My Fiance and Daughter tried to enter the US yesterday. He was turned away at the US boarder, we still aren't sure why. He recieved this paper work:

Is he banned from the US? Will this effect our k-1 visa when we mail it?

It appears that he overstayed more than 180 days in 2006. If that's true, he has a 3 year ban. Yes it will effect the K1. You will either have to be approved for hardship waiver or wait for the 3 years to expire.

The first document says that your fiance had previously arrived in the US on 6/26/06, and did not leave until 4/14/07.

Is that an overstay? If so, that is your problem, and not a small one.

I know nothing of these type situations but wasnt he himself aware of the time limits he had already stayed at sometime in the past 06/07

If he is banned shouldn't they tell him he is? They give him no information just make him sign papers and told him "he couldn't get on the plane today" and that's it.

If we got married would it effect us applying for a k-3?

I am no expert but i would say when your faced with ANY legal documents and dealings with Immigration Officers at Airport or elsewhere I would say Seek Good Advice from an Immigration Attorney they are far more experienced on these kinda things.

Good Luck and don't lose faith

Michelle

Same effect. You first need to determine if there was an overstay of more than 180 days. If there was, any visa will be denied during the ban period. Waivers of inadmissibility can be granted for hardship, but not until after the visa application has been denied. If the overstay was less than 180 days a waiver should not be required and the visa may be granted.

Yes, it would affect a K-3 as well. The ban supersedes any visas - unless you get a waiver for the specific ban. You can apply for the waiver, I believe, after the K-1 is denied. You would do well to consult with a knowledgeable Immigration lawyer.

If its a (true) ban then it wouldnt matter if married or single, just get down to the true reason and go from there to know which step is necessary next

BTW: Overstay days are cumulative. If you overstay once for 60 days and return, then overstay 121 days on a subsequent visit, the total 181 days will trigger a ban.

Is there anyone I would be able to call with this case number or anything and ask if it was a ban or just a denial to enter yesterday?

Hopefully zyggy will happen by...he would be one of the most knowledgeable on this site

They should have stamped something in his passport that gives a reason. The reason may be "7A1 exclusion" or something like that, but it also might list a specific reason. Take a look at the stamp.

My wife got one of these. There were specific instructions on the bottom telling her (and me) that she was not allowed into the US until she had a visa in hand.

If you didn't go before a judge in an actual immigration hearing, it's kind of like a warning. If you had gone before a judge, then you would be in a lot more trouble.

That particular CBP agent, and the officials at the US Embassy in Toronto both told us that it should not have any effect on her K-3 application as long as she doesn't attempt to circumvent its instructions before the visa is issued.

Eric

on the k-3 visa you applied for it didn't effect it?

no there in no stamp in his passport.

Sorry if I am being a pest. I couldn't figure out how to edit my post's either. I did a some searching on the internet does anyone know the different between the 212 (a) (7) (A) (i) (I) exclusion ground and the 212(a)(7)((i) exclusion grounds?

Immigrants
According to INA §212(a)(7)(A)(i), any immigrant who, at the time of application for admission:

who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Immigration and Nationality Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the INS regulations, or whose visa has been issued without compliance with the provisions of the Immigration and Nationality Act, is excludable.

A waiver is available under INA §212(k) where the Attorney General is satisfied that the exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant's application for admission.

Nonimmigrants

Under INA â•–212(a)(7)((i), any nonimmigrant who:

is not in possession of a passport valid for at least six months from the date of expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to some other country during such period; or is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission is excludable.

A general waiver is authorized under INA â•–212(d)(4):

on the basis of unforeseen emergency in an individual case;

on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having common nationality with such nationals (Canadian citizens and landed immigrants of Canada having British commonwealth citizenship are therefore exempt from visa and passport requirements except in the case of K-1 and E-1/E2 nonimmigrant visas); or

in the case of aliens proceeding in immediate and continuous transit through the United States pursuant to landing agreement contracts entered into by common carriers.
A waiver is also authorized for visitors to Guam and certain nationals entering as visitors under the Visa Waiver Pilot Program.

Isn't a VWP allowed period of stay = 6 months? If that is so, then the OP's fiance had an overstay of less than 4 months (Dec 27, 2006 to April 14, 2007). As such, the fiance is not yet subject to a 3year ban. However, his overstay means he can no longer avail of the VWP to enter the US.

I don't know what the implications would be on a subsequent K1 or K3 application but a consultation with a good immigration lawyer should be considered.

I don't think this guy needs a waiver either. But he's lost his entry privileges without a visa.

Canadians don't have the VWP, but they can stay six months.

Moving this to waivers for discussion and here's a linkie:

http://64.233.169.104/search?q=cache:qI3Ui...;cd=3&gl=us

Thank you guys so much! We think we are just going to go ahead and do the k-3 visa instead. This means he can still get it without problems right?

You may want to do a little research first, whether the K-3 is what you want to choose. There have been some instances in which the K-3 visa petitions have been canceled in favor of the underlying I-130 (which is the petition you file first, and it is the immigrant visa petition). Please look at the guides here, and ask a questions on the K-3 forum. People there may be able to better guide you as to which visa is the most fitting for you.

Good luck,
-P

You should take your copies to an immigration attorney for a final opinion. We aren't lawyers - all we do is research. Talk to someone who can tell you for sure.

At that time you can also discuss visa options with your lawyer.

I have a question regarding the overstay. Is the 180 days over the course of one calendar year, or over 12 consecutive months? My husband and I have always been conservative in this regard-choosing to look at 12 consecutive months. With multiple visits, it's harder to keep track. But, with one single visit, it is definitely easier!

Good luck to the OP-I'd also recommend seeing a good lawyer.

Overstay days don't expire.


http://www.kwvisalaw.com/individual_faqs.asp

If he only stayed from July to April then he doesn't have a ban. The first 6 months are "allowed" and the last four months are not enough to invoke the 180 days rule. . .as long as he entered legally.

As for whether to apply for a K-1 or K-3/CR-1, you need to do a little more research about how long each takes in Canada. . .the K-1 appears to be faster and it can be processed at consulates other than Montreal. The I-129F processes at the same speed--basically--as the I-130 but with the I-129F sometimes the appointment is faster. You choose but look up the processing times at your service center first.

As for the I-212, thankfully, they let him withdraw his application instead of giving him an expedited removal. . .things should be fine.

Under NO circumstances should he attempt to cross the border again before he has a visa.

As someone else posted 212a7 has to do with not having a valid visa or passport. I am not well versed on the nuances for Canadian citizens, other than to know they have a bit of a special situation. However, if it is similar to the VWP, having overstayed even one day on a previous entry will require you to obtain an actual visa on any future entries. If you try to enter without one, you will get the 212a7 denial.

The papers he was given show he withdrew his application for entry. It is not a deportation. The fact that he withdrew his entry is what is more important here, not that he didn't go before a judge.

Assuming he had 6 months allowed entry on his 2006 entry, he overstayed by less than 180 days and he would not be subject to any bars. No waiver should be needed for either a K1 or K3. Which ever visa you choose to pursue shouldn't be affected by the events of yesterday, other than if you go the K3 route, you should plan on getting married in Canada, not U.S.

thanks guys, I get get a hold of a laywer today, they told me I should be fine on moving on with either the k-1 or k-1 visa's that he is ban from entering until he has a visa, etc.... Any one know how long the k-3 or k-1 takes for Toronto/Colorado? Thanks again guys.

Immigration Timelines

Here is a well written in clear language article on overstays which lead to action on the part of the USA.
http://www.tindallfoster.com/ExportedSite/...atus%5B1%5D.pdf

As to the mention that visits to the USA are accummulative towards a ban; the articles states

"Note that days in unlawful presense must be consecctive; multiple periods of unlawful presense, each not exceeding 180 days and seperated by departure from the United States, are not aggregated for the purpose of three- and ten-year bands."

Maybe this will help.

Carlso

You should check with another lawyer. It has been my experience that even if you have the correct visa, the visa only allow you to travel to the Port of Entry and it is under the jurisdiction of the U.S. Custom and Border Patrol to grant you entry into the US. Furthermore, what are the consequences for signing a withdrawal letter?
Also, keep in mind that the Custom Border Patrol Officers believed that your fiance should not enter into the U.S. because.... in other words getting a visa will not correct this issue. It appears they are concern with the amount of time he spent in the USA previously.

The border patrol allowed him to withdraw his application, which means there is no ineligibility for them to deny him entry once he has a visa. (They did not do an expedited removal so he won't need an I-212)

They did not do an expedited removal, because he did not technically have a ban, having an overstay of less than 180 days and having entered legally i.e. with inspection( he won't need an I-601.)

However, he had the potential of violating immigration status again, so without a visa he cannot enter again so they denied his entry.

However, as the consulate does their investigation, they will make notes to the CBP letting them know that there are no legal grounds of exclusion, and they will--if the information we've been given here is correct--issue the visa without a waiver, since there are no grounds in the INA for him to be excluded.

You are correct that the border patrol has final decision over entry, however they do not just deny people without cause. In this case, the Immigrant Visa, and the notations made by the consulate, will remove the reasons that CBP originally denied entry.

John and Marlene- it's not necessarily true--if one's overstay is less than 180 days. I had an overstay of less than 180 days and it triggered a ban of 3 years. ANd even with a hardship application, I still didn't get approved till the three years were up. I'm going on 43 months and still no visa. Montreal says I've been approved but no documentation. Still pending.....