Canadian Citizen Using Existing I-94 Re-entered US via Land border

[Maple Leaf 0]

Hello Friends,

I have a family of 4 (2 adults; 2 kids) and we are Canadian Citizens. We recently entered the United States on an existing I-94 via the land crossing at Peigan, MT. The officers at CBP scanned our passports let us through with a few questions. After entering, a day or two after, I logged online to check our I-94 status and noted that our existing I-94 for myself, and my two kids had a "valid date until" for 20 days and my I-94 had a valid date until"for 30 days. [Meaning the I-94 expired in this amount of time). I also noticed that the I-94 for my wife showed "not found".

Key Facts of our case:

My children's I-94 expired as of June 10, 2016 and mine expired as of June 23, 2016 (some dates to keep in mind). We entered the U.S as a family on May 21, 2016.

Also, we had an existing I-94 given to us when we flew to the U.S. This is the same I-94 we used to re-enter the U.S via the land border on May 21, 2016.

Immediately noticing this situation and having entered the U.S, I went to nearest CBP Office at a deferred inspection site in Bozeman, MT. I convinced the officer on the phone that I needed his assistance for the reasons stated above. He met with us for an hour and spoke to his supervisor over the phone and informed us that Canadians who enter the U.S via land, ARE NOT ISSUED I-94's. He indicated to me that you have six months from the date of your most recent entry, regardless of what the I-94 states.

Having spoken to a CBP officer we continued with our journey. After a few months we got an opportunity to invest in a business and we decided to change status to an E2 (we have not filed an adjustment of status as of yet). Our lawyer informed us that if a Canadian is issued an I-94 than that trumps what the CBP officer told me that as Canadians you get 6 months from date of recent entry. Now, I agree that I have made an error and assumed that what the CBP officer told me that I have six months and did not follow the date indicated in the I-94. AS a result, now we are deemed to be under what they call "unlawful presence" as the I-94 has expired and we have not filed to keep our status up-to-date. We have also not exceeded the 180 days of unlawful presence so the 3/10 year ban at present does not apply to us.

The only positive part of this story is that my wife's I-94 is showing "not found" meaning that we can assume that she has six months as duration of status....as is given to Canadians with no I-94.

My question to this forum is as follows:

1. What happens now if we apply for a change of status from B2 to E2 (investor visa) requesting the offier to overlook the fact that I overstayed? Will this be approved? Give my specific case and based on the law and legal procedure outlined below: Would this situation, I have described fit under the extra-ordinary circumstances?

LAW:

The regulation in 8 C.F.R. 248.1(b) states that under limited circumstances, the USCIS may exercise nunc pro tunc discretion to approve the change of status application of an alien who failed to maintain his or her previously accorded nonimmigrant status or who files for a change of status after the expiration of his or her previously accorded nonimmigrant status. In order to approve such a change of status application, 8 C.F.R. 248.1(b) requires the applicant or petitioner to demonstrate the following:

1. The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or the petitioner, and USCIS finds the delay commensurate with the circumstances;
2. The alien has not otherwise violated his or her nonimmigrant status;
3. The alien remains a bona fide nonimmigrant; and
4. The alien is not the subject of removal proceedings under 8 C.F.R. 240.

2. If you were in my position what would you do? File the change of status from B2 to E2 and see what comes in the RFE? Or return back to Canada?

3. If an RFE is released and I and my children are listed dependents on my wife's E2 application, wherein she is the primary applicant? What justification and on what basis would change of status be approved for me and my kids (as we have an expired I-94) and what will I have to show. based on the law and my case, is this possible or not?

4. My other concern is that my family F4 petition is still active and the priority date may open in 2 and half years time. So, if I am currently under unlawful presence for 3-4 months but under the 180 days.....is there any impact when i decide to file for I-485 adjustment to permanent resident application in few years time? I have not exceeded the 180 days unlawful presence?

I am not a lawyer, i have spent days on the web finding answers and I am struggling to find answers that have merit. I am also having some difficulty trusting the advice of my lawyer and I need some good guidance. I am happy to go back to Canada if that would be better but given what has transpired I feel that may be I have a chance if I apply for change of status.

I wanna thank you for reading this, please share your suggestion with me. Your help is greatly appreciated. God Bless!

[Maple Leaf 0]

Hello Friends,

I also wanted to add for the benefit of those that are not aware: I called the CBP officer SUpervisor and when I explained to him that i am on an existing I-94 that has now expired, he indicated to me that Canadians entering via LAND border are automatically given 6 months, their status is inferred meaning it is not written down and that the I-94 does not matter.

However, the USCIS position on this matter based on what my lawyer has told me is that when an I-94 is issued to a Canadian, the I-94 trumps what anyone says or does. This is a legal gray area in the words of my lawyer. We are stuck in it. I have called the Canadian Embassy in Dallas to get some assistance, but I was told it is a personal situation, you are on your own, in short.

What should I do? Please provide some suggestions and based on my first post. I wanted to add this in case there is another fellow Canadian stuck in a similar situation.

[Penguin_ie 5,993]

***** Moving from Introductions to Tourist Visa forum as best suited to Canadian visitor questions. ******

[Boiler 45,535]

I have certainly seen cases where Canadians have been given I 94 and less time than the usual 6 months.

You have to be in status to change status so that option is out.

Return and apply for an E2 Visa seems the obvious solution.

[txl344655 7]

What does "We recently entered the United States on an existing I-94" mean?

Did you show it to the CBP officers when you entered the US via land crossing? Wouldn't the I-94 expire when you exited the US after prior to the land entry, but after the your flight into the US?

[Boiler 45,535]

I94 does not always expire.

[txl344655 7]

I94 does not always expire.

I'm uncertain as to what this means. If the OP left the US within the I-94 authorized period and re-entered, wouldn't the clock start afresh? How does one know whether the I-94 expired or not?

[Boiler 45,535]

https://www.murthy.com/2013/02/11/contiguous-territory-rule-permits-reentry-from-canada-or-mexico/

[jan22 3,056]

You cannot change your status if you are out of status. By USCIS standards, there are no extraordinary circumstances in your case, nor was there any part of it that was beyond your control. While an E2 visa does not require you to maintain an actual residence to which you plan to return, you do have to demonstrate that you do not intent to immigrate -- at this time -- and will leave the US at the end of your E2 status, unless you have been approved for a different status. You should leave the US before you get anywhere close to the 180 days; the longer you wait, the more questions will be raised about qualifying for E2 status.

You have been travelling around the US for several months, making your ties to Canada seem weak. You want to stay and start running a business -- that makes it seem as if there is absolutely nothing for you in Canada that you need to take care of before you stay in the US long-term. Again, it calls into question your non-immigrant intent. Why complicate your life? Go home to Canada, organize things there, and enter the US in the proper status. Far less questions and less hassles.

[Teddy B 17,252]

I tend to agree with the CBP that the clock started over for 6 months when you re-entered by land as that is the normal procedure for Canadians. If you were a citizen of another country other than Canada then you would more than likely be on the existing I-94 or would have been given another I-94.

That being said, I also agree with jan22 that you have been spending a lot of time in the US with seemingly few ties to Canada and that puts questions on your non-immigrant intent. The only way you can be certain to be safe on all fronts is to return to Canada, get your affairs in order and then enter the US under your new status.

[KierenHby 899]

With an expired i94, AOS is out.

If you entered on a B2, you surely have a life in.. and ties to.. Canada still. Your family must've entered with at most 6-mos worth of personal belongings, with the assumption your kids return to Canada to get back to school (assuming school-age). You already had intent with the pending F4.

Best to return to Canada with your family and do IV the legal way.