Lied to CBP About a Pending I-140? Why the DS-260 Case Is Already Dead

A TN professional called the Immigration Answer Show worried about the wrong thing. He had left a TN job, filed a B-1/B-2 to stay while he found a new employer, and been questioned three times at the border about that visitor application. He wanted to know how to survive those questions at his upcoming consular interview. The fact that actually ends the case came out almost in passing: a CBP officer asked whether he had a pending I-140, and he said no, while one was on file. Founding attorney Jim Hacking cut straight to it.

The setup is common and not itself fatal. TN status under 8 CFR § 214.6 does not allow immigrant intent, so a worker between jobs who files a visitor application to buy time is already on shaky ground. But a denied entry or a canceled B-1/B-2 is recoverable. A knowing false statement to a federal immigration officer is not. Telling CBP there was no pending I-140 when one existed is a misrepresentation of a material fact under INA § 212(a)(6)(C)(i) — 8 U.S.C. § 1182(a)(6)(C)(i). That finding makes a person permanently inadmissible.

That ground does not stay contained at the border. The Form DS-260 asks whether the applicant has ever given any U.S. government official information that was false, fraudulent, or misleading. A truthful “yes” invites a denial; a “no” repeats the lie under oath. Hacking’s read was that the case is gone either way.

The caller asked whether a FOIA on his three border encounters might help. It does not, because the government does not need his confession. The lie is provable from its own records: the I-140 receipt sits in the file with a date that predates the entry where he denied it.

Showing up to the interview only lets a consular officer nail the timeline down in person. Hacking’s advice was to stop the case rather than feed it. The first step is to confirm whether a DS-260 was actually filed yet. The caller was not yet documentarily qualified, which may be his only break, so he may still be able to withdraw before adding a sworn lie on top of an unsworn one.

The caller kept deflecting to his attorney, saying she handled the forms. That was its own mistake. A client who hides the border lie from his own lawyer has sabotaged the only person who can assess whether a waiver is even theoretically possible.

A misrepresentation finding behaves the same whether it surfaces at a border booth or buried in a form, the way an omission on one application resurfaces to sink a later filing. The honest move costs this green card now but protects any future waiver claim: tell the lawyer everything, get the DS-260, and stop the case before the lie is sworn.