Canadian citizen, immigrant visa to the USA and some issues

[KKira 1]

13 minutes ago, SusieQQQ said:

So it is totally undisputed that she violated the terms of her status then.

If you look at my posts above, there are quotes from lawyers' websites - they all claim that adjustment of status is different from consular processing and they all confirm the following: 

 

The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing.  by Heather Pool, Esq

 

[KKira 1]

1 hour ago, SusieQQQ said:

Well if you’re right, it’s just breathtaking that someone can live and work illegally for 13 years in the US and face no negative consequences after gaming the system the way you suggest. Makes you understand some of the anti immigrant sentiment that hurts the rest of us too. 

Let me tell you that A LOT OF f or J visa holders stay over here for years, work, pay taxes and come back with immigrant visas. And I am sure I am right because the USCIS just announced changes for this group of visa holders as of August 8.  They also confirmed that if a Canadian citizen was not issued I-94, his illegal stay will start counting as of August 8 or 9. 

[Boiler 46,025]

1 hour ago, KKira said:

I personally know a lot of F or J visa holders who were here for a few years, worked, paid taxes, were sponsored, came back to their native countries and were issued immigrant visas. My question is more about the previous unlawful presence vs having a Canadian passport now. 

Soundsike the ban for the first overstay has expired

[KKira 1]

1 hour ago, missileman said:

I was just thinking exactly the same thing.........come to the US as a tourist, overstay, work illegally for years..........misrepresentation of purpose of "visiting"?  smh....

Only Canadian citizens could have come as tourists, F visa holders to students (or former students or their spouses/children), J - work and travel, au pairs, trainees etc. 

Edited July 19, 2018 by KKira

[Crazy Cat 42,209]

1 minute ago, KKira said:

Let me tell you that A LOT OF f or J visa holders stay over here for years, work, pay taxes and come back with immigrant visas. And I am sure I am right because the USCIS just announced changes for this group of visa holders as of August 8.  They also confirmed that if a Canadian citizen was not issued I-94, his illegal stay will start counting as of August 8 or 9. 

What was the stated purpose for the entry in which she worked in the US?

[KKira 1]

1 minute ago, Boiler said:

Soundsike the ban for the first overstay has expired

Thanks a lot. That is the main issue if the first ban was waived (by the waiver) or has expired... 

[Boiler 46,025]

1 minute ago, KKira said:

Thanks a lot. That is the main issue if the first ban was waived (by the waiver) or has expired... 

The waiver was for a non immigrant visa, D3

[KKira 1]

1 minute ago, missileman said:

What was the stated purpose for the entry in which she worked in the US?

They did not even ask her any questions as she came to the US  a few times since she obtained a Canadian passport. 

When she applied for a visa (and waiver) she had a Russian passport, she stated she was coming to see her newborn godchild (and that was correct, she just stayed for a few days - mostly 5-7 days), then she came for baptism etc. When she was travelling with Canadian passport she had only questions about alcohol and cigarettes - if she bought any and if so, how much. 

[KKira 1]

2 minutes ago, Boiler said:

The waiver was for a non immigrant visa, D3

Yes. 

Now, how is the ban from 2000 related to her immigrant visa? She was not supposed to come to the States for 10 years, she received a waiver - she came here several times with the waiver/B2visa so does it mean the waiver forgave her illegal stay for any kind of visa incl. immigrant visa? 

Or the first ban has expired - but she was in the US? 

[Boiler 46,025]

2 minutes ago, KKira said:

Yes. 

Now, how is the ban from 2000 related to her immigrant visa? She was not supposed to come to the States for 10 years, she received a waiver - she came here several times with the waiver/B2visa so does it mean the waiver forgave her illegal stay for any kind of visa incl. immigrant visa? 

Or the first ban has expired - but she was in the US? 

A D3 is just for non immigrant visas and applies just for that visa application.

[KKira 1]

22 minutes ago, Boiler said:

A D3 is just for non immigrant visas and applies just for that visa application.

I think I have just found an answer: yes, you are right, but because my sister was admitted to the USA and she did not occur unlawful presence (Canadian citizen without I-94), her 10 years ban was running when she was in the USA. 

 

In 2006 and 2009, USCIS Chief Counsel issued opinion letters specifically stating that the §212(a)(9)(B) inadmissibility period will “continue to run” for an alien present in the U.S. subsequent to the departure that triggered the period of inadmissibility where: 1) He is paroled or lawfully admitted as a nonimmigrant under §212(d)(3); and 2) He has not (subsequent to the departure) returned to or remained in the U.S. unlawfully since his parole or 212(d)(3) admission.

 

 

Since Congress included no similar language in §212(a)(9)(B), this leads directly to the conclusion, based on basic rules of statutory construction, that an alien may “serve” the three or ten-year “sentence” within the U.S., provided he was inspected/ admitted or paroled at the time of last entry, even if he did not first receive a §212(d)(3) waiver or a similar form of advance permission to reapply for admission.

 

[Diane and Chris 651]

1 hour ago, SusieQQQ said:

Makes the rest of us who bother to do everything right look like total idiots, huh?

It’s very frustrating to say the least. It’s ridiculous!  We wait and wait and do things the right way only to be slapped in the face with all this illegal immigration. Why can’t people just do it the right way?  It’s not fair to us. 

[acidrain 325]

If she had an immigrant petition at the same time she was crossing the border as a tourist it may be an issue. A tourist B-2 visa is for travel purposes not to immigrate or work. It is against the law to cross the US border with the "intent to immigrate". Will the consulate care? I guess your sister will find out at the interview.

 

The I-94 should be in the system but there are some cases the crossing does not show up. This can be due to the border agent not properly logging it or some other internal error. If there is a record it will say whether there was a time limitation or D/S (duration of status). If there was a time limit (e.g. B2 visa with 10 year limit) then your sister has overstayed.

 

Did your sister only receive the B-2 visa or did she receive any other one that allowed her to work or go to school?

Edited July 19, 2018 by acidrain

[Boiler 46,025]

4 hours ago, KKira said:

We met 4 lawyers: conclusion: 1 of them say she is good to go, 2 others say 'no', 1 said: "It's a good question". 

 

I am with Its a good question, please let us know how the interview goes.

[geowrian 22,338]

4 hours ago, SusieQQQ said:

Also I presume she’s going to be subject to that new policy about d/s? Isn’t the effective date pretty soon now?

That policy only applies to F/J/M visa holders. The lack of accrual of unlawful presence for the purposes of an unlawful presence bar for a Canadian not issued an I-94 is still in effect. That said, they tend to issue an I-94 to Canadians much more often now.

 

Interesting case...could go either way. Let us know how it goes.