stayinin u.s. waiting for k-3 interview-can I be denied at interview?

[Caladan 19]

Thanks to all of you. I've ruined my day with this worry. I'm so tired. "What will be will be". I'm sure you all understand. God bless you all.

Maria

You last entered in November 2007, right? And you're staying till April? You're fine.

[Krikit 1,164]

What you've bolded says 'no time before re-entry', not 'there isn't a six month maximum per annum, even if accrued in several visits.'

Every new entry is a new entry and a new clock for legal presences and for accruing an overstay. That's true of any visa. Of any entry. That doesn't at all speak to whether there are any restrictions on how much time one can spend per annum in a country.

My point is that in any case, she hasn't overstayed a blessed thing, regardless of how the six months is calculated. One can't accrue overstay time by adding up days from seven separate visits and seeing if it's over 180.

Oh sorry. That bolded bit was in response to someone else's specific question in the other linked thread. I should have removed it but I didn't feel like re-linking the post. The real information is in the CBP link.

[Caladan 19]

Yeah. And I think we're in agreement on the main point. One has to be out of status to accrue overstay time, and she's not out of status! Voila. No problem.

[Krikit 1,164]

Yeah. And I think we're in agreement on the main point. One has to be out of status to accrue overstay time, and she's not out of status! Voila. No problem.

[Kathryn41 3,205]

Yes, I didn't mean to imply that you are out of status after you have been here 6 months - but that if you have 6 months worth of out of status

time accrued that earns a 3 year ban, and a year of out of status time earns a year ban. Still not sure that it isn't 6 months in a year - I know that is what I was told when I dated a US citizen for 9 years and was crossing the border very regularly - that I was not allowed to accrue more than 6 months worth of time spent within the US in any one year.

Edited March 21, 2008 by Kathryn41

[Caladan 19]

Yes, I didn't mean to imply that you are out of status after you have been here 6 months - but that if you have 6 months worth of out of status

time accrued that earns a 3 year ban, and a year of out of status time earns a year ban. Still not sure that it isn't 6 months in a year - I know that is what I was told when I dated a US citizen for 9 years and was crossing the border very regularly - that I was not allowed to accrue more than 6 months worth of time spent within the US in any one year.

I've heard the latter, too, but can't find a citation for anything but 'no more than six months at a time.' But I'm sure you're right on this point. zyggy?

[itsallgreektome 0]

Yes, I didn't mean to imply that you are out of status after you have been here 6 months - but that if you have 6 months worth of out of status

time accrued that earns a 3 year ban, and a year of out of status time earns a year ban. Still not sure that it isn't 6 months in a year - I know that is what I was told when I dated a US citizen for 9 years and was crossing the border very regularly - that I was not allowed to accrue more than 6 months worth of time spent within the US in any one year.

I've heard the latter, too, but can't find a citation for anything but 'no more than six months at a time.' But I'm sure you're right on this point. zyggy?

You know what you guys....I have tried all day to find out on all these different gov sites there is nothing that is so specific in regards to this issue. It is so frustrating. I'm also not to use what you mean by out of status. So if I am here for 181 days I am out of status by 1 day, right?

I am still very nervous and unsure. If it wasn't a holiday I would have calle some of these agencies but they are all closed...I guess till Tuesday. Oh brother.

Maria

[Caladan 19]

"Out of status" usually means "entered legally, but has no legal status currently." One can fall out of status in a lot of ways, but the one that would concern you here is by overstaying the time one is allotted in the country.

For a Canadian entering as a tourist, you've got it right: you would go out of status on day 181, because the first 180 days are part of your legal stay. But there isn't a fixed penalty for being out of status until you've accrued 180 days out of status.

Now, as the law is written, each new entry resets the clock. So if I stay 15 days, then leave, and then come back, my first day back isn't day 16 of the previous 180 period, but day 1 of a new 180 period. I've spent 16 days in the country, but they were part of two separate entries, and none of the time counted as an overstay. If I'd stayed 200 days the first time, then left, and come back, I would be starting over on day 1 of a new 180, but I'd have 20 days out of status time.

On none of your previous trips did you overstay (you have a number of trips, all under six months), so you didn't accrue any out of status time. So in terms of worrying about falling out of status, you'd count days from the last time you crossed the border. Let's say you came at the beginning of November and leave March 30: 30, 31, 31, 29, 31 gives us 151 or so? You're fine.

(There is a bit of disagreement as to whether a Canadian is permitted to stay six months per visit, or six months per recent twelve months per all visits, but I can't find a citation to settle that. But in any case, that wouldn't be accruing an overstay time, which is what the waiver business is all about.)

[itsallgreektome 0]

"Out of status" usually means "entered legally, but has no legal status currently." One can fall out of status in a lot of ways, but the one that would concern you here is by overstaying the time one is allotted in the country.

For a Canadian entering as a tourist, you've got it right: you would go out of status on day 181, because the first 180 days are part of your legal stay. But there isn't a fixed penalty for being out of status until you've accrued 180 days out of status.

Now, as the law is written, each new entry resets the clock. So if I stay 15 days, then leave, and then come back, my first day back isn't day 16 of the previous 180 period, but day 1 of a new 180 period. I've spent 16 days in the country, but they were part of two separate entries, and none of the time counted as an overstay. If I'd stayed 200 days the first time, then left, and come back, I would be starting over on day 1 of a new 180, but I'd have 20 days out of status time.

On none of your previous trips did you overstay (you have a number of trips, all under six months), so you didn't accrue any out of status time. So in terms of worrying about falling out of status, you'd count days from the last time you crossed the border. Let's say you came at the beginning of November and leave March 30: 30, 31, 31, 29, 31 gives us 151 or so? You're fine.

(There is a bit of disagreement as to whether a Canadian is permitted to stay six months per visit, or six months per recent twelve months per all visits, but I can't find a citation to settle that. But in any case, that wouldn't be accruing an overstay time, which is what the waiver business is all about.)

You know, what you are saying makes alot of sense. I've lived in Canada for 50 years and I don't ever remember anyone saying that they have accummulated a certain number of days in the U.S. and they only have a certain amount of time left on their 180 days. Do you know what I am trying to say? I can sure understand how it can get sooooo confusing but come Tuesday I as going to call some government offices to find out. But if you think about it we are kinda tourists but we are also under a different status as we wait for our visas so I think we are in the middle . All in all, it does come down to the officer at the interview or the border office. Thanks for your imput, I really appreciate it alot.

Maria

[itsallgreektome 0]

"Out of status" usually means "entered legally, but has no legal status currently." One can fall out of status in a lot of ways, but the one that would concern you here is by overstaying the time one is allotted in the country.

For a Canadian entering as a tourist, you've got it right: you would go out of status on day 181, because the first 180 days are part of your legal stay. But there isn't a fixed penalty for being out of status until you've accrued 180 days out of status.

Now, as the law is written, each new entry resets the clock. So if I stay 15 days, then leave, and then come back, my first day back isn't day 16 of the previous 180 period, but day 1 of a new 180 period. I've spent 16 days in the country, but they were part of two separate entries, and none of the time counted as an overstay. If I'd stayed 200 days the first time, then left, and come back, I would be starting over on day 1 of a new 180, but I'd have 20 days out of status time.

On none of your previous trips did you overstay (you have a number of trips, all under six months), so you didn't accrue any out of status time. So in terms of worrying about falling out of status, you'd count days from the last time you crossed the border. Let's say you came at the beginning of November and leave March 30: 30, 31, 31, 29, 31 gives us 151 or so? You're fine.

(There is a bit of disagreement as to whether a Canadian is permitted to stay six months per visit, or six months per recent twelve months per all visits, but I can't find a citation to settle that. But in any case, that wouldn't be accruing an overstay time, which is what the waiver business is all about.)

p.s. no I have never stayed in the u.s. longer than this time around. I just assumed that I could stay for 6 months....go back to canada for 2 weeks and then my 6 months starts all over again. I have never been under so pressure as I have today. Thank you again.

[Reba 2]

...Now, as the law is written, each new entry resets the clock. So if I stay 15 days, then leave, and then come back, my first day back isn't day 16 of the previous 180 period, but day 1 of a new 180 period. I've spent 16 days in the country, but they were part of two separate entries, and none of the time counted as an overstay. If I'd stayed 200 days the first time, then left, and come back, I would be starting over on day 1 of a new 180, but I'd have 20 days out of status time.

On none of your previous trips did you overstay (you have a number of trips, all under six months), so you didn't accrue any out of status time. So in terms of worrying about falling out of status, you'd count days from the last time you crossed the border. Let's say you came at the beginning of November and leave March 30: 30, 31, 31, 29, 31 gives us 151 or so? You're fine.

however, there is the caveat of the "defacto" residency and ties to Canada. If one is spending more time in the US than in Canada, a CBP official *could* determine that the person is living illegally in the US (whether working illegally or just sitting watching TV and eating bon bons all day) and only returning to Canada for short jaunts to restart the clock so to speak (which, if I understand her situation correctly, is basically what she's been doing). Whether this will come up at the interview is anyone's best guess.

[itsallgreektome 0]

Ya, I thin Reba is probable right. I could be in big trouble when I get to the interview. Thanks for your input.

[Caladan 19]

...Now, as the law is written, each new entry resets the clock. So if I stay 15 days, then leave, and then come back, my first day back isn't day 16 of the previous 180 period, but day 1 of a new 180 period. I've spent 16 days in the country, but they were part of two separate entries, and none of the time counted as an overstay. If I'd stayed 200 days the first time, then left, and come back, I would be starting over on day 1 of a new 180, but I'd have 20 days out of status time.

On none of your previous trips did you overstay (you have a number of trips, all under six months), so you didn't accrue any out of status time. So in terms of worrying about falling out of status, you'd count days from the last time you crossed the border. Let's say you came at the beginning of November and leave March 30: 30, 31, 31, 29, 31 gives us 151 or so? You're fine.

however, there is the caveat of the "defacto" residency and ties to Canada. If one is spending more time in the US than in Canada, a CBP official *could* determine that the person is living illegally in the US (whether working illegally or just sitting watching TV and eating bon bons all day) and only returning to Canada for short jaunts to restart the clock so to speak (which, if I understand her situation correctly, is basically what she's been doing). Whether this will come up at the interview is anyone's best guess.

Dude, that's a problem, but a problem for *re-entry*, i.e., one that would come up at the border, where they might say 'she has immigrant intent, since she doesn't have ties to Canada, so we should make her get a tourist visa.' And then they might not let her in. So if she were saying 'hey, I want to stay here six months, then leave, and then return', we might caution that she could face a hard time returning due to a strong presumption that her residency is really in the U.S.

But that doesn't make her an illegal immigrant. They can't decide that she's living illegally in the U.S. when she has a) entered legally and b ) hasn't overstayed. There isn't a category for 'lived illegally and thus subject to a ban because it looks like you were here too long though withing the legal limits.' What statute has she violated? A CBP officer isn't conducting the K-3 interview; their job is the border. Under what would they deny the visa?

I worry we're freaking her out over nothing. She's kept to the letter of the law as near as anyone can tell.