Flagged at the border, now trying to decide if I should extend my trip

[DGF 730]

I’m sorry if this is in the wrong place!

 

For the past year and a half I have been traveling to the US to visit my husband every other weekend or so and staying for 4 nights each time. We are about 6 months out from my interview (CR1) but that is assuming everything goes smoothly and existing backlogs don’t get worse. 

 

On Thursday I made my usual trip to cross the border. When I got to customs, they knew who I was and said that they were expecting me. It turns out that I have been flagged for frequent travel. The guy warned me that now that I have been flagged the chances of me being denied entry are very high. He said that visiting your spouse isn’t allowed while there is a pending visa, and that if I were denied entry we’d have to start the process from the beginning (I know neither of these are true). He spent a while questioning me and looking at my NOA1 and NOA2, before showing them to his coworker who told him to let me through, which he did. 

 

I am now trying to decide if I should extend my trip until either my interview or I get close to 6 months, whichever comes first. However there are three things that I’m wary about that are preventing me from making a decision:

 

1. If I extend my trip I will be considered a resident for tax purposes under the substantial presence rule. This means I will have to file taxes, possibly before my interview. Will this be a problem either for our application or at my interview? Also, since I don’t have any income, could filing US taxes cause any problems under the new public charge rules? I hope that my husbands income and the fact that I intend on working once I get my green card will be enough to prove otherwise. Lastly, will filing US taxes cause any issues when I file my final Canadian taxes once I have my green card?

 

2. Since I crossed using my NEXUS, I don’t have a stamp in my passport saying when I was admitted until. I checked my i94 online, but since I cross by land the last one I was issued was from the last time crossed via air and expired in June. When I use the site to check my compliance it says I am not eligible to check online. The guy at the border didn’t say anything about giving me a shortened admittance, but is it possible that he did and didn’t tell me? Is there any way I can check my compliance other than online, perhaps by calling CBP?

 

3. We are planning to submit our DS-260 this week. Is it possible to do so while I am in the US? If so, would I include this trip under the section about previous US travel and what would I put as the duration of stay since it is unknown?

 

If I knew that I had a good chance of being able to cross again, especially with the holidays coming up and wanting to spend them with my husband, I would absolutely go back because it’s pretty jarring to have a 5 day trip unexpectedly turn into a ~6 month one. The problem is my ties to Canada are weak (my job is a remote unpaid internship and I live with my parents) so I’m leaning towards extending. I just want to be sure that extending won’t jeopardize our application because it’s absolutely not worth it if it will. Any thoughts?

Edited October 26, 2019 by DGF

[geowrian 22,337]

What they told you is wrong, as you are aware. smh...

 

If you are visiting for 4 days every week, you would already be hitting the substantial presence test for tax purposes.

Spending more time in the US than abroad is a sure fire way to draw attention that you are using your visiting privileges to live in the US. That is not permitted, as you are now finding out.

 

1) The new public charge rule is suspended right now due to an injunction (the old rules still apply, obviously). Filing of US taxes is an IRS issue - it won't impact your visa application. I can't speak to Canada's tax laws, although I would note that if you are spending 4 days a week outside Canada then you may or may not meet their residency requirements (for both taxes and/or provincial health care coverage).

 

2) The I-94 online is supposed to cover your trip, but it's not uncommon for it to be wrong when traveling by land still. There is also the possibility that an I-94 wasn't issued, in which case a Canadian is considered Duration of Status (D/S) which has no limit. But I wouldn't rely on that...if you can, go to a deferred inspection site and find out or have them correct it. I would prefer to know than assume personally.

 

3) Yes. You would include your current trip. I am unsure of what to put for the duration, sorry I will defer to others.

[DGF 730]

50 minutes ago, geowrian said:

What they told you is wrong, as you are aware. smh...

 

If you are visiting for 4 days every week, you would already be hitting the substantial presence test for tax purposes.

Spending more time in the US than abroad is a sure fire way to draw attention that you are using your visiting privileges to live in the US. That is not permitted, as you are now finding out.

 

1) The new public charge rule is suspended right now due to an injunction (the old rules still apply, obviously). Filing of US taxes is an IRS issue - it won't impact your visa application. I can't speak to Canada's tax laws, although I would note that if you are spending 4 days a week outside Canada then you may or may not meet their residency requirements (for both taxes and/or provincial health care coverage).

 

2) The I-94 online is supposed to cover your trip, but it's not uncommon for it to be wrong when traveling by land still. There is also the possibility that an I-94 wasn't issued, in which case a Canadian is considered Duration of Status (D/S) which has no limit. But I wouldn't rely on that...if you can, go to a deferred inspection site and find out or have them correct it. I would prefer to know than assume personally.

 

3) Yes. You would include your current trip. I am unsure of what to put for the duration, sorry I will defer to others.

I visit every other week, so generally I spend 10 days in Canada and 5 days in the US, not including holidays and times when my husband has come to visit me. If my tracking is correct, I will only be 15 days past the 183 days of the substantial presence test if I do decide to extend, not that that matters since over is still over. Although frequent, I have always treated my visits as visits and would never abuse my visiting privileges by using them to live in the US  

1) I'm not too familiar with injunctions, would it be reasonable to expect that it will take so long to resolve that the rule will still be suspended in 6 months or so or should I expect that this will be resolved by that time? Also, I have double checked that I will still meet Canadian residency requirements (especially for health care) and I will even if I do extend my trip. I would go home if I didn't! 

2) I think this is my biggest concern of them all because you're right, I would prefer to know than to assume. After the scrutiny I was under I figure I wouldn't have been admitted if the expired I-94 was an issue, but I do want to be sure before I make my decision. I have never heard of deferred inspection sites but there is one sort of nearby so I will give them a call on Monday and see if they are able to help, thank you!

3) That's what I thought. I guess I could put the full 6 months and then give the correct duration at my interview. It's probably better to over estimate than to under estimate.
 

Thank you for taking the time to answer!

[geowrian 22,337]

41 minutes ago, DGF said:

I visit every other week, so generally I spend 10 days in Canada and 5 days in the US, not including holidays and times when my husband has come to visit me. If my tracking is correct, I will only be 15 days past the 183 days of the substantial presence test if I do decide to extend, not that that matters since over is still over. Although frequent, I have always treated my visits as visits and would never abuse my visiting privileges by using them to live in the US  

1) I'm not too familiar with injunctions, would it be reasonable to expect that it will take so long to resolve that the rule will still be suspended in 6 months or so or should I expect that this will be resolved by that time? Also, I have double checked that I will still meet Canadian residency requirements (especially for health care) and I will even if I do extend my trip. I would go home if I didn't! 

2) I think this is my biggest concern of them all because you're right, I would prefer to know than to assume. After the scrutiny I was under I figure I wouldn't have been admitted if the expired I-94 was an issue, but I do want to be sure before I make my decision. I have never heard of deferred inspection sites but there is one sort of nearby so I will give them a call on Monday and see if they are able to help, thank you!

3) That's what I thought. I guess I could put the full 6 months and then give the correct duration at my interview. It's probably better to over estimate than to under estimate.
 

Thank you for taking the time to answer!

Gotcha. Every other week so it wasn't a matter of staying too much within the US.

 

1) It's impossible to say if or when a new ruling will occur. The court system generally moves slowly and there doesn't appear to be a rush to push an expedite at this time. I would be surprised if this changed by end of year, but it's not impossible. Six months? Probably a ruling IMO but no idea which way that would go.

Yeah, no issue if the visit is every other week.

 

2) Awesome. Please update the thread with how it goes.

 

Best wishes!

[Hawk Riders 814]

On 10/26/2019 at 12:56 PM, DGF said:

I visit every other week, so generally I spend 10 days in Canada and 5 days in the US, not including holidays and times when my husband has come to visit me. If my tracking is correct, I will only be 15 days past the 183 days of the substantial presence test if I do decide to extend, not that that matters since over is still over. Although frequent, I have always treated my visits as visits and would never abuse my visiting privileges by using them to live in the US  

1) I'm not too familiar with injunctions, would it be reasonable to expect that it will take so long to resolve that the rule will still be suspended in 6 months or so or should I expect that this will be resolved by that time? Also, I have double checked that I will still meet Canadian residency requirements (especially for health care) and I will even if I do extend my trip. I would go home if I didn't! 

2) I think this is my biggest concern of them all because you're right, I would prefer to know than to assume. After the scrutiny I was under I figure I wouldn't have been admitted if the expired I-94 was an issue, but I do want to be sure before I make my decision. I have never heard of deferred inspection sites but there is one sort of nearby so I will give them a call on Monday and see if they are able to help, thank you!

3) That's what I thought. I guess I could put the full 6 months and then give the correct duration at my interview. It's probably better to over estimate than to under estimate.
 

Thank you for taking the time to answer!

Something to keep in mind, perhaps, as my spouse and I are also playing this balancing act game...

Substantial presence test accounts for percentages of the past 2 years' time in the US as well as current year (.33 last year, and .16 of 2 years ago). I've already decided 2019 is a married-filing-jointly tax year for us, treating my spouse as a resident alien regardless of the numbers.

 

Be more wary of overshooting the 180 calendar days within the year which are allowed for CAN in US.

And when you have a mix of air and land border crossings, some of which may eclipse the calendar year, CBP employees may cite other inaccurate information at the border 😕 We actually filed a TRIP related to CBP and bad math on their part.   

[Hawk Riders 814]

On 10/26/2019 at 11:02 AM, DGF said:

For the past year and a half I have been traveling to the US to visit my husband every other weekend or so and staying for 4 nights each time. We are about 6 months out from my interview (CR1) but that is assuming everything goes smoothly and existing backlogs don’t get worse. 

 

On Thursday I made my usual trip to cross the border. When I got to customs, they knew who I was and said that they were expecting me. It turns out that I have been flagged for frequent travel. The guy warned me that now that I have been flagged the chances of me being denied entry are very high. He said that visiting your spouse isn’t allowed while there is a pending visa, and that if I were denied entry we’d have to start the process from the beginning (I know neither of these are true). He spent a while questioning me and looking at my NOA1 and NOA2, before showing them to his coworker who told him to let me through, which he did. 

 

If I knew that I had a good chance of being able to cross again, especially with the holidays coming up and wanting to spend them with my husband, I would absolutely go back because it’s pretty jarring to have a 5 day trip unexpectedly turn into a ~6 month one. The problem is my ties to Canada are weak (my job is a remote unpaid internship and I live with my parents) so I’m leaning towards extending. I just want to be sure that extending won’t jeopardize our application because it’s absolutely not worth it if it will. Any thoughts?

addendum:

CBP absolutely absolutely is not interested in B1/B2 visitors coming into the US and then adjusting status.

One of my spouse's visits was footnoted in the passport by CBP: "no EoS, no AoS." 

[DGF 730]

16 minutes ago, Hawk Riders said:

Something to keep in mind, perhaps, as my spouse and I are also playing this balancing act game...

Substantial presence test accounts for percentages of the past 2 years' time in the US as well as current year (.33 last year, and .16 of 2 years ago). I've already decided 2019 is a married-filing-jointly tax year for us, treating my spouse as a resident alien regardless of the numbers.

 

Be more wary of overshooting the 180 calendar days within the year which are allowed for CAN in US.

And when you have a mix of air and land border crossings, some of which may eclipse the calendar year, CBP employees may cite other inaccurate information at the border 😕 We actually filed a TRIP related to CBP and bad math on their part.   

It's the previous years that are pushing me over the line in this case, I'd be fine if I was only counting this year! As for the 180 days in a year, I was under the impression that it was 180 days per trip (of course with the stipulation that if you tried to do two 6 month trips in a row they'd absolutely be suspicious and likely deny you). I've heard of it being interpreted both ways so I should probably confirm which one is correct! Also, what is a TRIP? I've never heard of that. 

 

11 minutes ago, Hawk Riders said:

addendum:

CBP absolutely absolutely is not interested in B1/B2 visitors coming into the US and then adjusting status.

One of my spouse's visits was footnoted in the passport by CBP: "no EoS, no AoS." 

Adjusting status is 100% not an option for us, we're so close to the finish line that it would be pointless. Plus my husband is a dual citizen so our plan b is for him to move to Canada (not as ideal due to his job and most of our combined family being in the US, but at least we'll be together).

 

Good luck with the balancing act! 

[Hawk Riders 814]

21 minutes ago, DGF said:

It's the previous years that are pushing me over the line in this case, I'd be fine if I was only counting this year! As for the 180 days in a year, I was under the impression that it was 180 days per trip (of course with the stipulation that if you tried to do two 6 month trips in a row they'd absolutely be suspicious and likely deny you). I've heard of it being interpreted both ways so I should probably confirm which one is correct! Also, what is a TRIP? I've never heard of that. 

Traveller Redress Inquiry Program

https://trip.dhs.gov/TRIP/

[geowrian 22,337]

1 hour ago, Hawk Riders said:

Be more wary of overshooting the 180 calendar days within the year which are allowed for CAN in US.

56 minutes ago, DGF said:

It's the previous years that are pushing me over the line in this case, I'd be fine if I was only counting this year! As for the 180 days in a year, I was under the impression that it was 180 days per trip (of course with the stipulation that if you tried to do two 6 month trips in a row they'd absolutely be suspicious and likely deny you). I've heard of it being interpreted both ways so I should probably confirm which one is correct! Also, what is a TRIP? I've never heard of that. 

DGF is correct. There is no limit per year in terms of how long one can stay. There are just tax, benefit eligibility, etc. issues + likely not being admitted again if staying too long in the US. But there is no hard limit - it's just good advice to avoid doing so.

 

56 minutes ago, DGF said:

Adjusting status is 100% not an option for us, we're so close to the finish line that it would be pointless. Plus my husband is a dual citizen so our plan b is for him to move to Canada (not as ideal due to his job and most of our combined family being in the US, but at least we'll be together).

Good - entering with intent to adjust status would also be fraud.

[marahm18 19]

On 10/26/2019 at 2:02 PM, DGF said:

I’m sorry if this is in the wrong place!

 

For the past year and a half I have been traveling to the US to visit my husband every other weekend or so and staying for 4 nights each time. We are about 6 months out from my interview (CR1) but that is assuming everything goes smoothly and existing backlogs don’t get worse. 

 

On Thursday I made my usual trip to cross the border. When I got to customs, they knew who I was and said that they were expecting me. It turns out that I have been flagged for frequent travel. The guy warned me that now that I have been flagged the chances of me being denied entry are very high. He said that visiting your spouse isn’t allowed while there is a pending visa, and that if I were denied entry we’d have to start the process from the beginning (I know neither of these are true). He spent a while questioning me and looking at my NOA1 and NOA2, before showing them to his coworker who told him to let me through, which he did. 

 

I am now trying to decide if I should extend my trip until either my interview or I get close to 6 months, whichever comes first. However there are three things that I’m wary about that are preventing me from making a decision:

 

1. If I extend my trip I will be considered a resident for tax purposes under the substantial presence rule. This means I will have to file taxes, possibly before my interview. Will this be a problem either for our application or at my interview? Also, since I don’t have any income, could filing US taxes cause any problems under the new public charge rules? I hope that my husbands income and the fact that I intend on working once I get my green card will be enough to prove otherwise. Lastly, will filing US taxes cause any issues when I file my final Canadian taxes once I have my green card?

 

2. Since I crossed using my NEXUS, I don’t have a stamp in my passport saying when I was admitted until. I checked my i94 online, but since I cross by land the last one I was issued was from the last time crossed via air and expired in June. When I use the site to check my compliance it says I am not eligible to check online. The guy at the border didn’t say anything about giving me a shortened admittance, but is it possible that he did and didn’t tell me? Is there any way I can check my compliance other than online, perhaps by calling CBP?

 

3. We are planning to submit our DS-260 this week. Is it possible to do so while I am in the US? If so, would I include this trip under the section about previous US travel and what would I put as the duration of stay since it is unknown?

 

If I knew that I had a good chance of being able to cross again, especially with the holidays coming up and wanting to spend them with my husband, I would absolutely go back because it’s pretty jarring to have a 5 day trip unexpectedly turn into a ~6 month one. The problem is my ties to Canada are weak (my job is a remote unpaid internship and I live with my parents) so I’m leaning towards extending. I just want to be sure that extending won’t jeopardize our application because it’s absolutely not worth it if it will. Any thoughts?

What border do you typically cross at?

[TOtoVA 4]

On 10/27/2019 at 7:15 PM, Hawk Riders said:

addendum:

CBP absolutely absolutely is not interested in B1/B2 visitors coming into the US and then adjusting status.

One of my spouse's visits was footnoted in the passport by CBP: "no EoS, no AoS." 

Any idea where I can read up on this exact situation? Not pertaining me but, I was trying to advise someone against this recently

[Just Paul 4,595]

1 minute ago, TOtoVA said:

Any idea where I can read up on this exact situation? Not pertaining me but, I was trying to advise someone against this recently

The notation is more like an internal note that they are placing on the visa so she knows they know and have advised her that they suspect she is may to try to AOS.  The enforceability can be an issue from a practical point as we all know situations can change.

[TOtoVA 4]

6 minutes ago, Paul & Mary said:

The notation is more like an internal note that they are placing on the visa so she knows they know and have advised her that they suspect she is may to try to AOS.  The enforceability can be an issue from a practical point as we all know situations can change.

Got it. Thanks!