Overstay Qu.

[Boiler 45,404]

Does anyone know people that have overstayed less than 180 days but when they go for their interview, they did not have to file a waiver.

I probably should post this in the Canadian forum but I just want to hear from people who have experience in the Waiver forum.

But the original question, seen above, is about a visa interview and filing a waiver. I'm just trying to repeat both scenarios.

Also, my answer involves the fact that most Canadians don't get caught in overstays. . .it's just not possible without I-94's.

I thought I was agreeing with you. You're not eligible after an overstay, your response said

"It may be a question that comes up, it may not."

I agree.

Everybody has to declare their previous travel dates to the US.

Edited September 9, 2008 by Boiler

[emt103c 10]

Everybody has to declare their previous travel dates to the US.

Not true.

When you enter without a visa, as a Canadian citizen does, you are not usually asked for previous travel dates. No I-94, no visa application, no list of travel dates.

When you enter at a POE as a Canadian, or U.S. citizen you usually are only asked a limited number of questions and don't fill anything out except a customs form and it definitely does not ask for previous travel dates.

So, the only time a Canadian citizen, for example our OP, is asked to disclose these things is if something is suspicious and he/she is sent to secondary inspection. . .even then it's not a sure bet.

[Boiler 45,404]

Everybody has to declare their previous travel dates to the US.

Not true.

When you enter without a visa, as a Canadian citizen does, you are not usually asked for previous travel dates. No I-94, no visa application, no list of travel dates.

When you enter at a POE as a Canadian, or U.S. citizen you usually are only asked a limited number of questions and don't fill anything out except a customs form and it definitely does not ask for previous travel dates.

So, the only time a Canadian citizen, for example our OP, is asked to disclose these things is if something is suspicious and he/she is sent to secondary inspection. . .even then it's not a sure bet.

I was talking about the Immigration application, the bio details are surely the same for everybody.

[Married_my_love 0]

We declared all of my husband's previous stay, one which was over 180 days and it wasn't even mentioned in our interview. I lost sleep over this and paid 3 lawyers who told me he would be denied. DH, Canadian with no I94, considered violation of stay but with no judge ruling and was not discussed in interview with Consular.

[Boiler 45,404]

So 3 lawyers said it would be a problem, I thought it might be a problem, but might well get lucky. And you did get lucky.

Odds, no idea.

[emt103c 10]

aaaarrrrrrrrrrrrrgh! Not all attorneys do their research. marriedmylove benefited from the Advisory Opinion I posted in this thread (post #3) This advisory opinion means that this particular law is applied differently for Canadians. It is not luck. . .it is whether or not the Consular Officer follows or knows the rules.

I posted it before, but here it is again. From Shusterman's website.

http://www.shusterman.com/up-canada.html

[Boiler 45,404]

aaaarrrrrrrrrrrrrgh! Not all attorneys do their research. marriedmylove benefited from the Advisory Opinion I posted in this thread (post #3) This advisory opinion means that this particular law is applied differently for Canadians. It is not luck. . .it is whether or not the Consular Officer follows or knows the rules.

I posted it before, but here it is again. From Shusterman's website.

http://www.shusterman.com/up-canada.html

That deals with a slightly different question.

The question asked is is someone who was admitted for 6 months, breached that time limit, is subsequentl eligible to seek visa free entry to the US. And if not, what the consequences are.

Now everthing I have read says that Canadians are admitted for a max of 6 months, not d/s. If it is 6 months but no consequences unless caught does that also apply when seeking subsequent admission. I have a feeling that in this case no mention was made of the previous overstay on the subsequent entry.

[emt103c 10]

marriedmylove was issued a visa for the reason given in this advisory opinion. They could not charge with overstay because of the mandate of the Advisory Opinion. Once the Advisory Opinion is issued it trumps other interpretations of the law. marriedmylove specifically states that she self-reported the previous overstay.

As you report this does not apply to non-visa entries after an overstay. If they KNOW you have an old overstay, they will not allow entry without a visa. . .it does not, however, always come up.

You are also right to say that Canadians are allowed a maximum of 6 months not D/S. . .this AO simply states that for the purposes of determining bans for the purpose of consular visa issuance and determination of 9B, overstay is to be determined the same as D/S entries. Therefore, if not determined by a USCIS official or immigration judge. . .no overstay, no ban.

The OP asked about both types of entry, with and without visa, which is why we are discussing both. Her original question is below. marriedmylove was telling her that even with an overstay of OVER 180 days she was issued a visa without a waiver. . .backing up the Advisory Opinion.

Does anyone know people that have overstayed less than 180 days but when they go for their interview, they did not have to file a waiver.

I probably should post this in the Canadian forum but I just want to hear from people who have experience in the Waiver forum.

[Boiler 45,404]

marriedmylove was issued a visa for the reason given in this advisory opinion. They could not charge with overstay because of the mandate of the Advisory Opinion. Once the Advisory Opinion is issued it trumps other interpretations of the law. marriedmylove specifically states that she self-reported the previous overstay.

As you report this does not apply to non-visa entries after an overstay. If they KNOW you have an old overstay, they will not allow entry without a visa. . .it does not, however, always come up.

You are also right to say that Canadians are allowed a maximum of 6 months not D/S. . .this AO simply states that for the purposes of determining bans for the purpose of consular visa issuance and determination of 9B, overstay is to be determined the same as D/S entries. Therefore, if not determined by a USCIS official or immigration judge. . .no overstay, no ban.

The OP asked about both types of entry, with and without visa, which is why we are discussing both. Her original question is below. marriedmylove was telling her that even with an overstay of OVER 180 days she was issued a visa without a waiver. . .backing up the Advisory Opinion.

Does anyone know people that have overstayed less than 180 days but when they go for their interview, they did not have to file a waiver.

I probably should post this in the Canadian forum but I just want to hear from people who have experience in the Waiver forum.

I have no issue with the ban situation, so we can put that to one side.

The only question in my mind is what happens when a Canadian obtains entry on a non visa when not entitled to do so.

Is it not an issue, if it is, what is it, assuming that it is noticed and acted upon. I know there would be an issue on a VWP entry, but that is not comparable in many ways.

[emt103c 10]

The reason that Canadians are able to do this, and people from Visa Waiver countries are usually not (sometimes VWPers get away with it too) is the I-94. Canadians are usually not asked about previous entries at the POE. There is no record of their exit from the U.S. required, so there is nothing to cross reference entries with.

IF the officer figures it out, as he did in the OP's situation, he will deny entry. It's just not as easy to figure out with a Canadian. . .and most people, Canadians included, don't know that they can be denied entry if they overstay.

Passport stamps are also not as frequent when traveling back and forth from Canada. . .I've gone back and forth more than 28 times in the last three years and I don't get stamped even 50% of the time.

[Married_my_love 0]

Yes what EMT said, not about luck at all. (well except lucky our Consular knew about the advisory opinion)

In our case, I met my husband in US and he had been here several months. He went home for a wedding but wanted to come back because we were all googly for each other When he got to the Toronto airport they asked him what he was going to the US for. He said MY GIRL IS THERE!! and then proceeded to tell them all the wrong things (the truth). They allowed him to retract, sent him back to Ottawa and stamped a piece of paper (because this was before passports).

He did not attempt return until he flew down here to help me move to Canada. MAN he had a hard time. He had every piece of paper possible to prove I was moving to Canada with him because he knew they'd see his previous issues and probably stop him. They wanted to deny but he just kept pulling out more evidence mover's contract, my Canada PR approval, and lots of stuff to convince them. They finally let him in.

Anyways, blah blah, yes that advisory opinion saved us. The Consular did say, "Oh I see you were denied entry" (because we had to say he had been denied before on application)... and that was it. Never brought up the previous overstay at all.

All 3 lawyers had no idea about Canadians and overstay. I paid $ to have them tell me he was subject to the ban, he would need a waiver and that we should have the waiver with us at time of interview. I had to do my own research to find out they were wrong (and I should have used Shusterman would have saved me a lot of $).

[ohmy 0]

I appreciate all the information that you all have given. I do have to say, some things, I am not get the total understanding of- the Boiler/EMT103C "convo". Maybe I am slow, but after reading the Advisory Opinion, I think that I may be more confused than I originally thought I was.

If anyone could put these things in Laymen's term for me!

Thanks

[emt103c 10]

When applying for an immigrant visa, a Canadian does not have to file a waiver for overstay

unless

1. They were declared/discovered as an overstay while in the U.S. by an immigration official or judge, and then overstayed 180 days or more OR

2. Overstayed on a visa and then left the United States.

[ohmy 0]

Thanks, EMT103c, I can always rely on you for a response, you're great

[Carlawarla 1]

Thanks, EMT103c, I can always rely on you for a response, you're great

I certainly agree. In fact there are many constant people who hang out in the Waiver section to answer so many questions for VJ members and to them I salute and thank them for their unfailing efforts to help understand the process.

Edited September 16, 2008 by Carlawarla