes like this a second time. I will call the lawyer tomorrow.
posted by vkxmai at 8:30 PM on November 29, 2005

I know this is not an answer to the question that you've asked but . . .

It seems like a pretty bad idea for her to leave the country till her immigration situation is settled. Unless someone in her family is on their deathbed or something, stay stateside. It seems pretty frivolous to travel just for vacation when there is such a great chance that she will be denied re-entry upon return.
posted by necessitas at 8:44 PM on November 29, 2005

A good friend of mine faced a similar situation last year. She really wanted to introduce her boyfriend to her family in Columbia. After considering all the immigration issues and the potential difficulties with re-entry, they cancelled the trip. It simply wasn't worth it for them. Not being able to return would have been a serious setback to her graduate studies.

So I second necessitas - unless its dire, I wouldn't risk it.
posted by aladfar at 9:08 PM on November 29, 2005

She has to renew her passport there because it expires soon. Otherwise we'd stay home or at least within the US for vacation.
posted by vkxmai at 9:09 PM on November 29, 2005

Forgive me for dropping in again but I recently graduated from eight years of visa/green card hell and I just want to make sure you do it with less anxiety than I did. (It would probably be hard to do it with more anxiety.) You're absolutely sure the nearest embassy/consulate won't renew her passport in the U.S.? As others have said, and as you recognize, it would be great if you sorted out your problems here rather than dealing with them after the fact of her exclusion. And of course the first question a lawyer will ask is why you don't get married now which would solve all your problems as far as I know. The answer to that question is none of my business. Again, good luck.
posted by firstdrop at 9:33 PM on November 29, 2005

She can get her passport renewed in DC.
posted by necessitas at 9:50 PM on November 29, 2005

I have numerous friends and relatives who faced similar situations and decided to just get married right away, without telling any friends or family. Then they had their real weddings at subsequent dates of their choosing. If you have no doubts in your mind about getting married, you might consider this option. My brother and cousin, and their respective wives, who took this route, have all told me that they got a thrill out of being secretly married, like it was (counterintuitively) a transgressive act.

But whatever you do, see a good immigration lawyer first.
posted by dh65 at 2:38 AM on November 30, 2005

OK, the issue is a bit more complex. Her passport can only be extended by one year increments in DC, not renewed. There are personal and family reasons as to why we are going back as well, it's not on a whim.

I will post what the lawyer recommends/advises. From my understanding, since she has already been into the country once before with the same outstanding J1 home-stay requirement, it may be viewed by the immigration official as a precedent.
She will also have a document with her from the school's international services office explaining that she is in the middle of her studies, has full financial backing and has established a good record of study, residence, etc.

As far as the marriage option goes, that could not happen secretly (now, anyway) as I would be legally obligated to change health, dental and auto insurance. I'm also not sure how that might affect my eligibility for student loans via the FAFSA. We'll probably get married this coming summer, though.
posted by vkxmai at 3:48 AM on November 30, 2005

(I spent time on a J1 and H1B, currently a PR) - The home residency requirement may be a serious issue. Sure, they did let your partner in before, but that was essentially a mistake (in your favour) on their part. You may not be so lucky again.

To answer your actual question: If immigration officials decide to deny her entry, what you can do is mostly determined by what they feel like allowing you to do. You can defintely contact a lawyer - they can't stop you doing that - but they may not let you see her, and they may not let you make travel arrangements for her. You will have almost no rights. The whim of the immigration officer is effectively law. More accurately, how the officer feels that day determines how they apply the law. Bad mood means they'll stick to the absolute letter.

Frankly, in your situation, I would not be leaving. The consequences of being denied entry could be severe. You get an officer who is in a bad mood, they say "incomplete HR requirement? Banned from entry for five years. Goodbye." I'm not saying that will definitely happen, but it definitely could happen. This would screw your life up right now wrt school and life in general, and although it's not actually a show-stopper, it would make things even more complicated if/when you get married. (Advance warning if you think marriage means "automatic" permanent residency: Ha hahahahahaha. Get ready for some paperwork.)

There almost certainly isn't enough time, but it is (or at least, used to be) possible to obtain a waiver for the home residency requirement; this requires lots of paperwork and a letter from one's home country's government stating (more or less) "we don't care if they don't come back just yet." (Why? Because the home residency requirement is ostensibly to protect home countries. J1 is an "exchange" visa; people are supposed to come to the US, learn some useful skills, and then take them home.)

If you decide to go, some general advice (for when you come back) that you may already be aware of: Under no circumstances try to bullshit the immigration officers. Be honest, don't get mad, don't give them any shit. Those guys have super bullshit radar and they really, really hate it when people tell a few porkies just to get in to the US.

Sadly, you don't have time to do much of anything. You can see a lawyer, and they can hustle some things though, but doing almost anything with the ICE and/or USCIS takes forever.
posted by buxtonbluecat at 5:32 AM on November 30, 2005

ICE wouldn't have very much to do with this one, I would hope, unless you are smuggling arms or your betrothed is some sort of radical Islamist or some such.

The folks you need to see are the Moldovans. They can issue your fiancee a waiver of her J-1 foreign residency requirements, badda-bing, badda-boom, no more requirement, that is if you can convince the Moldovan Embassy.

Now, as for CBP, they don't really care if you are engaged or not, that would be the State Department and they have already given her the visa, no? Generally, they should not have any issues with admitting anyone who shows up with a valid F-1 visa. I won't say that it can't happen or that it's never happened, but unless there is something shady in your ladyfriend's dossier, I wouldn't think she's going t have a whole lot of trouble. Just make sure that your fiancee's I-20 is updated and endorsed for travel by her DSO. If you have more questions please feel free to e-mail me at pollomacho at hotmail.
posted by Pollomacho at 6:54 AM on November 30, 2005

Now, as for CBP, they don't really care if you are engaged or not, that would be the State Department and they have already given her the visa, no?

They do care. They are not supposed to admit anyone on a non-immigrant visa who intends to immigrate, and being engaged or married to a US citizen is considered serious intent to immigrate.

I am not a lawyer, I've just been dealing with USCIS as a non-citizen for a while now. I tenth (?) all the people who say go to a lawyer before you leave. It is 100x easier to try to sort things out from inside the US than once you've left. I think there are some serious misconceptions in your original post. Her being from somewhere outside the EU makes no difference one way or the other on whether she should tell them you're engaged - it's a bad idea for everyone, and your shared bank accounts and residence harm your case rather than help it. It's all about the immigrant intent.

This kind of situation has the potential to turn out really badly. I don't want to be alarmist, but the worst case scenario is that you don't get to see her, she gets taken to a detention center (probably a regular jail) in handcuffs for at least a day or too, is put on a plane and is banned for a long time or permanently.

If you do end up doing this without legal advice, my opinion is that you should stay with her in the USCIS line, and for as long as they will let you afterwards if she has problems. Lots of citizens don't know that it's almost always ok for them to go through the non citizen/greencard line with a non citizen. Of course, staying with her makes it more obvious that she's your fiancee, and that might make it more likely that you'll have problems.

Good luck.
posted by crabintheocean at 7:37 AM on November 30, 2005

Having to change health, auto, and dental insurance is keeping you from getting married? Compared to a very real possibility that your fiancee could be denied entry into the US?

I'm not sure I understand whether the reluctance to get married is financial or bureaucratic, but weigh it against the worst-case scenario, that your fiancee may be detained, deported, and denied entry for years.

Please do not leave the country without talking to an immigration lawyer.
posted by ambrosia at 7:56 AM on November 30, 2005

This kind of situation has the potential to turn out really badly. I don't want to be alarmist, but the worst case scenario is that you don't get to see her, she gets taken to a detention center (probably a regular jail) in handcuffs for at least a day or too, is put on a plane and is banned for a long time or permanently.

This is not going to happen, period. Again, I cannot guarantee anything, but I will say, again, that it would be a very rare occasion indeed for someone carrying a valid I-20 endorsed for travel and signed on pages one and three and an up to date F-1 visa to be turned away at the port of entry. The most likely scenario is she will get through the primary line in about 45 seconds and will meet you on the other side. If they ask, "who are you traveling with" she and you should honestly say, "my boy/girl friend." (you don't have to volunteer that you are engaged).

You will be separated at the POE, she will have to go to her line and you to the citizen line, do not stay together at this point. If they have further questions for her they will send her to "secondary." That means a little room where an agent will look up her info on various databases. It might be a little while depending on the work load at that moment, but it won't be that long. Most likely, even if sent to secondary, she will be sent on her merry way. If they have questions they'll give her a document called an I-515 which gives her 30 days to send in any documentation that they feel is missing, no big deal.

Worst, worst, worst case scenario, and this is providing your gf is not secretly in Al Queda or has a criminal record or warrant, is that they will "parole" her. That means they will release her on her own recognizance until her removal hearing (a few weeks from then). As she's got a pretty good case to build, she would probably not be removed (the fancy term for deported) after her hearing. again, I can make no guarantee about this, but suffice to say that it would be news if a valid F-1 student was turned away at a POE, (wink wink, nudge nudge) just think of how it would play in the office of some Congressman that also attended your fiancee's alma mater (wink, WINK)!

Please, again, email me at the above with questions. Best of luck and congratulations.
posted by Pollomacho at 8:25 AM on November 30, 2005

OK I have spoken to two lawyers today. They both assured me that the "212E in force" appearing on the visa is NOT to be enforced by the border guards, it is an indication to the US Embassy or Consulate for when/if she reapplies for another visa. Once the US consulate issues an F1 visa, they are stating that she is legally allowed entry into the US. One lawyer even indicated that the airport where she had trouble the last time was notorious for being "unaware of most regulations with visas." Our POE will be Dulles this time, so no problem there. They both said that it would be a violation of policy and the rights of the visa holder to bar entry on a whim (no violations) and that usually there is recourse for such instances.

The waiver is very difficult to get for J1 status that was funded by the US gov't. So we'll deal with that.

Both lawyers assured me that people who are denied entry to the US for non-infractions are NOT arrested or treated like criminals. They both recommended that she stay calm and ask to speak to that person's supervisor. They both indicated that since the US Embassy issued the first F1, they will likely do the same this time around since it is for the same place/program.

As for personal preparations, we know the drill: take off all rings, don't stay too close, do not carry each other's stuff, etc. She will have ample documents stating that she is in the middle of her program where she has full financial backing.
posted by vkxmai at 9:03 AM on November 30, 2005

Thanks for letting us have the good news. Congratulations.
posted by firstdrop at 10:13 AM on November 30, 2005

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