My TN Visa was Denied at the Border - Tips for Re-Applying

It is almost Noon and I am ready to go to lunch when I get a call from my client Joe. "Jacob, My TN visa was just denied, the Officer sent me back to Canada, what am I going to do? - I have my boss waiting for me in San Diego, HELP!!". Joe is a Management Consultant with 10 years of experience. He had 3 previous TN visas but got denied this time. What happened?

Many applications denied at the port of entry suffer in varying degrees from one or more of three common problems:

§ The support/employment letter was overwritten;
§ The application was underdocumented; or
§ The wrong classification was chosen.

Having said that, keep in mind that there are plenty of other reasons why a particular application was denied. For example, the nature of internal policies at the port, a misunderstanding of the application, or—as crazy as it sounds—the officer was just having a bad day. For these reasons, it is essential to find out why the Department of Homeland Security (DHS), Customs and Border Protection (CBP) officials believe the applicant was inadmissible for the NAFTA category requested. This may not be easy to do.

Consider the following strategies for reapplication after a denial:

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Reapply to the Same Port of Entry

Returning immediately to the officer who denied the application is the best strategy when you are sure that you understand why the application was denied and you have acquired the documents and authority to satisfy the concerns. The theory of the case is the same and is not the problem. You can sometimes call ahead to explain the additional documents/authority you have so that the adjudicator can focus on the issues immediately.

Go  Officer/Port Shopping

You can also present the rehabilitated application to a different officer at the same port of entry or a different officer at a different POE. As a matter of prudence, if there is any issue about the fundamental theory of the case (Is this applicant a manager? Is this B-1 doing too much on-site in the United States?), find the most experienced free trade officer (FTO) available and present the application to that person for adjudication. Do not be apologetic; the FTOs are supposed to have better judgment about NAFTA applications and usually expect to be asked to review applications that were not approved by line inspectors. Oddly, many inspectors seem to consider a B-1 easier to adjudicate than an L-1 or TN.

Once you return to the POE, you should be candid with the new officer that the case was previously refused. Although this type of disclosure used to be more of a judgment call, times have certainly changed. In this post-9/11 culture, government databases have improved, and cases are scrutinized much more carefully. No officer wants to be credited with making a serious mistake that could cause a breach in homeland security by easily approving an application that was already denied. Saying no and instructing the applicant to go apply for an H-1B is the easy way out. However, if you are upfront about the previous decision and come prepared with documentation to rebut any concerns about approvability, you are not only helping that particular applicant, but you are solidifying your good reputation for future cases.

CONCLUSION

Even in this difficult confusing era, careful analysis, strategic thinking, and effective advocacy at the Port of Entry can turn a TN, L-1, or B-1 denial into an approval. Officer are human beings and you must remember that when you attend the interview. Come prepared, be nice and well documented and.....don't forget to pray a bit.