Poe

[Arthur Mo]

I just got emailed this.




Hi, this is Steve.

I had hoped i would never in my lifetime be in the desperate position i am now facing. All of you know me and most (if not all) also know my mother Freda.

On August 2nd 2008 my mother travelled to Canada to visit some longtime friends Mary-Beth and Flemming , they had invited her to their home because exactly one year ago my beloved Father passed away unexpectedly and they felt that it would be a nice break for her at this very difficult time. All was well until she arrived at the US Immigration Customs and Border Protection preclearance desk at Toronto airport prior to her return flight.

After presenting all of her correct paperwork to the 'Officer' she was given the WORST news she would want to hear....she was DENIED from returning back to her family and home her in Apopka, Florida. From what i understand the first 'Officer' that dealt with her was very uncaring and when she asked to sit down because she felt very faint (after the DENIAL) 'Officer' said No ,grab you bag and get out as i have other people to attend to, he also apparently told her not to come back until she had a valid Visa.

This is the reason she was refused re-entry back into the USA and we certainly cannot understand that because prior to her booking the flight we checked and double checked with the relevant Immigration rules/law that solely cover non-immigrant Visa holders. The law is very clear as it states that persons like our selves who are legal non-immigrants with valid Visas, Change of Status as approved by the USCIS and holders of valid I-94 documents can travel to the contiguous counties of Canada or Mexico for up to 30 days without special documentation. I even printed out a copy for her to take just in case..................when she did present it to the 'Officer' to help her position he refused to even look at it.

We believe that the reason she was denied was because the 'Officers' involved were not fully aware that such law existed or they simply could not be bothered to check.

She had with her ,her passport WITH a valid Visa, her I-797 change of status and a VALID I-94 ....in total all of the required documentation as per the law for travel to and return from Canada. She is NOT a criminal, NOT a terrorist and NOT a threat of the security of the USA yet why has she been treated so badly?



My mother is now stuck in Canada and has only 12 days left out of the 30 days allowed under the law for visiting, understandably she is now very upset ,emotional and is showing the early signs of depression, she also desperately needs her medication which is here in Florida. When i spoke to her yesterday she told me that the next time i see her would be when she was brought back in a casket ....................that really upset me and i cannot bear this to ever happen. We need her back here where she belongs with her family.



America proudly boasts that it is the 'land of the free' and that a loving family is very important to a successful life and yet here we are , British Citizens who according to the American Government are the closest and most loyal Allies being treated quite the opposite.

We came to America under the Treaty Investor program investing $$$$$$'s here , we own a company called 'Blind Design' that services the central Florida area, we support local and national US products and contribute to the american economy. We have a mortgage and always pay our taxes. We love this country and in our hearts we feel 'american'. We do not expect handouts and we just want to be treated with courtesy and respect.



I am pleading with you all from the bottom of my heart PLEASE PLEASE PLEASE put the word out and try and help me bring back my mother to her loving family...............................losing my father just a year ago broke my heart, i cannot not stand the thought of losing my Mother as well ...........and certainly NOT under these circumstances.



We have tried contacting all of the 'help line' numbers with out success, i have even tried the Director of pre-clearance CBP at Washington DC but no-one will answer or return the call. The ONLY person who has shown some interest in finding a solution to this problem is Congressman Tom Feeneys office (Republican).



Pleas can i ask you to e-mail him and offer your support. ( if you are not a republican then please please contact your local Democrat congressman or senator and ask that they get involved). It is election time and i am sure they WILL listen to your concerns about this matter because , espcially if you are an American and a registered VOTER.



The e-mail address of his assistant who i have been liaising with is Matthew at mailto:m.paull@mail.house.gov or you can phone him on 407-208-1106.



Of course if you know of anybody else then please speak to them or forward the contact details onto me.





Please help.....time is not on our side and my mother does not deserve to be in this position. I am very concerned for her health and sanity.







Steven Martin

mailto:martin538@embarqmail.com

[InnVic]

why would they deny her if she has a valid visa?

[DEE F]

I thought that as well,is this a real email:confused:


Dee x

[lorraine]

Oh my god how awful I will send it to everyone I know, I do know a really good attorney that got a friends family out of deportation area. I will send this on to them. So sorry for you.

[DEE F]

Just reread this again,it it reads that the lady has changed from a b2 to e2,if that is the case and she has been here for a year,then that would make the B visa invalid,as you are only supposed to stay for up to 6 months,I really feel for this lady,have been through the denial process with my own daughter and can imagine what you are going through.Maybe if you get in touch with someone like Carl Shusterman perhaps he can advice you.This is awful ,I really hope you can find a solution,good luck.

Dee x

[Carl]

If I read this right, she doesnt have a valid visa, she has a B visa and a E2 status, so the B visa is not valid and if it was, if she had been here more than 6 months she would be a oversaty without arranging an extension with USCIS. It is a terrible situation. I have not heard of this arrangement of 30 days to go to Canada witha I-94.

Could she come in on a Visa Waiver?

Someone needs to help her but I dont know who can.


Carl.

[lorraine]

Steven could you fly your mum to uk and bring her back in that way. If her visa is valid (not just I94) then they should allow her back in. (God knows what is going on where she is) but I have not heard of anyone with a valid visa being turned away when they come in from the UK.

I will pass the details onto the attorney on Monday. Obviously it is going to cost money trying to sort out attorney etc. If you could get her to uk and back in that way it would be less expensive in the long run. Once she is back then kick up merry hell.

[peter gold]

Lorraine is correct if she has an E-2 valid visa status This means she is not landlocked and can travel.
I suspect she was here on B vistor visa which had expired hence the refusal of readmission.
If she is not in any valid visa status E-2 or B then she should attempt entry under the visa waiver which runs a risk of refusal unless she stays out of the Us for at least three months as they will claim she is living here.

[chris]

Paperwork irregularities aside, it is another example of the appalling treatment by POE staff. As a British subject abroad, who is in trouble, she needs the help of a) family and b) the British Embassy. I would suggest to Steve first of all that cost aside, it might be a good idea if she had her son by her side to help her as well ensuring that she has her medication. If Steve's visa is E2 and valid then he should have no trouble going out and coming back in. If that can't be arranged I would suggest that perhaps Dean at the Orlando Consulate is contacted to see what he recommends.
However, having read and re-read the posting here is what I think the situation is:
Steve is the Treaty investor and he has the valid E2 visa.
His mother has come in a visa (presumably a B visitor) and changed status to E2 whilst in the USA. However when she leaves the USA, she leaves that status behind and the only status she would have to re-enter is what is on the valid visa in her passport which is presumably a B visa. Where I think the whole thing has been screwed up is highlighting the change of status to POE, when in actual fact if she had simply shown her travel visa status and visiting I think she would have been let back in, and then she would have been able to change status once again.
Like others on here, I have never heard of this law allowing travel to Canada or Mexico, and Steve does not tell us the relevant statue that he gleaned it from.
It is possibly one of those cases where honesty has got you nowhere and only made matters worse.

[Arthur Mo]

Paperwork irregularities aside, it is another example of the appalling treatment by POE staff. As a British subject abroad, who is in trouble, she needs the help of a) family and b) the British Embassy. I would suggest to Steve first of all that cost aside, it might be a good idea if she had her son by her side to help her as well ensuring that she has her medication. If Steve's visa is E2 and valid then he should have no trouble going out and coming back in. If that can't be arranged I would suggest that perhaps Dean at the Orlando Consulate is contacted to see what he recommends.
However, having read and re-read the posting here is what I think the situation is:
Steve is the Treaty investor and he has the valid E2 visa.
His mother has come in a visa (presumably a B visitor) and changed status to E2 whilst in the USA. However when she leaves the USA, she leaves that status behind and the only status she would have to re-enter is what is on the valid visa in her passport which is presumably a B visa. Where I think the whole thing has been screwed up is highlighting the change of status to POE, when in actual fact if she had simply shown her travel visa status and visiting I think she would have been let back in, and then she would have been able to change status once again.
Like others on here, I have never heard of this law allowing travel to Canada or Mexico, and Steve does not tell us the relevant statue that he gleaned it from.
It is possibly one of those cases where honesty has got you nowhere and only made matters worse.

Here is the regulation.

http://travel.state.gov/visa/laws/telegrams/telegrams_1441.html

[peter gold]

If her I- 94 was valid she was in status and should not have been refused admittance accoding to the regulations.
She should try again at a different POE and maybe the son should fly to be with her

[chris]

Arthur,
Thanks for that link. The information on the link is of a telegram issued way back in 2002. However, the FAM section it relates to is 9 FAM 41.121 and I have just been looking it up in the Electronic Reading Room of the US Gov. It does indeed allow automatic revalidation of an expired visa up to the day of application for re-admission to the USA. But one little fly in the ointment is that according to Steve, his mothers visa is valid. Therefore this regulation does not apply in this instance. Note I am just an ordinary laymen who tries to read very badly written US regulations. PG as a Legal Eagle make speak legalese better than most of us and is likely to understand it more, but that was the conclusion I drew.
All that said, it should be a case of (as I understand it);
if her visa is valid, she should get in no problems, or
if her visa is expired and has the valid I-94 the regulation apples and she gets back in.
I think Steve needs to have the current FAM rules to hand, but remember it is USCIS NOT State Dept who has final say on whether you are allowed in. A Visa does not guarantee entry - never has.
I sincerely hope he prevails.

[InnVic]

I think the problem is its such a wooley explanaition. But then there is little in the FAM that is clear and concise. I had heard that it was "technically" possible to leave the US for Canada without a visa if your I-94 was valid but I would never have dared risk it.

[Carl]

I think the problem is its such a wooley explanaition. But then there is little in the FAM that is clear and concise. I had heard that it was "technically" possible to leave the US for Canada without a visa if your I-94 was valid but I would never have dared risk it.

No I must admit, I dont think I would have tried it either.

Carl.

[Susie]

This is just another example of why we must have a compassionate visa, this poor lady,

I am really not sure what her best course of action is. Maybe she could try to come in on the VWP or apply for humanitarian parole

I will make a few calls early next week, but is does not seem hopeful I am afraid to say


What reason did they give for the denial and did they give her any paperwork?

You could try calling the ombudsman's office they maybe able to help

[Carol]

THE IMPACT OF INTERNATIONAL TRAVEL ON
PENDING IMMIGRATION PETITIONS AND APPLICATIONS


I. Departure from the United States while Extension of Status Petition is Pending

If you are the beneficiary of a petition to extend nonimmigrant status (for example, H, L or TN status) you may depart the U.S. while the extension of status petition is pending and you may re-enter the U.S. in the same status, provided that the initial petition is still valid and you possess a valid nonimmigrant visa in your passport (unless visa exempt as a Canadian national). However, under certain circumstances, departure from the US while an extension petition is pending with the United States Citizenship & Immigration Services (USCIS), or after it has been approved, may have the effect of negating the extension portion of the petition. (Note: the extension petition requests two things in the same petition: (1) continued classification as a nonimmigrant; and (2) extension of the nonimmigrant’s stay in the U.S.)

Example: You are in the U.S. in H-1B status working for Company A and your first H-1B approval notice with that company will expire on August 1, 2001. Your H-1B visa will also expire on August 1, 2001. Company A files a petition to extend your H-1B status on July 1, 2001, requesting validity from August 2, 2001 to August 1, 2004. While the petition is pending, you desire to travel internationally.

Travel and Re-entry: You may depart the U.S. after July 1, 2001, and re-enter in H-1B status until August 1, 2001 on your first H-1B approval notice, without impact on your extension petition that is still pending. After August 1, 2001, you would need the Form I-797 approval notice for the extension petition and a valid H-1B visa to re-enter the U.S. in H-1B status.

Example: You are in the U.S. in H-1B status working for Company A and your first H-1B approval notice with that company will expire on August 1, 2001. Your H-1B visa will also expire on August 1, 2001. Company A files a petition to extend your H-1B status on July 1, 2001, requesting validity from August 2, 2001 to August 1, 2004. On July 15, while you are out of the U.S., the INS approves your extension petition. You desire to return on July 25, prior to the effective date of the extension petition.

Travel and Re-entry: If you re-enter in H-1B status on July 25, 2001, the “last action” of the INS would be your new admission, valid only until August 1. (You cannot enter the U.S. under the extension petition, since it is not valid until August 2, 2001). Your employer would have to file a new extension petition after you return to the U.S. and before August 2, 2001, since the extension portion of the petition filed on July 1 has been effectively negated when you obtained a new I-94 valid only until August 1, 2001. In the alternative, you could depart the U.S. by August 1, 2001 and apply for a new H-1B visa abroad, and reenter the U.S. on August 2, 2001 or later, relying on the approved H-1B petition but obtaining a new I-94 card at the border that is valid until August 1, 2004.

II. Departure from the United States while Change of Status Petition is Pending

Departure from the U.S. during the pendency of a petition for change of status constitutes abandonment of the change of status request in the petition. (Note: the change of status petition requests two things in the same petition: (1) classification as a nonimmigrant; and (2) change of status from one nonimmigrant classification to another, for example, from L-1 to H-1B. Only the change of status request in the petition is abandoned by departure.)

If you are the beneficiary of a change of status petition and you depart the U.S. at any time while the petition is pending, the change of status portion of the petition is deemed abandoned. Upon approval of the petition, you will be required to depart the U.S., obtain a visa in the new nonimmigrant category (unless you are a Canadian citizen), and re-enter the U.S. to activate your new nonimmigrant status.

Example: You are in the U.S. in L-1 status working for Company A. Your L-1 petition and L-1 visa are valid until October 1, 2001. On June 1, 2001, Company A files a petition to change your status from L-1 to H-1B. On August 1, 2001, you depart the U.S., and you re-enter in L-1 status on August 15, 2001. Company A’s H-1B petition on your behalf is approved on September 1, 2001.

Travel and Re-entry: Although you may re-enter the U.S. in L-1 status on August 15, 2001, your departure from the U.S. on August 1, 2001 will cause the change of status request in the petition to H-1B to be abandoned. Upon approval of the new petition on September 1, 2001, you will be required to depart the U.S., obtain an H visa abroad, and re-enter the U.S. using the H visa and Form I-797 approval notice (for H classification) to activate your H-1B status in the U.S.

Example: You are in the U.S. in L-1 status working for Company A. Your L-1 petition and L-1 visa are valid until August 1, 2001. On June 1, 2001, Company A files a petition to change your status from L-1 status to H-1B. On August 15, 2001, you depart the U.S. Company A’s petition is approved on September 1, 2001.

Travel and Re-entry: Your departure on August 15, 2001 will cause the change of status request in the H petition to be abandoned. Moreover, you may not re-enter the U.S. in L-1 status after August 1, 2001 because the L-1 petition validity period will have expired. You must wait until the new petition is approved on September 1, 2001 and apply for an H visa. Upon issuance of your H visa, you may re-enter the U.S. in H-1B status.

III. Departure from United States when H-1B Portability (Transfer) Petition is Pending

If you are the beneficiary of an H-1B change of employer petition, and you have “ported” to your new employer pursuant to the American Competitiveness in the 21st Century Act (“AC21”), you may depart the U.S. and re-enter only if certain criteria are met. First, you must have a valid H-1B visa in your passport (unless visa exempt as a Canadian national.) Second, you must have proof of previous H-1B status (i.e., Form I-797A or B approval notice, I-94 card, or H-1B visa) and the original petition must still be valid. Third, you must present a dated INS filing receipt to show that the new H-1B petition was filed while you were still in the U.S. in valid nonimmigrant status. (In addition, we recommend that you travel with a copy of the INS memo dated January 29, 2001 regarding portability petitions. We provide this memo to our clients after the filing of the portability petition.) Fourth, you must be otherwise eligible as a “portable” H-1B nonimmigrant under AC21. AC21 bars an H-1B nonimmigrant from portability if the person has worked without authorization since his or her last entry to the U.S. that preceded the filing of the H-1B change of employer petition.

Important: If you travel during the pendency of your H-1B transfer petition, and your H-1B visa in your passport has expired, you may not be able to obtain a new H-1B visa from a U.S. consulate abroad until the H-1B transfer petition is approved. This means you will not be permitted to re-enter the United States until the H-1B transfer petition is approved and the new visa issued. The Department of State has advised that if your prior H-1B petition was revoked or withdrawn (e.g., by request of the prior employer), the consulate will not issue you a new H-1B visa until the new H-1B transfer petition is approved. Because most employees will not know whether their previous employer withdrew the prior H-1B petition, we strongly advise that you do not travel unless you have a valid H visa in your passport.

Example: You were admitted to the U.S. in H-1B status to work for Company A. The H-1B petition for Company A is valid until September 1, 2001. On July 1, 2001, Company B files a petition to change your H-1B employer to Company B. On July 15, 2001, INS issues a receipt for Company B’s petition, and you commence employment with Company B. (Note that some companies are opting to bring new hires on board as soon as the transfer petition is filed, without waiting for the INS receipt. However, we strongly recommend that such employees do not leave the U.S. until the USCIS filing receipt is received.) On August 1, 2001, you depart the U.S. You return to the U.S. on August 15, 2001. Company B’s petition is pending, but not yet approved.

Travel and Re-entry: You are admissible to the U.S. on August 15, 2001 to resume work with Company B provided that you have the following: (1) valid H-1B visa in your passport (even if this visa is annotated to reflect employment with Company A); (2) a copy of the Form I-797A or B approval notice for Company A’s petition or your previously issued I-94 document showing H-1B status valid until September 1, 2001; and, (3) a copy of the USCIS filing receipt for Company B’s petition, dated July 15, 2001.

Scenario 5: Same facts as Scenario 4, except you do not return to the U.S. until September 15, 2001.

Travel and Re-entry: You may NOT re-enter the U.S. on September 15, 2001 to resume work with Company B (or Company A) because the initial H-1B petition, filed by Company A, expired on September 1, 2001, and the new petition, filed by Company B, is pending, but not yet approved. You must remain abroad until Company B’s petition is approved. If you do not have a valid H-1B visa in your passport, upon approval of Company B’s petition, you must apply for an H-1B visa. You may then utilize your H-1B visa and Company B’s Form I-797A or B approval notice to be re-admitted to the U.S. in H-1B status.

Please note: final regulations for the portability provisions of AC21 have not yet been issued. The foregoing is based on USCIS and DOS guidance, but these requirements are subject to change upon issuance of final regulations.

IV. Visa Validity and Admission Generally

If you are seeking admission to the U.S. based on an approved nonimmigrant petition, you must have a valid visa (of the appropriate type) in your passport to be admitted to the U.S. (unless visa exempt as a Canadian national.) Generally, the validity date of the visa in your passport will be the same as the validity date of the approved petition, but this is not always the case. For example, if you extend your status in the U.S., your petition validity period will be extended, but it is likely that your visa in your passport, issued for the initial petition, will have expired. The validity of the visa in your passport is not automatically extended with the nonimmigrant petition. In this case, you will require a new visa to re-enter the U.S. *

Scenario 6: On April 1, 1997, the USCIS approves an H-1B petition on your behalf, valid until March 31, 2000. You apply for and obtain an H-1B visa valid until March 31, 2000, and you are admitted to the U.S. in H-1B status valid until March 31, 2000.

While in the U.S., the USCIS approves an H-1B extension petition for you, and the extension petition is valid until March 31, 2003. On April 1, 2001, you depart the U.S. and on May 15, 2001, you attempt to return with your new Form I-797A or B approval notice valid until March 31, 2003.

Travel and Re-entry: In order to re-enter the U.S. pursuant to the approved extension petition, you will need the extension petition Form I-797A or B approval notice and a new H-1B visa, valid on the date you re-enter. You may not utilize your old H visa because it expired on March 31, 2000.*

Another possibility is that you were initially admitted in one status, and subsequently changed your status to another nonimmigrant classification. To be admitted to the U.S. in the new status, you will be required to obtain an appropriate visa.

Scenario 7: On April 1, 2000, the USCIS approved an L-1 petition on your behalf, valid until March 31, 2003. You apply for and obtain an L-1 visa valid until March 31, 2003, and you are admitted to the U.S. in L-1 status valid until March 31, 2003.

On January 1, 2001, a petition is filed to change your status from L-1 to H-1B. It is approved on April 1, 2001 and it is valid until March 31, 2004. On April 15, 2001, you depart the U.S. and on May 16, 2001, you attempt to return to the U.S. with your change of status Form I-797A or B approval notice valid until March 31, 2004.

Travel and Re-entry: Although you have an approval notice for a petition valid until March 31, 2004, you may not re-enter the U.S. in H-1B status without a valid H-1B visa in your passport.*

If you have any questions regarding the validity of your petition, visa, and/or how to obtain a new visa, please contact us prior to your departure from the U.S. so that we can take the appropriate steps and provide you with appropriate instructions to facilitate your re-entry to the U.S.

V. Travel During Green Card Process

The green card process is typically three-phased. First, a labor certification application is filed with Department of Labor. Second, a petition for permanent resident classification (I-140) is filed with USCIS. Third, an application for an immigrant visa (“green card”) is filed with either (a) the U.S. Consulate abroad through “consular processing”; or (b) the USCIS in the U.S. through permanent residency, or “adjustment of status.”

Generally, if you are in H, L, E, or O status (“dual intent” visas), you may continue to travel during the green card process when consular processing, provided that you remain employed only by the H or L sponsor, and you possess a valid corresponding visa while the consular processing applications are pending. If an extension or change of status petition is filed during this period, you should follow the rules outlined above.

If you are in TN, J, B, or another nonimmigrant status and are consular processing, please check with our office before traveling.

Other travel restrictions arise if you apply for adjustment of status in the U.S.

1. Individuals in H-1B, H-4, L-1 or L-2 status

If you hold H or L status, and you are applying for adjustment of status through an approved I-140 visa petition, you may use your Form I-797A or B approval notice and valid visa in your passport to leave and return to the U.S. after filing of the adjustment application. The main advantage to this is that you can avoid an interruption in your ability to travel for 2-3 months after the adjustment application is filed (see “2.” below). However, if you choose to rely on the H or L approval notice and visa for the duration of the adjustment application, you must keep your H or L status current. (Allow at least 12 months to receive the final approval of the green card application.) If necessary, we may file an extension of the underlying H or L status.

For your protection, we also recommend filing for a travel document (“advance parole”) with the adjustment of status application. Having advance parole will ensure your ability to travel if a change in your employer’s structure (for example, a merger) requires that an amendment be filed to the H-1B or L-1 petition.

If you are presently in H-1B or L-1 status and you maintain that status, you will also be able to continue working for your present H-1B/L-1 employer after the adjustment of status application is filed. However, we generally recommend that you also apply for a work permit or Employment Authorization Document (“EAD”), which will be issued in approximately 90-180 days after the filing of the adjustment of status application. The EAD card is not employer specific, but it must be renewed each year. (Please note: if you utilize the EAD card to work for any other employer other than your H or L employer, you will invalidate the H or L visa for purposes of work and travel.) If you have a spouse or child who also desires work authorization while the adjustment of status application is pending, they can also apply for EAD cards. (Please note: if your spouse or child does work under the EAD card, then your spouse or child must also have advance parole to travel while the adjustment of status application is pending (see “2” below), as their underlying H-4 or L-2 status and visa will be invalidated by having accepted employment.)

2. Individuals who are not in H or L status

If you are not in any of the above H or L statuses, as soon as your adjustment application is filed, you cannot leave the country without receiving an approved travel document (“advance parole”). USCIS processing time for the advance parole document usually takes 2-3 months for employment-based cases, and 2 weeks to 3 months for family-based cases. Unless you are in H or L status, you will be deemed to have abandoned your permanent residence application if you leave the U.S. without this advance permission at any time during the processing of your application. (Allow 12 months to receive the final approval of your green card application if it is based on employment, and 1-2 years if based on a family relationship.)

We automatically file an advance parole application for each person who is applying for adjustment of status to allow travel outside the U.S. Please note that the advance parole document does not replace your foreign passport; you must still keep your passport current.

If you are currently in TN, J, or B nonimmigrant status, and are applying for adjustment of status, please check with our office before traveling.

[davidmartin_uk]

Surely she does not have an up to date travel document?? Another example of someone given very bad advice changing from B to E. Any of you on the forum who are landlocked, would you risk going to Canada or Mexico??? No you wouldn't!!

Unless she can get a politician involved I think she has had it!!

Dave

[chris]

David,
I think one of the problems that we all here is that the email from Steve does not indicate what visa his mother has. We are all assuming that she came in on a B visa and changed status to E2, presumably she bought into Steve's business. We are assuming lots of things and we all know what ASSUME means.
The telegram information that Steve based his decision to let her go does appear to be qualified by the FAM Guidelines. But as I have said before, the FAM guidelines are for the use by the State Dept and are based on the Immigration legislation, which I think is INA. The USCIS also work to the Immigration,legislation, but I doubt whether they will work to FAM Guidelines and that's where you have the problem. The two departments never have worked together and you have the classic example of that with Steve's mother. The left hand does not know what the right hand is doing.
I believe Steve's main actions should be:
1) Get with his mother,
2) Get with an Attorney,
3) Get the British Embassy involved in Canada on behalf of his mother.

[InnVic]

okay hypothetical question related to the above information. So your a "landlocked" E2 status holder with valid I-94. Whats to stop you taking a trip to Canada and flying from say Toronto to London to visit family (or to have a E2 interview when your not certain you'd be approved) then back to Canada and driving south across the border from the contigous territory. If I read this correctly and you do not hand I-94 in or stay out of the US for more than 30 days then this should be possible. What am I missing?

[Carol]

David,
I think one of the problems that we all here is that the email from Steve does not indicate what visa his mother has. We are all assuming that she came in on a B visa and changed status to E2, presumably she bought into Steve's business. We are assuming lots of things and we all know what ASSUME means.
The telegram information that Steve based his decision to let her go does appear to be qualified by the FAM Guidelines. But as I have said before, the FAM guidelines are for the use by the State Dept and are based on the Immigration legislation, which I think is INA. The USCIS also work to the Immigration,legislation, but I doubt whether they will work to FAM Guidelines and that's where you have the problem. The two departments never have worked together and you have the classic example of that with Steve's mother. The left hand does not know what the right hand is doing.
I believe Steve's main actions should be:
1) Get with his mother,
2) Get with an Attorney,
3) Get the British Embassy involved in Canada on behalf of his mother.

Sorry to say this but British Embassy won't be able to intervein to get the mother back into the USA, they can not tell another country what to do, the most they will be able to do is help get her back to UK, if she is really stuck, the only ones that can put any presure on would be US Congress and even at that they can not tell USCIS what to do, I am afraid they are a law unto themselves
Good Luck, The post I put on earlier came of USCIS, regarding travel rules and visa's

[JulieC]

This is a proper email. Being in the same business as Steve I know him by repute, he also posts on another forum. Steve is definitely a change of status B 2 to E2 person so landlocked. I am guessing his mother is too. Her B2 visa will no longer be valid as she will have changed status so she doesnt have a visa, just a valid 1-94 as an E2 status holder. Now often they do not take your 1-94 when visiting continguous territory. I had never heard of the regulation that Steve points to to say that landlocked persons can visit contiguous territory without losing their visa status. If it is contained in a memorandum rather than enshrined in law, it may be possible that the port of entry officer is unsware of it. Problem is this is not going to be easy to get amended. The morale of the story is if you are landlocked do not leave the country under any circumstances. We were landlocked for 18 months and would not even have dared fly to Hawaii in case something happened to the plane. I also know of a young Chinese F1 student who was not allowed to board a cruise ship to Alaska as she didnt have a visa for Canada because the ship passed through Canadian waters even though she would not have gone ashore there. Any advice is too late now for this poor lady. I fear she will end up back in the UK and if she tries to get another B2 may be denied, I do know of one landlocked person who went home for a visit that this happened to, and she will only be allowed back on visa waiver.

[chris]

Here is the current copy of the FAM regs which this problem appears to revolve around. It is FAM 41.112 (d).

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 1 of 8
9 FAM 41.112
VALIDITY OF VISA
(CT:VISA-973; 06-12-2008)
(Office of Origin: CA/VO/L/R)
9 FAM 41.112 RELATED STATUTORY
PROVISIONS
(CT:VISA-973; 06-12-2008)
See INA 101(b)(5) (8 U.S.C. 1101(b)(5)), INA 212(d)(8) (8 U.S.C.
1182(d)(8)), INA 221(c) (8 U.S.C. 1201(c)), INA 222(g) (8 U.S.C. 1202(g)),
and INA 281 (8 U.S.C. 1351).
INA 101(b)(5)
b. As used in subchapters I and II of this chapter—
(1) The term “child” means an unmarried person under twenty-one
years of age who is—
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the
child had not reached the age of eighteen years at the time
the marriage creating the status of stepchild occurred;
(C) a child legitimated under the law of the child’s residence or
domicile, or under the law of the father’s residence or
domicile, whether in or outside the United States, if such
legitimation takes place before the child reaches the age of
eighteen years and the child is in the legal custody of the
legitimating parent or parents at the time of such
legitimation;
(D) a child born out of wedlock, by, through whom, or on whose
behalf a status, privilege, or benefit is sought by virtue of the
relationship of the child to its natural mother or to its natural
father if the father has or had a bona fide parent-child
relationship with the person;
(E) (i) a child adopted while under the age of sixteen years
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 2 of 8
if the
child has been in the legal custody of, and has resided
with, the adopting parent or parents for at least two years
or if the child has been battered or subject to extreme
cruelty by the adopting parent or by a family member of
the adopting parent residing in the same household:
Provided, That no natural parent of any such adopted child
shall thereafter, by virtue of such parentage, be accorded
any right, privilege, or status under this chapter; or
(ii) subject to the same proviso as in clause (i), a child who:
(I) is a natural sibling of a child described in clause (i)
or subparagraph (F)(i);
(II) was adopted by the adoptive parent or parents of the
sibling described in such clause or subparagraph;
and
(III) is otherwise described in clause (i), except that the
child was adopted while under the age of 18 years;
or
(F) (i) a child, under the age of sixteen at the time a petition is
filed in his behalf to accord a classification as an immediate
relative under section 201 (b) of this title, who is an
orphan because of the death or disappearance of,
abandonment or desertion by, or separation or loss from,
both parents, or for whom the sole or surviving parent is
incapable of providing the proper care and has in writing
irrevocably released the child for emigration and adoption;
who has been adopted abroad by a United States citizen
and spouse jointly, or by an unmarried United States
citizen at least twenty-five years of age, who personally
saw and observed the child prior to or during the adoption
proceedings; or who is coming to the United States for
adoption by a United States citizen and spouse jointly, or
by an unmarried United States citizen at least twenty-five
years of age, who have or has complied with the
preadoption requirements, if any, of the child’s proposed
residence; Provided, That the Attorney General is satisfied
that proper care will be furnished the child if admitted to
the United States: Provided further, That no natural parent
or prior adoptive parent of any such child shall thereafter,
by virtue of such parentage, be accorded any right,
privilege, or status under this chapter; or
(ii) subject to the same provisos as in clause (i), a child who:
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 3 of 8
(I) is a natural sibling of a child described in clause (i)
or subparagraph (E)(i);
(II) has been adopted abroad, or is coming to the United
States for adoption, by the adoptive parent (or
prospective adoptive parent) or parents of the sibling
described in such clause or subparagraph; and
(III) is otherwise described in clause (i), except that the
child is under the age of 18 at the time a petition is
filed in his or her behalf to accord a classification as
an immediate relative under section 201(b) of this
title.
(2) The terms “parent”, “father”, or “mother” mean a parent, father, or
mother only where the relationship exists by reason of any of the
circumstances set forth in subdivision (1) of this subsection, except
that, for purposes of paragraph (1)(F) (other than the second
proviso therein) in the case of a child born out of wedlock described
in paragraph (1)(D) (and not described in paragraph (1)(C)), the
term “parent” does not include the natural father of the child if the
father has disappeared or abandoned or deserted the child or if the
father has in writing irrevocably released the child for emigration
and adoption.
(3) The term “person” means an individual or an organization.
(4) The term “immigration judge” means an attorney whom the
Attorney General appoints as an administrative judge within the
Executive Office for Immigration Review, qualified to conduct
specified classes of proceedings, including a hearing under section
240 of this title. An immigration judge shall be subject to such
supervision and shall perform such duties as the Attorney General
shall prescribe, but shall not be employed by the Immigration and
Naturalization Service.
(5) The term “adjacent islands” includes Saint Pierre, Miquelon, Cuba,
the Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados,
Jamaica, the Windward and Leeward Islands, Trinidad, Martinique,
and other British, French, and Netherlands territory or possessions
in or bordering on the Caribbean Sea.
INA 212(d)(8)
d. Temporary admission of nonimmigrants
(8) Upon a basis of reciprocity accredited officials of foreign
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 4 of 8
governments, their immediate families, attendants, servants, and
personal employees may be admitted in immediate and continuous
transit through the United States without regard to the provisions of
this section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of
subsection (a) of this section.
(iii) Guam visa waiver.-For provision authorizing waiver of
clause (i) in the case of visitors to Guam, see subsection
(l).
(iv) VISA WAIVER 11a/ PROGRAM.-For authority to waive the
requirement of clause (i) under a 11a/ program, see
section 217 .
[Amended by sec. 699L Pub. L. 110-161, 121 Stat. 2373; 2007]
INA 221(c)
c. An immigrant visa shall be valid for such period, not exceeding six
months, as shall be by regulations prescribed, except that any visa issued
to a child lawfully adopted by a United States citizen and spouse while
such citizen is serving abroad in the United States Armed Forces, or is
employed abroad by the United States Government, or is temporarily
abroad on business, shall be valid until such time, for a period not to
exceed three years, as the adoptive citizen parent returns to the United
States in due course of his service, employment, or business. A
nonimmigrant visa shall be valid for such periods as shall be by
regulations prescribed. In prescribing the period of validity of a
nonimmigrant visa in the case of nationals of any foreign country who are
eligible for such visas, the Secretary of State shall, insofar as practicable,
accord to such nationals the same treatment upon a reciprocal basis as
such foreign country accords to nationals of the United States who are
within a similar class; except that in the case of aliens who are nationals
of a foreign country and who either are granted refugee status and firmly
resettled in another foreign country or are granted permanent residence
and residing in another foreign country, the Secretary of State may
prescribe the period of validity of such a visa based upon the treatment
granted by that other foreign country to alien refugees and permanent
residents, respectively, in the United States. An immigrant visa may be
replaced under the original number during the fiscal year in which the
original visa was issued for an immigrant who establishes to the
satisfaction of the consular officer that he was unable to use the original
immigrant visa during the period of its validity because of reasons beyond
his control and for which he was not responsible: Provided, That the
immigrant is found by the consular officer to be eligible for an immigrant
visa and the immigrant pays again the statutory fees for an application
and an immigrant visa.
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 5 of 8
INA 222(g)
(g) (1) In the case of an alien who has been admitted on the basis of a
nonimmigrant visa and remained in the United States beyond the
period of stay authorized by the Attorney General, such visa shall
be void beginning after the conclusion of such period of stay.
(2) An alien described in paragraph (1) shall be ineligible to be
readmitted to the United States as a nonimmigrant, except-
(A) on the basis of a visa (other than the visa described in
paragraph (1) issued in a consular office located in the country
of the alien's nationality (or, if there is no office in such country,
in such other consular office as the Secretary of State shall
specify); or
(B) where extraordinary circumstances are found by the Secretary of
State to exist.
INA 281
The fees for the furnishing and verification of applications for visas by
nonimmigrants of each foreign country and for the issuance of visas to
nonimmigrants of each foreign country shall be prescribed by the Secretary
of State, if practicable, in amounts corresponding to the total of all visa,
entry, residence, or other similar fees, taxes, or charges assessed or levied
against nationals of the United States by the foreign countries of which such
nonimmigrants are nationals or stateless residents: Provided, That
nonimmigrant visas issued to aliens coming to the United States in transit to
and from the headquarters district of the United Nations in accordance with
the provisions of the Headquarters Agreement shall be gratis. 1/ Subject to
such criteria as the Secretary of State may prescribe, including the duration
of stay of the alien and the financial burden upon the charitable
organization, the Secretary of State shall waive or reduce the fee for
application and issuance of a nonimmigrant visa for any alien coming to the
United States primarily for, or in activities related to, a charitable purpose
involving health or nursing care, the provision of food or housing, job
training, or any other similar direct service or assistance to poor or
otherwise needy individuals in the United States.
9 FAM 41.112 RELATED STATUTORY
PROVISIONS
(CT:VISA-973; 06-12-2008)
See 22 CFR 41.112
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 6 of 8
41.112 Validity of visa.
(a) Significance of period of validity of visa. The period of validity of a
nonimmigrant visa is the period during which the alien may use it in
making application for admission. The period of visa validity has no
relation to the period of time the immigration authorities at a port of
entry may authorize the alien to stay in the United States.
(b) Validity of visa and number of applications for admission.
(1) Except as provided in paragraphs (c) and (d) of this section, a
nonimmigrant visa shall have the validity prescribed in schedules
provided to consular officers by the Department, reflecting insofar
as practicable the reciprocal treatment accorded U.S. nationals,
U.S. permanent residents, or aliens granted refugee status in the
U.S. by the government of the country of which the alien is a
national, permanent resident, refugee or stateless resident.
(2) Notwithstanding paragraph (b)(1) of this section, United States
nonimmigrant visas shall have a maximum validity period of 10
years.
(3) An unexpired visa is valid for application for admission even if the
passport in which the visa is stamped has expired, provided the
alien is also in possession of a valid passport issued by the
authorities of the country of which the alien is a national.
(c) Limitation on validity. If warranted in an individual case, a consular
officer may issue a nonimmigrant visa for:
(1) A period of validity that is less than that prescribed on a basis of
reciprocity,
(2) A number of applications for admission within the period of the
validity of the visa that is less than that prescribed on a basis of
reciprocity,
(3) Application for admission at a specified port or at specified ports of
entry, or
(4) Use on and after a given date subsequent to the date of issuance.
(d) Automatic extension of validity at ports of entry.
(1) Provided that the requirements set out in paragraph (d)(2) of this
section are fully met, the following provisions apply to
nonimmigrant aliens seeking readmission at ports of entry:
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 7 of 8
(i) The validity of an expired nonimmigrant visa issued under
INA 101(a)(15) may be considered to be automatically
extended to the date of application for readmission; and
(ii) In cases where the original nonimmigrant classification of
an alien has been changed by DHS to another
nonimmigrant classification, the validity of an expired or
unexpired nonimmigrant visa may be considered to be
automatically extended to the date of application for
readmission, and the visa may be converted as necessary
to that changed classification.
(2) The provisions in paragraph (d)(1) of this section are applicable
only in the case of a nonimmigrant alien who:
(i) Is in possession of a Form I–94, Arrival-Departure Record,
endorsed by DHS to show an unexpired period of initial
admission or extension of stay, or, in the case of a
qualified F or J student or exchange visitor or the
accompanying spouse or child of such an alien, is in
possession of a current Form I–20, Certificate of Eligibility
for Nonimmigrant Student Status, or Form IAP-66,
Certificate of Eligibility for Exchange Visitor Status, issued
by the school the student has been authorized to attend by
DHS, or by the sponsor of the exchange program in which
the alien has been authorized to participate by DHS, and
endorsed by the issuing school official or program sponsor
to indicate the period of initial admission or extension of
stay authorized by DHS;
(ii) Is applying for readmission after an absence not exceeding
30 days solely in contiguous territory, or, in the case of a
student or exchange visitor or accompanying spouse or
child meeting the stipulations of paragraph (d)(2)(i) of this
section, after an absence not exceeding 30 days in
contiguous territory or adjacent islands other than Cuba;
(iii) Has maintained and intends to resume nonimmigrant
status;
(iv) Is applying for readmission within the authorized period of
initial admission or extension of stay;
(v) Is in possession of a valid passport;
(vi) Does not require authorization for admission under INA
212(d)(3); and
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.112 Regs/Statutes Page 8 of 8
(vii) Has not applied for a new visa while abroad.
(3) The provisions in paragraphs (d)(1) and (d)(2) of this section shall
not apply to the nationals of countries identified as supporting
terrorism in the Department's annual report to Congress entitled
Patterns of Global Terrorism.
[52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988, as amended
at 55 FR 36028, Oct. 31, 1990; 62 FR 24332, May 5, 1997; 66 FR 38543,
July 25, 2001; 67 FR 10323, Mar. 7, 2002; 67 FR 66046, Oct. 30, 2002]

[Carl]

Chris.

Does the FAM rules apply to USCIS & BCIS as I notice it says State department at the top?

Carl.

[chris]

Carl,
Well spotted. That was the same point I raised on EV. We all know that State Dept and INS never spoke to one another and I don't think it has changed much now INS are USCIS. The FAM are guidelines produced by State Dept and based on the Immigration legislation, which I think is the references to INA (does that mean Immigration and Nationalities Act?). Both Depts should be working from the same INA song sheet, but as we all know, they don't. I think that is where Steve and his mother have come unstuck, in that the POE Official didn't know/didn't car about this information (presumably because it's FAM and USCIS work from another lyrics sheets, albeit to the same song).

[Bayfield]

Always dificult when you only get part of the story, but lets assume she entered on a B, changed staus to E and then left.

She would need an E Visa to enter, a B would not hack it, she clearly lives in the US, she is not a visitor.

The B Visa may well have been valid, but not appropriate for her intended purpose. She could apply for another B Visa, but chances of success would be low.

The only 30 days I know of is that for contigous countries you do not get your stay extended by leaving and re-entering, in this case if they had given her entry she would have had the balance of her I-94 left. There seem to be exceptions.