TN visas are sometimes erroneously perceived as simple and something one can DIY. But oftentimes, people fail to realize the consequence of misrepresentation during a TN interview or border crossing. Sometimes this can be intentional, but more often than not, in our practice we see people that simply lacked the knowledge of what was permissible and/ or did not know when to update the application or the consequences of an error.
A finding of misrepresentation or fraud can lead to a ban of 5 years or longer from the United States as well as a lifetime ban without a waiver for “knowingly or willingly misrepresenting material facts to obtain a TN visa”. Canadians and Mexican citizens are used to frequently crossing the border for work, business and pleasure. Such a finding can be devastating. And, the finding can be done without much oversight or room for appeal. Prevention is a much better route.
Section 212(a)(6)(c)(i) of the Immigration and Nationality Act says you are found to be inadmissible if you are, “an alien who, by fraud or wilfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act. Section 212(a)(9) of the Act, says you are prohibited from entering, attempting to enter, or being in the United States.
If a border officer suspects that you have willfully misrepresented or committed visa fraud, they have the power to expeditiously remove you from the United States. This can be done without a hearing in front of an immigration judge.
Expedited removal is allowed under the provisions of sections 235 and 237. This means an interview with a CBP officer may be your only opportunity to present information to the officer and the Department of Homeland Security to make a decision on your circumstances.
Below is an example of some of the type of questions you could be asked, under oath, in this situation:
- What previous visas to the US have you held?
- What TN category are you applying under?
- What is the actual job title at your company?
- Does your company use any other internal job titles?
- What are your day to day activities of the job?
- Who do you report to?
- Who reports to you?
- What is your salary?
- Is your salary in range with what the Bureau of Labour Statistics say your median salary should be?
- If someone else prepared your visa support letter - did you review the letter and check for its accuracy before submitting it to the NAFTA officer?
- If the letter is not accurate and you submitted it - Why would you submit an inaccurate letter?
- Why did you tell [fill in the blank] inaccuracies to the NAFTA officer?
- Oftentimes there will also be numerous questions regarding the findings on your car and search of any phones/ computers you have with you.
For this reason, and to avoid this situation, we highly recommend working with experienced legal counsel and ensuring that everything you submit to CBP is accurate and void of misrepresentations, innocent or not.
To get help on your TN visa, please schedule a strategy session here.