Am I an ILLEGAL alien?!

[DandT14 272]

Yes they do, they are admitted under the terms of a B2 tourist visa at the border, without having to apply for one. If she lied at the border, then it will still matter. If she didn't her current status will not matter, but she definitely overstayed, and is accumulating illegal presence. She seems to be shocked that she is an "illegal alien" but she is certainly not here legally.

As was pointed out above, if the AOS is already sent and accepted for initial review, now the OP is in a new period of authorized stay.

My understanding was that the B2 visa thing applied to visa waiver countries, not Canada. Canadians come in under a provision of NAFTA, don't they? I freely admit you know more about this stuff than I do, but that was my understanding. They don't accumulate unlawful presence unless they've been told to leave. I wish I could find the thread where that was discussed fairly recently, but I can't find it quickly and I have to go to work.

Of course in the big picture, it doesn't matter since she still has to file AOS and shouldn't leave the country until she's done.

[jaycali 415]

You are not an illegal alien, you are an overstayer. Practically the same thing, but very different in immigration terms. You are eligible to adjust status to permanent resident if you do not leave the US until receiving your green card.

If you do leave the US, you are subject to a 10 year bar from entry.

An illegal alien is someone who enterd the US without inspection.

An overstayer is someone who entered legally with inspection, but stayed longer than they were allowed to.

Edited June 29, 2012 by jaejayC

[GlobeHopperMama 95]

Yes, of course you are an illegal alien. You know full well you came on a tourist visa and you do not have permission to live in the US. You have overstayed your allotted time and are now accumulating days of illegal presence. Luckily, that will be irrelevant/forgiven once your Greencard is approved.

Like I said, Canadians are special.

You can see a basic reference to what I was talking about here (and what DandT14 was trying to clarify):

In cases where no I-94 is issued (such as in the case of Canadian citizens who enter as visitors) or in cases where the period of authorized stay on the I-94 is noted as D/S or "Duration of Status" the non-immigrant does not begin to accrue unlawful presence until the USCIS or an Immigration Judge makes a determination that the person is out of status. For example, if a person is admitted to the U.S. as an F1 student and drops out of school after 6 months months the person does not begin to accrue unlawful presence because he was admitted for "Duration of Status" and no official determination had been made with respect to his status. While the person in this case is in violation of his visa and in unlawful status there is no unlawful presence accruing. If however, the student sometime thereafter applies to change his status to that of a visitor or some other non-immigrant status and that case is denied by the USCIS this is considered an official USCIS that would officially render the F1 student as "out of status" and he would begin to accrue unlawful presence at that point.

This is all irrelevant now that AOS has been filed anyway, but yeah. Canadians are admitted under D/S and don't accrue unlawful presence until declared so by USCIS or an IJ. And therefore, if she leaves, she actually hasn't accrued unlawful presence to activate a ban unless declared out of status. I've known several Canadians who did consular filing after periods of very long stay in the US, and they were able to successfully get their visas without a waiver. One was told to file the waiver, but later produced the policy memo related to this, and got the consulate to admit that there was no unlawful presence. This only really applies to Canadians, though.

Edited June 29, 2012 by Carlos and Amy

[Harpa Timsah 13,258]

I am aware of this interpretation for Canadians, but USCIS can easily "declare" that she has long overstayed, because she has. If she were to leave now, she would most certainly be denied reentry and banned at the reentry attempt. Canadians are not permitted to come and live in the US without proper visas. Entering on your passport is entering under the terms of a B2 visa, where the maximum allotted time is 6 months. To DandT, VWP people do not enter under the terms of a B2 visa, they enter under the terms of the VWP, which is different. Canada is not VWP.

So the OP is asking "Did I do wrong? Am I illegal?" And the answer is yes. She was not permitted to stay here for 2 years.

Practically speaking, it does not matter, none of this discussion of how she should define herself will make any difference in her AOS. I don't mean to berate her at all, many people on this forum have overstayed. But I think to pretend that she is somehow living in the US in accordance with her Canadian visitor status is nonsense.

Edited June 29, 2012 by Harpa Timsah

[jdh 103]

You are not an illegal alien, you are an overstayer. Practically the same thing, but very different in immigration terms.

An illegal alien is someone who enterd the US without inspection.

An overstayer is someone who entered legally with inspection, but stayed longer than they were allowed to.

This is not true and apparently a common and dangerous misunderstanding of immigration law.

Please stop spreading this misconception.

If you overstay your lawful stay you become unlawfully present...ie. illegal.

Do not think for a second that if you have overstayed and happen to be detained by the police for some reason and they notify ICE or otherwise catch the attention of ICE that you will not be placed into removal proceedings the same as any other person who has established an unlawful presence within the US.

Studies have shown that up to 50% of illegal aliens consist of those who have entered on a legal visa but overstayed that visa. You are indeed counted with those who entered the country illegally when you overstay your lawful duration of stay.

For the OP this is insignificant, as has already been covered, in that she has applied for AOS and has entered a new lawful status while a decision is pending.

[grrrrreat 109]

I am aware of this interpretation for Canadians, but USCIS can easily "declare" that she has long overstayed, because she has. If she were to leave now, she would most certainly be denied reentry and banned at the reentry attempt. Canadians are not permitted to come and live in the US without proper visas. Entering on your passport is entering under the terms of a B2 visa, where the maximum allotted time is 6 months. To DandT, VWP people do not enter under the terms of a B2 visa, they enter under the terms of the VWP, which is different. Canada is not VWP.

So the OP is asking "Did I do wrong? Am I illegal?" And the answer is yes. She was not permitted to stay here for 2 years.

Practically speaking, it does not matter, none of this discussion of how she should define herself will make any difference in her AOS. I don't mean to berate her at all, many people on this forum have overstayed. But I think to pretend that she is somehow living in the US in accordance with her Canadian visitor status is nonsense.

Sorry I think you are a little wrong. The USCIS has said that Canadians who weren't issued I-94s don't accrue unlawful presence at all until they have been ordered to leave by USCIS or an immigration judge. So the unlawful presence begins after that order, not retroactively.

The term "illegal alien" does not appear anywhere in the Immigration Law. The only relevant term that does is "unlawful presence". Both overstayers of visas and people who enter without inspection can be "unlawfully present". The only distinction of EWIs is that they can't adjust status--but they're no more "lawfully present" than an overstayer.

ALSO THIS IS IMPORTANT EVERYBODY: adjustment applicants who travel with advance parole no longer have overstay bans, per a recent decision of the Board of Immigration Appeals.

Edited June 29, 2012 by grrrrreat

[Harpa Timsah 13,258]

So the unlawful presence begins after that order, not retroactively.

The ban can begin for prior illegal presence. If she were to leave the US, and try to come back, the CBP agent would be in his/her authority to say, "Sorry, you overstayed last time for 2 years, you are refused entry and have a 10-year ban." This happens frequently.

D/S is "duration of status." Her status is Canadian visitor. She stopped visiting a long time ago. Her status was terminated when she stopped visiting.

It is NOT okay for Canadians to live in the US with no visa just because they did not get a I-94 at the border.

[grrrrreat 109]

The ban can begin for prior illegal presence. If she were to leave the US, and try to come back, the CBP agent would be in his/her authority to say, "Sorry, you overstayed last time for 2 years, you are refused entry and have a 10-year ban." This happens frequently.

D/S is "duration of status." Her status is Canadian visitor. She stopped visiting a long time ago. Her status was terminated when she stopped visiting.

It is NOT okay for Canadians to live in the US with no visa just because they did not get a I-94 at the border.

No no no. You are a little confused. Per USCIS memo, unlawful presence doesn't begin UNTIL USCIS or an immigration judge decides you are out of status. No USCIS officer can retroactively decide that you were out of status as of a particular date and start counting unlawful presence. This is explicitly stated in the foreign affairs manual and the most recent USCIS memo on unlawful presence.

Canadian citizens who are not issued I-94s are in "non-controlled status", which means they don't accumulate unlawful presence and are treated EXACTLY like D/S cases. D/S cases also do not accrue unlawful status UNTIL USCIS or a judge determines they are out of status--it can't be retroactive.

Here's the quote from the memo:

"If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to occur on the day after the request is denied. . . It must be emphasized that the accrual of unlawful presence neither begins on the date the status violation occurs, nor on the day on which removal proceedings are initiated."

This is on page 25 of this memo, under the section applying to D/S cases. The very next section says that "non-controlled nonimmigrant" Canadian citizens are treated exactly the same: http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

Canadian citizens are "non-controlled" and can stay in the U.S. as long as they maintain B1/B2 status, meaning they are temporary visitors and not immigrants.

Edited June 29, 2012 by grrrrreat

[JacAng 8]

My experience with border patrol and poe was in there exact words and I had 2 more weeks left before my 6 months was up "if i didnt head north immediately they would arrest me and put me in lockup to be seen by an immigration judge

" Then at the border they just informed me about the legal way of doing things, but that I could have gotten banned for 3 years. The lawyers stance on staying in the US and applying for status was that she would probably have to do a waiver at the time of the interview ...we never got that far so not sure how that worked. After that we just did the I-130 and I visited lots.....

[grrrrreat 109]

My experience with border patrol and poe was in there exact words and I had 2 more weeks left before my 6 months was up "if i didnt head north immediately they would arrest me and put me in lockup to be seen by an immigration judge

" Then at the border they just informed me about the legal way of doing things, but that I could have gotten banned for 3 years. The lawyers stance on staying in the US and applying for status was that she would probably have to do a waiver at the time of the interview ...we never got that far so not sure how that worked. After that we just did the I-130 and I visited lots.....

This makes no sense. You had two weeks left on your status but they made you leave anyway? And threatened to ban you for three years even though you were still in status?

Your lawyer was wrong, you could have adjusted status easily. If you were married to a U.S. citizen overstays never require a waiver.

[jdh 103]

The ban can begin for prior illegal presence. If she were to leave the US, and try to come back, the CBP agent would be in his/her authority to say, "Sorry, you overstayed last time for 2 years, you are refused entry and have a 10-year ban." This happens frequently.

I have to disagree with you on that statement. I would like to see where it happens frequently to Canadians.

The problem with that is that the CBP have no idea when you left the US as a Canadian with no I-94, no stamp, no checking in with them before you leave.

All they have on the majority of Canadian visitors is an entry date....they have no idea if/when you last left and no way to prove previous overstay unless you were at some point caught and put in removal proceedings where overstay was determined by an immigration judge.

That is why Grrrreat is right in that aspect - Canadian visitors being an "non-controlled" group.

Edited June 29, 2012 by jdh

[JacAng 8]

This makes no sense. You had two weeks left on your status but they made you leave anyway? And threatened to ban you for three years even though you were still in status?

Your lawyer was wrong, you could have adjusted status easily. If you were married to a U.S. citizen overstays never require a waiver.

Well at that point it didnt matter if she was wrong, and she wouldnt have known till we were being interviewed the waiver would have been for intent....I was in front of 2 border patrol and they were gonna arrest me if I headed south. I didnt really have a choice but to leave they said I was married to a US citizen and that was enough intent to arrest me. Then at the border they said the same thing and just gave me a lot of options on doing things the right way. Not a whole lot you can do at that point....

[PeterandRobin 3]

I have to disagree with you on that statement. I would like to see where it happens frequently to Canadians.

The problem with that is that the CBP have no idea when you left the US as a Canadian with no I-94, no stamp, no checking in with them before you leave.

All they have on the majority of Canadian visitors is an entry date....they have no idea if/when you last left and no way to prove previous overstay unless you were at some point caught and put in removal proceedings where overstay was determined by an immigration judge.

That is why Grrrreat is right in that aspect - Canadian visitors being an "non-controlled" group.

Surely if you arrived in 2010 and are in the US in 2012 without another entry date then it is not hard to deduce that you have either overstayed or entered since 2010 without inspection. When you leave may not be documented but each entry is.

Anyway, that is all irrelevant as due to the AOS application the OP is now in a period of lawful presence whilst the application is reviewed and adjudicated on.

[grrrrreat 109]

Surely if you arrived in 2010 and are in the US in 2012 without another entry date then it is not hard to deduce that you have either overstayed or entered since 2010 without inspection. When you leave may not be documented but each entry is.

Anyway, that is all irrelevant as due to the AOS application the OP is now in a period of lawful presence whilst the application is reviewed and adjudicated on.

It doesn't matter. For Canadians without I-94s, unlawful presence doesn't begin until the date USCIS or an immigration judge tells the Canadian they are out of status.

[jdh 103]

Surely if you arrived in 2010 and are in the US in 2012 without another entry date then it is not hard to deduce that you have either overstayed or entered since 2010 without inspection. When you leave may not be documented but each entry is.

Anyway, that is all irrelevant as due to the AOS application the OP is now in a period of lawful presence whilst the application is reviewed and adjudicated on.

The point was about CBP not about running into ICE for some reason. If you for some reason ended up in the hands of ICE I would contend that indeed you would end up in deportation process. But the statement was in regards to CBP and a border officer determining you had previously overstayed and as such could not enter. That is what I was referring to...they would have no way of knowing there was a previous overstay.