Visitor with Long Overstay, Married to USC

[Jobless5402 0]

Four months ago I entered the US as a tourist from Canada and visited my Girlfriend at the time. We ended up getting married yesterday and have been very worried about applying for a Green Card because of my history in the states.

I was actually brought to the US with my parents as a tourist when i was 10 and stayed until i was 21(Im 22 now), accumulating 3.5 years of out of status/overstay after my 18th birthday. I left the day after i finished University and came to Canada where i spent about 7 months before Visiting my girlfriend which would be the last time i entered the US. I am curious to see what will happen to my overstay when we apply for the i-130 petition and other forms. I have heard the overstay is often forgiven, what should i do? My parents also still reside in the US but have a pending petition from my fathers brother in process, would that be an issue? Also my wife just graduated university and does not have a job yet, can anyone co-sponsor her advidant of support form?

Any support would be greatly appreciated.

[VanessaTony 3,567]

Four months ago I entered the US as a tourist from Canada and visited my Girlfriend at the time. We ended up getting married yesterday and have been very worried about applying for a Green Card because of my history in the states.

I was actually brought to the US with my parents as a tourist when i was 10 and stayed until i was 21(Im 22 now), accumulating 3.5 years of out of status/overstay after my 18th birthday. I left the day after i finished University and came to Canada where i spent about 7 months before Visiting my girlfriend which would be the last time i entered the US. I am curious to see what will happen to my overstay when we apply for the i-130 petition and other forms. I have heard the overstay is often forgiven, what should i do? My parents also still reside in the US but have a pending petition from my fathers brother in process, would that be an issue? Also my wife just graduated university and does not have a job yet, can anyone co-sponsor her advidant of support form?

Any support would be greatly appreciated.

Overstay is forgiven if you're the spouse of a USC but an issue I see is that you entered the US after overstaying... how did they not notice that you were supposed to have a 10 year ban? that confuses me a bit.

NORMALLY it's forgiven. In fact had you married, applied for greencard and never left you'd've been fine but i'm not sure how it's going to affect you with the ban that SHOULD have been enacted after you left... you never should have been let over the border... so that makes me wonder if they even realised you had this overstay...

In regards to co-sponsor, yes anyone can co-sponsor.

If possible I would have a consultation with a lawyer. In theory because you entered WITH inspection you're fine but the entering after overstay might throw a spanner in the works

[Jobless5402 0]

This is what im trying to figure out. Im not in the financial position to consult with a lawyer, so i was hoping i could get some feedback on here.

[sciencenerd 56]

My wife also overstayed visitor status from Canada, although hasn't left the states to trigger any potential bans. My understanding is that if you were not Canadian, you'd have a 10 year ban because you overstayed for more than 1 year and then left the states. However, this does not seem to apply to Canadian visitors, since you were not issued a visa or given an I-94 if you came over just for a visit. It appears that Canadian visitors (w/o an official visa) don't accumulate unlawful presence unless they are specifically ordered to leave and do not (deportation proceedings) - this is because they are considered "duration of status" cases, which don't have an end date. According to our lawyer, this is a policy rather than a law and is therefore a little trickier and easier to have interpreted differently based on who actually works your case. It's also something that can change easily. She believes there is enough documentation and precedence to argue that unlawful presence does not apply to Canadian visitors, but admits that it's not a sure thing. I know you can't afford a lawyer, but I really think that you have to figure out a way to do that in this situation. You need someone to be able to argue this point with some legal standing if it becomes an issue (which seems very likely in your case). Even if you have to put it on credit, borrow from family, etc. - if you want to get legal status here, a lawyer is probably just as necessary as the filing expenses are for you. You can go it alone, but based on the information I have learned, it would be very risky. Of course, I am not a lawyer nor an immigration officer - just sharing some of what I've learned looking into this issue.

Here is an excerpt that explains the policy a bit:

"A recent Department of State cable has also clarified that Canadian citizens and Commonwealth citizens residing in Canada who enter the United States as visitors are to be treated as duration of status cases. This is because such aliens are not issued I-94's when then are admitted as visitors. The DOS cable is discussed in 76 Interpreter Releases 1552 (October 25, 1999).?"

Here is the site I grabbed that from: http://www.americanlaw.com/exclud9A.html

Our lawyer has a copy of this cable that is referred to, but I haven't been able to find it online anywhere.

Good luck!

[Brother Hesekiel 2,236]

It's not a crime or even misdemeanor to overstay your visa, but when you left you triggered the 10-year ban. The only reason why they let you back in is that they didn't find out, most likely because when you entered as a small child, those records weren't available to them at the time, so they could not connect A with B.

Consider yourself very, very lucky, yet be afraid that one day it will surface in bite you in the buttocks.

[Starburst 4]

My wife also overstayed visitor status from Canada, although hasn't left the states to trigger any potential bans. My understanding is that if you were not Canadian, you'd have a 10 year ban because you overstayed for more than 1 year and then left the states. However, this does not seem to apply to Canadian visitors, since you were not issued a visa or given an I-94 if you came over just for a visit. It appears that Canadian visitors (w/o an official visa) don't accumulate unlawful presence unless they are specifically ordered to leave and do not (deportation proceedings) - this is because they are considered "duration of status" cases, which don't have an end date.

This is 100% not true. Just because a Canadian enters, and then stays in the US longer then the 6 months we are allowed to, doesn't mean that we aren't breaking rules that were set. I've seen many, many Canadians get deported and banned who though just because they were "Canadian", that they had special rules for them.

So please be careful what you say because we DO have a limit on how long we are allowed in the country before requiring a visa. And that limit is 6 months.

To the OP: I overstayed 3 years, 2 months by the time I got approved, and I was fine. However, I'm not sure if you leaving the country and then re-entering affects anything. Maybe someone with more knowledge then myself will come along and answer that for you.

All I say base my facts on, is what I went through. I submitted tons and tons of evidence for my relationship and I never had an RFE. My case was processed in 2.5 months and the interview was 5-10 minutes in and out.

You can have any help you with the support form. Family or Friends, whatever works for you.

I don't believe someone else in your family going through immigration affects you, but I don't really know much about that.

I wish you the best of luck, and feel free to message me anytime!

/star

Edited March 18, 2010 by Starburst

[sciencenerd 56]

So please be careful what you say because we DO have a limit on how long we are allowed in the country before requiring a visa. And that limit is 6 months.

I didn't say (or mean to imply) that Canadians don't have a limit - there is a 6 month limit. However, according to the USCIS cable I referred to, Canadian visitors are considered be here on a "duration of stay" status. The definition of "duration of stay" is that there is not a specific date upon which you starting having unlawful presence. Unlawful presence for Canadian visitors (again according to the cable I mentioned above) may not begin until they have been told to leave - if you overstay and are ordered by USCIS to leave the country, your unlawful presence begins at that point. As I explained above, this is a USCIS policy that is different for Canadians who enter as a visitor. Feel free to do your own research and review the cable, but I'm not giving out inaccurate information to the best of my knowledge (and my lawyer's). It will be an uphill battle, but a lawyer can successfully argue that Canadians do not accumulate unlawful presence in this situation and are therefore not subject to the ban.

[sciencenerd 56]

So please be careful what you say because we DO have a limit on how long we are allowed in the country before requiring a visa. And that limit is 6 months.

I didn't say (or mean to imply) that Canadians don't have a limit - there is a 6 month limit. However, according to the USCIS cable I referred to, Canadian visitors are considered be here on a "duration of stay" status. The definition of "duration of stay" is that there is not a specific date upon which you starting having unlawful presence. Unlawful presence for Canadian visitors (again according to the cable I mentioned above) may not begin until they have been told to leave - if you overstay and are ordered by USCIS to leave the country, your unlawful presence begins at that point. As I explained above, this is a USCIS policy that is different for Canadians who enter as a visitor. Feel free to do your own research and review the cable, but I'm not giving out inaccurate information to the best of my knowledge (and my lawyer's). It will be an uphill battle, but a lawyer can successfully argue that Canadians do not accumulate unlawful presence in this situation and are therefore not subject to the ban.

I meant to say "duration of status". I also want to make it clear that I'm not saying this is a good or right way to do anything, I'm just saying it's probably the only option the OP has.

[Jobless5402 0]

I really appreciate all the help.

[fastplz 0]

Four months ago I entered the US as a tourist from Canada and visited my Girlfriend at the time. We ended up getting married yesterday and have been very worried about applying for a Green Card because of my history in the states.

I was actually brought to the US with my parents as a tourist when i was 10 and stayed until i was 21(Im 22 now), accumulating 3.5 years of out of status/overstay after my 18th birthday. I left the day after i finished University and came to Canada where i spent about 7 months before Visiting my girlfriend which would be the last time i entered the US. I am curious to see what will happen to my overstay when we apply for the i-130 petition and other forms. I have heard the overstay is often forgiven, what should i do? My parents also still reside in the US but have a pending petition from my fathers brother in process, would that be an issue? Also my wife just graduated university and does not have a job yet, can anyone co-sponsor her advidant of support form?

Any support would be greatly appreciated.

1.they only ask for your last entry

2.prove your marriage is important (it will be easy if your marriage is first marriage for both of you and your wife)

3.do not leave the country before you get AP

4.co-sponsor is ok

5.wait a little bit long to file AOS after you are married.

6.do more research before you file the AOS

7.check this link. http://shusterman.co...riagevideo.html

[s4837 0]

My wife also overstayed visitor status from Canada, although hasn't left the states to trigger any potential bans. My understanding is that if you were not Canadian, you'd have a 10 year ban because you overstayed for more than 1 year and then left the states. However, this does not seem to apply to Canadian visitors, since you were not issued a visa or given an I-94 if you came over just for a visit. It appears that Canadian visitors (w/o an official visa) don't accumulate unlawful presence unless they are specifically ordered to leave and do not (deportation proceedings) - this is because they are considered "duration of status" cases, which don't have an end date. According to our lawyer, this is a policy rather than a law and is therefore a little trickier and easier to have interpreted differently based on who actually works your case. It's also something that can change easily. She believes there is enough documentation and precedence to argue that unlawful presence does not apply to Canadian visitors, but admits that it's not a sure thing. I know you can't afford a lawyer, but I really think that you have to figure out a way to do that in this situation. You need someone to be able to argue this point with some legal standing if it becomes an issue (which seems very likely in your case). Even if you have to put it on credit, borrow from family, etc. - if you want to get legal status here, a lawyer is probably just as necessary as the filing expenses are for you. You can go it alone, but based on the information I have learned, it would be very risky. Of course, I am not a lawyer nor an immigration officer - just sharing some of what I've learned looking into this issue.

Here is an excerpt that explains the policy a bit:

"A recent Department of State cable has also clarified that Canadian citizens and Commonwealth citizens residing in Canada who enter the United States as visitors are to be treated as duration of status cases. This is because such aliens are not issued I-94's when then are admitted as visitors. The DOS cable is discussed in 76 Interpreter Releases 1552 (October 25, 1999).?"

Here is the site I grabbed that from: http://www.americanlaw.com/exclud9A.html

Our lawyer has a copy of this cable that is referred to, but I haven't been able to find it online anywhere.

Good luck!

I hate to say this, and as much as I wish it were the case, that "cable" was from over ten years ago and a lot of policies and rules have changed... We are in a bind ourselves.

[JimVaPhuong 4,863]

So please be careful what you say because we DO have a limit on how long we are allowed in the country before requiring a visa. And that limit is 6 months.

I didn't say (or mean to imply) that Canadians don't have a limit - there is a 6 month limit. However, according to the USCIS cable I referred to, Canadian visitors are considered be here on a "duration of stay" status. The definition of "duration of stay" is that there is not a specific date upon which you starting having unlawful presence. Unlawful presence for Canadian visitors (again according to the cable I mentioned above) may not begin until they have been told to leave - if you overstay and are ordered by USCIS to leave the country, your unlawful presence begins at that point. As I explained above, this is a USCIS policy that is different for Canadians who enter as a visitor. Feel free to do your own research and review the cable, but I'm not giving out inaccurate information to the best of my knowledge (and my lawyer's). It will be an uphill battle, but a lawyer can successfully argue that Canadians do not accumulate unlawful presence in this situation and are therefore not subject to the ban.

Read the cable, and not Mr. Chang's summary of it.

Canadians do accumulate unlawful presence, just like everyone else. Without an I-94, either USCIS or an immigration judge would have to make a determination that a status violation occurred. This is the same criteria that applies in "duration of status" cases.