Visiting US after overstaying on tourist visa

[MAT126 1]

I am a Canadian citizen and I have traveled to the US from Canada on and off for the past 7 years. I finished school a few years ago and went to the US to spend time with friends and celebrate graduating. I got into a relationship in the states and ended up overstaying. My passport was also stolen during my stay which was another reason I overstayed. I just recently came back to Canada somewhat emergently when a relative passed away. I had no problems re-entering Canada. My issue is that I love my boyfriend and want to immediately return to him. I never had an official "visa," as I entered as a visitor. My total time in the US since last being in Canada was 2-2.5 years. My question is, am I automatically banned from re entering the US? Is there a way to check? Is there a chance that I will be permitted to enter the US without any issues? I do know that ultimately I will need a fiancé or student visa to legally stay in the US longer than 6 months. I am just wanting to get back to my boyfriend after traveling back to Canada for my relatives funeral. I am unsure if I should book a plane ticket or attempt to cross via land. Please help!

[Crazy Cat 43,354]

  On 6/13/2017 at 7:43 PM, MAT126 said:

Is there a chance that I will be permitted to enter the US without any issues?

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You were in "overstay" status for 2 years after entering the US as a visitor from Canada, is that correct ? 

[geowrian 22,338]

  On 6/13/2017 at 7:43 PM, MAT126 said:

My question is, am I automatically banned from re entering the US?

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Yes. You incurred a 10 year bar the moment you left due to overstaying in the US by at least 1 year. You will not be permitted into the US until the bar has passed or has been successfully waived.

 

This bar can be overcome via a waiver. Waivers are not cheap to file (close to $1000 + attorney fees if any), and take 6 or so months for adjudication on average (some as soon as 3-4 months, some as long as 12 or so months). For a K-1 (fiance) or CR-1/IR-1 (spousal) visa, this would be an I-601 waiver.

 

[MAT126 1]

  On 6/13/2017 at 8:05 PM, missileman said:

You were in "overstay" status for 2 years after entering the US as a visitor from Canada, is that correct ? 

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Yes. I lost my passport and didn't know what to do for a time. 

  On 6/13/2017 at 8:11 PM, geowrian said:

Yes. You incurred a 10 year bar the moment you left due to overstaying in the US by at least 1 year. You will not be permitted into the US until the bar has passed or has been successfully waived.

 

This bar can be overcome via a waiver. Waivers are not cheap to file (close to $1000 + attorney fees if any), and take 6 or so months for adjudication on average (some as soon as 3-4 months, some as long as 12 or so months). For a K-1 (fiance) or CR-1/IR-1 (spousal) visa, this would be an I-601 waiver.

 

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Is it worth attempting to cross, just in case it is somehow overlooked? 

[Mollie09 1,543]

  On 6/13/2017 at 8:21 PM, MAT126 said:

Yes. I lost my passport and didn't know what to do for a time. 

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For how long? A quick Google search would tell you what to do.

[MAT126 1]

  On 6/13/2017 at 8:23 PM, Mollie09 said:

For how long? A quick Google search would tell you what to do.

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I should definitely not have waited so long. 

[millefleur 5,050]

Losing your passport will not fly as an excuse for an overstay. It seems your only option now is the waiver.

 

I mean, go ahead and try to cross the border and see if they don't notice. But don't be shocked if you are denied entry.

[geowrian 22,338]

  On 6/13/2017 at 8:21 PM, MAT126 said:

Is it worth attempting to cross, just in case it is somehow overlooked? 

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The 10 year bar is automatically assessed upon departure. Hoping they won't notice with electronic records just isn't a practical thing. Even if it was, I would not suggest trying to get around the INA or CBP's procedures - you know overstaying was not permitted and now know that overstaying by 1 year or longer incurs a 10 year bar. The legal course is to seek a visa, get refused for a waivable inadmissibility (i.e. the 10 year bar from overstay), then apply for a waiver. This has the best chance of success (IMHO) with an immigrant visa: CR-1/IR-1 or K-1 (technically non-immigrant but permits the same I-601).

[Mollie09 1,543]

  On 6/13/2017 at 8:21 PM, MAT126 said:

 

Is it worth attempting to cross, just in case it is somehow overlooked? 

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Even if it was somehow overlooked, it wouldn't be erased and would come back to bite you in a very big way later.

[MAT126 1]

  On 6/13/2017 at 8:51 PM, geowrian said:

The 10 year bar is automatically assessed upon departure. Hoping they won't notice with electronic records just isn't a practical thing. Even if it was, I would not suggest trying to get around the INA or CBP's procedures - you know overstaying was not permitted and now know that overstaying by 1 year or longer incurs a 10 year bar. The legal course is to seek a visa, get refused for a waivable inadmissibility (i.e. the 10 year bar from overstay), then apply for a waiver. This has the best chance of success (IMHO) with an immigrant visa: CR-1/IR-1 or K-1 (technically non-immigrant but permits the same I-601).

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I very much appreciate all of your advice. You suggest "seeking a visa" - do you mean attempting to enter the US on a "tourist visa"? Canadians generally don't obtain actual visa's to enter. Assuming I get turned away, I could then apply for a waiver. Or are you suggesting that I apply for an actual visa, such as a student visa or fiancé visa? 

[Seth And Quynh 77]

why didn't you go to your embassy and get a new passport? it's not hard

[Boiler 46,770]

Did not need a Passport to go home, Canada can not refuse entrance to a Citizen.

 

Most unlikely you will be allowed back in anytime soon, you said you just got home and had been in the US for 2 years.

[f f 725]

you won't get a tourist visa to go back to live with your boyfriend. apply for k1 get denied and file for waver.

 

or buy this house it is technically in both the us and Canada so no visa is needed.

http://m.torontosun.com/2017/06/10/for-sale-cross-border-home-lets-you-live-in-canada-and-us-at-the-same-time

[NYCruiser 423]

  On 6/14/2017 at 2:04 PM, MAT126 said:

I very much appreciate all of your advice. You suggest "seeking a visa" - do you mean attempting to enter the US on a "tourist visa"? Canadians generally don't obtain actual visa's to enter. Assuming I get turned away, I could then apply for a waiver. Or are you suggesting that I apply for an actual visa, such as a student visa or fiancé visa? 

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If you go to the USA State Dept site for Visas they will tell you that you need a visa for any 'immigration issue'. Therefore you apply for a Visitor Visa, explaining that you overstayed for 2 years, get a denial, then file for a waiver. Or file a K1, get a NOIR, then a I-601.

Either way, it will be very expensive. I would not go to the land or air/sea crossing as they have the records. Something sounds weird here...you lost your passport then how did you enter Canada? Sounds like you know what the law was and you were trying to skirt it?

 

[geowrian 22,338]

  On 6/14/2017 at 2:04 PM, MAT126 said:

I very much appreciate all of your advice. You suggest "seeking a visa" - do you mean attempting to enter the US on a "tourist visa"? Canadians generally don't obtain actual visa's to enter. Assuming I get turned away, I could then apply for a waiver. Or are you suggesting that I apply for an actual visa, such as a student visa or fiancé visa? 

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Correct. You are ineligible to travel without a visa now, so you would need to seek an actual visa. This can be a tourist visa, albeit that would be quite difficult (virtually impossible)  to obtain IMHO...past overstay + US girlfriend will create a strong case for believing you will overstay again and/or for a 214b denial (immigrant intent). The best chance, as noted before, is with a  K-1 (fiance) visa, or CR-1/IR-1 (spousal) visa. It would still need the waiver, but the approval rates for only an overstay with an immigrant visa are quite good.

 

That's my suggestion anyway.

 

  On 6/14/2017 at 3:27 PM, NYCruiser said:

Something sounds weird here...you lost your passport then how did you enter Canada?

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You don't need a passport to return to Canada as a Canadian citizen. They cannot deny him once they establish his identity and nationality (and there are ways to do so without the passport).

Edited June 14, 2017 by geowrian