Am I crazy?

[Hugglebuggles 60]

None of us are immigration lawyers, so we can only give you advice based on the knowledge we have acquired through this site and researching visas on our own time. But I seriously doubt you are going to win a debate over the specific wording and intentions of American immigration laws, regardless if you are correct or not. It is widely acknowledged that Canadians are allowed to stay in the US for 6 months out of the year. I have a grandfather who lived in Florida part-time for years, and he would insure he spent 6 months in the US and 6 months in Canada... I also had a friend who was dating an American just across the border in Buffalo, NY and would do the same thing. This doesn't mean they were right and you are wrong, i'm just trying to demonstrate that this is the common knowledge. It is the assumption we have all operated by for years, and the assumption many Canadians have operated under for years. So making that argument is going to be a very difficult one... like convincing someone the sky is really green.

I did some google searching to see if I could find anything for you and I didn't get much. But I was looking on the US Consular services website and it very clearly says this, "Canadian visitors are generally granted a stay in the U.S. for up to six months at the time of entry. Requests by any foreigner to extend or adjust a stay must be made prior to expiry to the U.S. Citizenship and Immigration Service. All Canadians are reminded that U.S. law requires all foreigners to qualify for the desired stay and purpose at the time of their intial entry. A visitor who intends to live, work or study in the U.S. may be permanently barred from the U.S."

http://www.consular.canada.usembassy.gov/canadians.asp

So, I suppose that can be interpreted in a couple different ways, but it does mention the 6 month requirement, and that an application for any extension is required. Its hard to say you did "nothing wrong" by staying for that long, but I haven't found anything that explicitly states "anything over 6 months is an overstay." I guess what i'm saying is that, even if it is technically not an "overstay," I can't see it not coming up as an issue in your CR-1 interview. To me, it just seem really risky!

[Carlawarla 1]

I'm sorry you're so stressed rexalite and hope that meeting with another lawyer today brings you some answers. I do wish you luck in whatever decision you make.

[Krikit 1,164]

So, I suppose that can be interpreted in a couple different ways, but it does mention the 6 month requirement, and that an application for any extension is required. Its hard to say you did "nothing wrong" by staying for that long, but I haven't found anything that explicitly states "anything over 6 months is an overstay." I guess what i'm saying is that, even if it is technically not an "overstay," I can't see it not coming up as an issue in your CR-1 interview. To me, it just seem really risky!

I'm not going to get into interpretation of law or further discuss the ins and outs of your case, Rexalite, but Huggles' sentence, above, made me think of the fact that Canada automatically deems someone a non-resident once they've been out of the country for 183 days. Which has implications not only for taxes and the sale of any property, but also income and benefits. Just putting it out there.

[thetreble 19]

Again, as T-mix said Huggle, if we were allowed to stay as long as we want you would see a lot less Canadians around these forms.

It is common knowledge that is 6 months in a calender year. (or however the year goes...as it has been widely debated among us...)

If I could have stayed in the US "legally" for almost 2 years just as a visitor, I would have. But that was not the case.

Also, read what Krikit has said above as it is very important. I would strongly discourage you from leaving the US as your provincial health benefits would have been suspended by now. You would be considered a non-resident of Canada, regardless if you still own a home there or are working from your computer.

If you want to believe you are not overstayed, believe it. But we are all telling you that in fact, you have overstayed regardless of how good your reasons were. If you want to take your chances, take them. But you could be in Canada for awhile.

[beans 7]

Agreed. It does not look good.

[trailmix 77]

I also looked and I could find very little on it.

Here is the thing. I am certainly no lawyer and I certainly know zero about the law with regard to your overstay or non-overstay.

What I do know is the CO's have a great deal of power.

While we do know a lot about U.S. family immigration as a group, the CO is the wild card. If we knew exactly how they were going to react or rule on every application, if it were all there for everyone in black and white, there wouldn't be nearly as many posts!

What i'm saying is that there is that wildcard. Therefore no one (in my opinion) is going to say you should go to your interview in Montreal.

That said, if you do decide to go and the CO does judge that you have an overstay and you have to file a waiver - that is not the end of the world either, you two will surely work around that.

I did find information though that deemed some Canadians as 'overstays' link

The main overstay groups omitted from the DHS overstay estimate of 2.3 million are

• long-term Mexican and Canadian overstays who were not required to fill out Form I-94 at entry and

• short-term overstays, whether from Mexico, Canada, or other countries.

Appendix IV: How DHS Estimated Overstays

However, two major groups are exempt from filling out Form I-94 when they visit the United States for business or pleasure:

• Canadian citizens admitted for up to 6 months

and

• Mexican citizens entering the United States with a border crossing card

[rexalite 0]

I appreciate all the thoughtful responses. Simce I've posted this, I've been messaged by two other Canadians in the same situation. Unfortunately their interviews are after mine! Anyway, all of your insights are helpful to them as well.

From some of the responses, it seems like part of the confusion comes from the use of the term "overstay". So you can say that any Canadian who stays longer than 6 months is in "overstay", but overstay doesn't have any meaning for the purposes of the Immigration Act. What the IA writes about is "unlawful presence" -for Canadians who enter without an I94, the unlawful presence clock for the purpose of the 3/10 year ban does not start until you are ordered out of the country. So if you leave without ever having been ordered out, you have no legally significant "overstay" for the purposes of visa application. Canadians entering without an I94 are duration of status, ie de facto allowed to be in the US as long as they are in the US or told to get out.

What is significant though, as you said trailmix, is that the CO can make a finding of misrep when you entered, and then the onus is on you to prove that there was no misrep when you crossed the border. This same risk exists in the adjustment of status process, but the difference is, while the misrep issue is being hashed out, I would be out of the country if I pursued the consulate route. For me with a baby in the picture, I wouldn't risk it. If it were just me, I would go to Mtl for sure.

treble- that misrep issue is what keeps people from just entering willy-nilly and staying as long as you like. If you are asked how long are you visiting the US for and what is the purpose of your visit, and you dont' mention that you are going to stay for 2 years and then return for your visa interview, well you are misrepresenting yourself. But if you decide you don't want to be apart from your spouse anymore, and you enter with intent to stay permanently, they will still allow you to adjust status if there are no other negative factors in your case (misrep, criminal record, etc.) So really, at the end of the day, you aren't really forced to stay apart from your spouse if you dont' have those complicating factors. It's kind of unfair, but there it is.

[Chica Yeyé 41]

FFS. Really.

[rexalite 0]

FFS. Really.

What does that mean?

[Kathryn41 3,205]

Regarding Canadians allowed 'duration of stay' - this is anecdotal evidence but still may be relevant. When I worked for the MP when still in Canada we had a case of a Canadian woman who decided to live with her boyfriend in the US. She just crossed the border and they started to live together in Florida. After being there just about 2 years (22 months) she and her boyfriend took a Caribbean cruise and came back to the US. When she tried to re-enter, she was arrested by ICE and placed immediately in detention for trying to re-enter the US after a substantial overstay which made her inadmissible. If she were at the Canadian border she would probably have just been turned back and denied entry but because it was in Florida they arrested her. Her parents called upon our office to try and expedite her deportation to get her back home as detention is not a nice place to be. All of our inquiries were ignored and we had no success. The family hired a lawyer in Florida who was allowed to see her but was also unsuccessful in getting the process sped up. She was in detention for at least 4 months before she was deported. It did not matter that she had a US child who stayed in the US with the father. So, please, realize that there is indeed an overstay for Canadians who do not have proper immigration documents to justify their presence in the US. A visitor is admitted for 6 months or less - not indefinitely.

I agree with Krikit - do not leave the US but withdraw your previous application and submit an AOS from within the US. Once the AOS is approved your overstay will be forgiven. If you wish to leave the US under the belief that there is no overstay, that is your choice. All choices have consequences - it is up to you to figure out which ones you want to face.

[La Souris 19]

Regarding Canadians allowed 'duration of stay' - this is anecdotal evidence but still may be relevant. When I worked for the MP when still in Canada we had a case of a Canadian woman who decided to live with her boyfriend in the US. She just crossed the border and they started to live together in Florida. After being there just about 2 years (22 months) she and her boyfriend took a Caribbean cruise and came back to the US. When she tried to re-enter, she was arrested by ICE and placed immediately in detention for trying to re-enter the US after a substantial overstay which made her inadmissible. If she were at the Canadian border she would probably have just been turned back and denied entry but because it was in Florida they arrested her. Her parents called upon our office to try and expedite her deportation to get her back home as detention is not a nice place to be. All of our inquiries were ignored and we had no success. The family hired a lawyer in Florida who was allowed to see her but was also unsuccessful in getting the process sped up. She was in detention for at least 4 months before she was deported. It did not matter that she had a US child who stayed in the US with the father. So, please, realize that there is indeed an overstay for Canadians who do not have proper immigration documents to justify their presence in the US. A visitor is admitted for 6 months or less - not indefinitely.

I agree with Krikit - do not leave the US but withdraw your previous application and submit an AOS from within the US. Once the AOS is approved your overstay will be forgiven. If you wish to leave the US under the belief that there is no overstay, that is your choice. All choices have consequences - it is up to you to figure out which ones you want to face.

I know a couple with a similar story... Girl moves to the US, they live together for more than a year. Summer vacations come, they drive back to see her family in Canada. Returning home, questions about previous stays from the young CBP (Summer internship or something) - he was really zealous and happy to make is first "arrest" and seized their car because in his opinion my friend was trying to smuggle his girlfriend back in the US... Sounds stupid, but it took them nearly a year until she was able to come back in the US (I think they had to request a waiver + work permit; I had no interest in this administrative process back then so, the details are a little blurry). Other CBPs told them that they would not have acted the same way, but once the young one started the process, it was hard and long for them to overcome...

You sure do what you want, but, me, I would be way to nervous to put my life into the hands of someone (CO) who has so much discretional power...

Good luck!

[canadian_wife 1,818]

I really don't have any advice for you Rex - but if you do decide to go to the interview then just remember to tell the WHOLE truth. They probably know more than we think they do. And maybe you can play on their compassion (after all, you had a baby to tend too...what were you supposed to do).

Good luck, please keep us posted on what you decide.

[thetreble 19]

treble- that misrep issue is what keeps people from just entering willy-nilly and staying as long as you like. If you are asked how long are you visiting the US for and what is the purpose of your visit, and you dont' mention that you are going to stay for 2 years and then return for your visa interview, well you are misrepresenting yourself. But if you decide you don't want to be apart from your spouse anymore, and you enter with intent to stay permanently, they will still allow you to adjust status if there are no other negative factors in your case (misrep, criminal record, etc.) So really, at the end of the day, you aren't really forced to stay apart from your spouse if you dont' have those complicating factors. It's kind of unfair, but there it is.

It doesn't seem like you are really understanding what we are saying, as you keep repeating yourself. You don't think the overstay applies to you, BUT IT DOES! You entered as a visitor. As a visitor you have the right to stay in the US no more than 6 months. It isn't just about misrepresentation; that is only one part of it. You are currently an illegal immigrant in the United States of America. You have no documents of legalization and you are technically AND legally out of status.

Not to mention, you are incorrect in saying that if you showed up at the border and told them you intended to stay PERMANENTLY they would let you through to adjust AOS. If you showed up at the border with the intentions to immigrate without proper procedure you are committing a crime. If I told an BP officer that I wanted to go to the US "to get married to my husband and apply for AOS" I would be breaking the law and would not even be let into the US at that point any way.

Why ask your opinion if you obviously know everything already.

Again, best of luck to you.

[wowswift 3]

I agree with all of them, you overstayed. but gl.

[rexalite 0]

I agree with all of them, you overstayed. but gl.

I definitely have been repeating myself, because people keep saying I'm out of status and I know I am not. What I was concerned about was what trailmix mentioned - the discretionary powers of the COs. I have consulted with 4 different attorneys now because I got conflicting info about how great the risk was that I could have this kind of problem. All 4 lawyers agreed on the fact that I am not out of status. All the stuff you have learned about bans and waivers doesn't apply to canadians who enter with inspection but without an i94.

I hope that info is helpful to someone at some point.

What I was looking for was any instances of this issue coming up at the consulate, and I still haven't come across one. I am pretty sure I am going to adjust status at this point though.

Treble - if you announced your intent at the border, you wouldn't be allowed in. But if you entered and adjusted they won't disallow you from adjusting because of preconceived intent.