I-485 History of Visa Overstay

[CanadianDoc 0]

Hello, I'm about to file my I-485 (primary applicant) as well as my partners I-485 as a dependent. Employment based. It seems like my partner accidentally overstayed their prior visa.  When completing their employment history, we realized that they overstayed by about 14 days in between TN visas. They left their prior job in late May 2024 after being on a TN visa for 3 years. We thought they had 60 days to re-enter on their new TN visa for their new job. They successfully flag pole tapped Canada (we are Canadian) at the end of July 2024, just barely within 60 days, and they have since been working on their new TN visa. They have been in and out of the US multiple times since without issues.

 

However, when reviewing their employment history for the I-485 we now realize that in between the TN visas, their prior I-94 clearly stated authorized stay until July 10th and passport stamp showed TN expiration confirmed the timing. So technically they should have left the US July 10th until they re-entered 14 days later. Unless I misunderstand this, it seems this was unlawful?

 

I'm trying to figure out how to explain this on the I-485 under part 14 aka additional information. I checked "yes" to the section 9, page 21, item 76 that asks "have you ever been unlawfully present in the US after expiration of period of stay authorized by Department of Homeland Security". This is their 3rd or 4th TN visa over the last 10 years with no other prior overstays or issues. Unfortunately switching jobs happened to align with the 3 year timing of end of the TN and thus the authorized stay.

 

I was likely going to talk to an attorney about it (haven't used one yet for the I-485 and my employer has the i-140 ready to concurrently file) but just wanted to see if anyone had other advice or experience with this to limit the chances of denial. In part 14, I just stated the facts about the overstay and it being unintentional....per some other advice I saw online.

 

Thank you

Edited January 22 by CanadianDoc

[Demise 1,383]

Own up to it and your partner will be fine.

245(k) covers cases like this for employment-based adjustment of status: Essentially it allows one to adjust as long as they didn't violate their status for more than 180 days since last entry and essentially wipes out prior overstays as long as they don't add up to a re-entry ban (180+ day overstay).