USCBP Denial of TN Visa Application at the Border
Canadian citizens may apply for TN visa status at the U.S. border. Citizens of Mexico must seek admission to the U.S. with their TN visa stamp at the border as well. The following provides an overview of how and why USCBP may deny a TN application or otherwise refuse an individual's entry to the U.S. under TN visa status.
An individual may be denied TN visa status either on the merits (under INA 212(a)(7)(A)), or because he/she is subject to one of the various grounds of inadmissibility (under INA 212(a). There are generally 3 potential negative outcomes in the event of such denial: (1) the individual is detained for a removal hearing before an immigration judge; (2) the individual is expedited removed from the U.S.; or (3) the individual is allowed to withdraw his/her application for admission to the U.S. In most TN visa denials, individuals will be facing either outcome # 2 or # 3.
Intending Immigrant Under INA 212(a)(7)(A)
U.S. immigration law presumes that every foreign citizen seeking admission to the U.S. as a non-immigrant (including a TN visa applicant) is an intending immigrant. That is, every foreign citizen is presumed to be entering the U.S. for the purpose of remaining in the country permanently. To avoid this presumption and gain admission to the U.S., the foreign citizen must prove that he/she is a bona fide non-immigrant.
- If an individual applies for TN visa status at the U.S. port-of-entry and cannot prove that he/she meets the main requirements (e.g. applicable job, appropriate credentials, and satisfaction of the temporary entry requirements) for TN visa status, then the CBP officer will deny the individual's application under INA 212(a)(7)(A) as an immigrant without a valid immigrant visa.
- An individual may be denied a TN at the border not only if his/her job or credentials do not meet the requirements for a TN, but also on account of activities occurring during past visits to the U.S. Individuals who CBP believes violated the terms of a prior visa, e.g. by working without authorization, remaining in the U.S. after their employment end date while on an employment-based visa, or remaining in the U.S. after the expiration of a prior visa, may be denied TN status under INA 212(a)(7)(A). Such activities generally suggest to CBP that the applicant may not meet the temporary entry requirements for a TN.
- In some instances, the USCBP officer will only provide a verbal denial of the application. In other instances, more often in egregious cases, the officer will issue documentation explaining the basis of the denial. This may include a NAFTA TN Eligibility Check List; Form I-275, Withdrawal of Application for Admission (more on this below); and/or a Form I-877, Record of Sworn Statement.
Other Grounds of Inadmissibility Under INA 212 (a)
- An individual may also be denied a TN at the border if he/she is subject to one of the various grounds of inadmissibility under INA 212 (a).
- Individuals may be considered inadmissible to the U.S. based on health-related issues; criminal issues; security issues / terrorism related grounds; making false statements in any immigration application; for accumulating "unlawful presence"; and for other reasons.
- An individual found to be inadmissible to the U.S. may be placed into immigration court proceedings under INA 240 where they are given the opportunity to defend the allegation before an Immigration Judge.
Alternatively, for less egregious cases, USCBP may simply deny the individual entry to the U.S., and allow the person to withdraw his/her application for admission (see below).
- In some instances, an individual may be able to obtain a waiver in order to enter the U.S. under TN visa status despite being subject to a ground of inadmissibility under INA 212 (a). See 9 FAM 40.6 EXHIBIT I.
Expedited Removal Under INA 235 (b)
- A denial of a TN application can result not only in the loss of a job opportunity and the delay of subsequent travel (more below), it can also lead to severe immigration penalties.
- If a USCBP officer believes an individual made a fraudulent statement during a prior TN visa application, or when filing a new TN visa application, the officer can charge the applicant with fraud and deny his/her entry to the U.S. under INA 212 (a) (6) (C).
- In this scenario, the officer may order the expedited removal of the individual without referring the matter to a U.S. immigration judge (unless the individual indicates an intention to apply for asylum). INA § 235 (b) (1) (A) (i).
- Individuals who have been expeditiously removed are barred from returning to the U.S. for 5 years. INA § 212 (a) (9) (i).
- Individuals who are charged with fraud/misrepresentation under INA § 212 (a) (6) will also face a life-time bar to the U.S. unless they file for and obtain a waiver. 9 FAM 40.63 N1.3.
- The prospect of expedited removal is not limited to solely instances of fraud. Under the law, a USCBP officer could expedite remove an individual if the officer believes that the individual is inadmissible to the U.S. under INA 212 (a) (7) for not establishing eligibility for TN status. In practice, USCBP generally only expedite removes individuals under INA 212 (a) (7) in egregious cases, e.g. where the individual had extensive periods of unauthorized employment or unauthorized of stay in the U.S.
Withdrawal of Application for Admission
- When CBP believes an individual is not admissible to the U.S., the individual could be detained for a removal hearing before an immigration judge. IFM 17.2.
- Alternatively, an individual applying for admission to the U.S. may “in the discretion of the [immigration officer], be permitted to withdraw the application for admission and depart immediately from the United States.” INA § 235 (a) (4).
- Within the context of an application for TN status, the rules now only allow for the withdrawal of the application for admission, or the expedited removal process. IFM 15.5. The opportunity to have a TN application reviewed by an immigration judge no longer appears to be available.
- In the case of a withdrawal, CBP may merely verbally refuse entry, or prepare a formal statement of the refusal for the TN on Form I-275, Withdrawal of Application for Admission/Consular Notification, and Form I-877, Record of Sworn Statement in Administrative Proceedings.
- Individuals should be aware that they do not have a right to withdraw their TN application. The decision whether to allow a TN applicant to withdraw a TN application is solely within the discretion of the inspecting officer. IFM 17.2.
- CBP will consider the following factors in determining whether to permit a withdrawal of an application:
The seriousness of the immigration violation;
Previous findings of inadmissibility against the TN applicant;
Intent on the part of the TN applicant to violate the law;
Ability to easily overcome the ground of inadmissibility;
Age or poor health of the applicant; and
Other humanitarian or public interest considerations.
- If an officer believes an individual is inadmissible under INA §§ 212 (a) (6) (C) or (7) (A), “and the alien does not wish to withdraw his/her application for admission, the inspector should place the alien into an expedited removal proceeding.” IFM 15.5.
- Mexican citizens who apply for admission to the U.S. under TN status may have their TN visa physically cancelled if CBP denies the TN application and the applicant agrees to withdraw the application for admission. 22 C.F.R. 41.122 (h) (3).
Re-Applying For TN Visa Status
An individual who withdraws his/her application for admission is not considered formally removed. As result, the immigration laws do not prohibit an individual from reapplying for TN status despite previously withdrawing an application.
If there is a basis to overcome the reason for the denial, an individual may return to the border with additional information or documentation to address CBP's concerns, and may still be approved for TN status.
Individuals should be aware that a TN application denial may impact their subsequent attempts to enter the U.S. either with a TN application or as a visitor. Such attempts will likely be subject to more heightened scrutiny.
Revised Jan. 28, 2015