Immigration Corner | When can I reapply for a visa?

Good day Mrs Huntington:

My visitor visa was cancelled by Border Patrol while I was attempting to catch a connecting flight from Texas to Chicago about two years ago. Border Patrol believed I was entering the USA for work purposes, and because of this, I am banned from entering the USA for five years. My guardian who raised me from childhood to adulthood is very ill with stage four cancer in the USA, and I want to go visit her before it's too late.

Would I be able to reapply for a visitor visa even though the five years have not yet passed?

Your cooperation would be greatly appreciated.

V.V.

Dear VV:

You did not indicate why Border Patrol came to the conclusion that you were travelling to the United States to work. Sometimes they come to that conclusion because the person spent several months in the United States on their previous visit on a B1/B2 visa, or they searched the person or their phone and found documents or messages indicating the stated intent.

Working without authorisation as a non-immigrant voids your non-immigrant visa, makes you removable, and bars you from future entry into the United States. While the Border Patrol officer may tell you that you are banned for five years, the reality is that you will still be deemed inadmissible when you apply for a new visa five years after your removal. You will not automatically regain your visa.

If you choose to apply before the five years have expired, you may also have to apply for permission to reapply for admission to the United States - depending on which section of the Immigration and Nationality Act you were removed. This is a technicality that, if not complied with, can lead to a permanent bar from the United States. In both cases, you would have to apply for a non-immigrant Waiver because the removal for unauthorised working in the United States would also make you inadmissible to the United States.

It is important that you work with an immigration lawyer in a case such as this because failure to comply with the necessary steps can lead to devastating, permanent results. Notwithstanding the overwhelming emotional reason why you want to return to the United States, the consular officer will weigh the reason(s) why you are inadmissible to the United States and what if danger, if any, you might pose to the national security of the country against the travel reasons.

Your case is very instructive to others that when you receive a non-immigrant US visa, it is to be treated cautiously as its revocation for whatever reason can lead to severe consequences. A visa is a privilege and not a right and is subjectively granted by the consular officer.

- Dahlia A. Walker-Huntington, Esq is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com