Canadian citizen, immigrant visa to the USA and some issues

[Ontarkie 14,501]

Canadian's with d/s are not seen often on these forums and when we do the results are not what is expected. Please come back with an update after her interview. 

[mrandmrsBRS 116]

Reading stuff like this really grinds my gears. People that want to immigrate legally have to wait months if not even years to be with their loved ones. Then there are people that give two poops *shaking my head* 

[mushroomspore 3,044]

19 minutes ago, mrandmrsBRS said:

Reading stuff like this really grinds my gears. People that want to immigrate legally have to wait months if not even years to be with their loved ones. Then there are people that give two poops *shaking my head* 

You're not the only one. What's mind-boggling to me is the refusal to acknowledge that immigration laws were clearly violated here. Is there a chance the overstay and unauthorized work will be "forgiven"? Yes but it's not guaranteed. Even for foreigners who get married to USC's, they're advised to file adjustment of status ASAP to avoid overstay. For most of THOSE cases, overstay isn't a big deal. But if someone overstays for a really long time while married to a USC because they don't take their adjustment of status seriously and has an attitude of, "Well who cares, I'm not gonna get in trouble", that's not necessarily helpful to their case either. With immigrant petitions, they're looking for characters of morality and ethical behavior in addition to all the legal circumstances. Overstaying for TWELVE years after a TOURIST visa? I mean, come on.

[acidrain 325]

11 minutes ago, Ontarkie said:

Canadian's with d/s are not seen often on these forums and when we do the results are not what is expected. Please come back with an update after her interview. 

Just curious Ontarkie with d/s cases has accrued presence been overlooked in the past by Montreal?

 

I studied various Canadian threads for how much time one could spend in the US during the process. Generally Canadians who accrued more than 6 months had issues. There was a Canadian who got an extension (past 6 months) but wound up having all sorts of problems at the interview. I can't for the life of me find the thread. When reading the consulate reviews people who spent a lot of time in the US are asked whether it was more than 6 months. There has to be a reason they ask the question.

[Ontarkie 14,501]

1 minute ago, acidrain said:

Just curious Ontarkie with d/s cases has accrued presence been overlooked in the past by Montreal?

 

I studied various Canadian threads for how much time one could spend in the US during the process. Generally Canadians who accrued more than 6 months had issues. There was a Canadian who got an extension (past 6 months) but wound up having all sorts of problems at the interview. I can't for the life of me find the thread. When reading the consulate reviews people who spent a lot of time in the US are asked whether it was more than 6 months. There has to be a reason they ask the question.

That is what I remember reading too.  I was trying to find a thread on one member who ended up with a ban. With all the server changes I can't seem to find it. It's been years so I don't even remember who the member was.  When searching for it I did come across a news article from years ago saying bans now apply, but it wasn't anything official. I will keep digging when I get a chance. 

[mrandmrsBRS 116]

Yes! And they don’t seem to care AT ALL. It makes me so so mad. I'm currently removing conditions and I am a nervous wreck because it’s yet another long process and it seems to be getting longer and longer. And illegal immigrants are the first ones to complain about the system etc

[KKira 1]

On 7/20/2018 at 2:36 PM, Ontarkie said:

Canadian's with d/s are not seen often on these forums and when we do the results are not what is expected. Please come back with an update after her interview. 

 

Hello, 

 

I haven't been here for a year, so just a few words about what has happened so far - maybe it will be useful for someone: 

 

During the interview my sister was told that she had overstayed her visa and she would be barred from going to the USA for 10 years. My sister gave the consular official printouts with everything I had posted here (rules, decisions etc.). The consular official was more shocked than surprised and said she had never heard about anything like that. She called another person and they started looking at the papers. The second consular was older and she confirmed that my sister was right and the ban does not apply to her. The younger officer was mad and claimed that my sister  ** for sure knew she was going to stay and work**  and she should inadmissible (misrepresentation); the older one said that there is no proof someone **for sure** was going to do something and for those admitted for 'd/s' there is no ban for unauthorized work. She added that now the border officers CAN issue a 6months visa and sometimes they exercise their ability to do it but years ago Canadians were admitted without a stamp. 

 

So the younger consular officials may not know about the loophole but seems like the old ones know exactly what is going on. 

 

After 3 weeks my sister got her passport back, and came to the USA with no problems. 

[KKira 1]

On 7/20/2018 at 3:15 PM, acidrain said:

Just curious Ontarkie with d/s cases has accrued presence been overlooked in the past by Montreal?

 

 

Yes. Many times. 

[Ontarkie 14,501]

Thank you for the update, this is exactly the kind of update we need on here. 

[KKira 1]

On 7/20/2018 at 3:15 PM, acidrain said:

 

I studied various Canadian threads for how much time one could spend in the US during the process. Generally Canadians who accrued more than 6 months had issues. There was a Canadian who got an extension (past 6 months) but wound up having all sorts of problems at the interview. I can't for the life of me find the thread. When reading the consulate reviews people who spent a lot of time in the US are asked whether it was more than 6 months. There has to be a reason they ask the question.

If one got a stamp with the "B2" mark and/or given/issued I-94, then s/he is admitted for 6 months. 

Otherwise, the rule is as follows: 

DOS CABLE – CANADIANS AND UNLAWFUL PRESENCE 

Visas
E.O. 12958: N/A
Tags: CVIS

Subject: Advisory Opinion: INA 212(a)(9)(B) and Canadians

Ref: (a) Montreal 1497, (b) Victars E57819, (c) 97 State 23545, (d) State 60539

1. Montreal’s Reftel asks if the unlawful presence inadmissibilities, imposed by INA (a)(9)(B)1 and 2, apply to Canadians, and Commonwealth Citizens Resident in Canada, who enter the United States following inspection by and INS officer, but have received neither a visa nor an I-94.
2. The INS General Counsel’s office has informed VO that, a Canadian, or Commonwealth Citizen Resident in Canada, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J.

[geowrian 22,338]

Just now, KKira said:

1. The INS General Counsel’s office has informed VO that, a Canadian, or Commonwealth Citizen Resident in Canada, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J.

A couple notes on the above:

1) INS has not existed in almost 2 decades.

2) The rule surrounding F/J individuals admitted as D/S has changed. They now accrue unlawful presence once their SEVIS record is terminated.

[KKira 1]

18 hours ago, geowrian said:

A couple notes on the above:

1) INS has not existed in almost 2 decades.

2) The rule surrounding F/J individuals admitted as D/S has changed. They now accrue unlawful presence once their SEVIS record is terminated.

1) correct, but this is the rule that has not been changed or amended yet and the consular officials should follow it

2) incorrect,  but if I am wrong, please provide the source. 

Judge Loretta Briggs blocked the changes the Trump Administrations wanted to put in effect as of August 2018. So far nothing has been changed and the F,J,M visa holders do not accrue unlawful presence once their Sevis is terminated. 

On May 3, 2019, Judge Loretta C. Briggs of the United States District Court for the Middle District of North Carolina entered a nationwide preliminary injunction against the implementation of the new unlawful presence rules discussed in USCIS PM-602-1060 and USCIS PM-602-1060.1. Guilford College v. McAleenan, 1:18CV891 (M.D. N.C. 2019). The plaintiffs made several claims against the validity of the policy, including that it violated the Administrative Procedures Act (APA), violated the INA, was arbitrary and capricious, and violated Due Process protections. The case will continue to be litigated while the preliminary injunction remains in place.

 

 

From the judge's option:  'The motion is GRANTED in that the Court hereby enjoins implementation, in all applications, of the memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” issued by Defendant United States Citizenship and Immigration Services on August 9, 2018 and bearing the file number PM-602-1060.1, as well as the memorandum with the same title issued on May 10, 2018 and bearing file number PM-602-1060, until further order of this Court. '

Edited August 25, 2019 by KKira

[KKira 1]

18 hours ago, Ontarkie said:

Thank you for the update, this is exactly the kind of update we need on here. 

Maybe someone will need it in the future  

[geowrian 22,338]

23 minutes ago, KKira said:

2) incorrect,  but if I am wrong, please provide the source. 

Judge Loretta Briggs blocked the changes the Trump Administrations wanted to put in effect as of August 2018. So far nothing has been changed and the F,J,M visa holders do not accrue unlawful presence once their Sevis is terminated. 

On May 3, 2019, Judge Loretta C. Briggs of the United States District Court for the Middle District of North Carolina entered a nationwide preliminary injunction against the implementation of the new unlawful presence rules discussed in USCIS PM-602-1060 and USCIS PM-602-1060.1. Guilford College v. McAleenan, 1:18CV891 (M.D. N.C. 2019). The plaintiffs made several claims against the validity of the policy, including that it violated the Administrative Procedures Act (APA), violated the INA, was arbitrary and capricious, and violated Due Process protections. The case will continue to be litigated while the preliminary injunction remains in place.

 

 

From the judge's option:  'The motion is GRANTED in that the Court hereby enjoins implementation, in all applications, of the memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” issued by Defendant United States Citizenship and Immigration Services on August 9, 2018 and bearing the file number PM-602-1060.1, as well as the memorandum with the same title issued on May 10, 2018 and bearing file number PM-602-1060, until further order of this Court. '

Yes, there is currently a temporary injunction on that rule change. Individuals who had their SEVIS record terminated after the cutoff but before this ruling are still considered to have accrued unlawful presence, although no new unlawful presence is being accrued while the case goes through the courts.

 

The point was that comparing Canadian D/S due to no I-94 to a student's D/S would not be recommended as the latter is in flux.

[SusieQQQ 11,587]

Yeah not sure why the administration goes on about illegal immigrants and a wall when people like this happily abuse the system knowing there are no real consequences for doing so.

Edited August 25, 2019 by SusieQQQ