Full Version: Denied Re-entry With AP?
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I was wondering...has anyone ever been denied re-entry into the USA even though they had their AP? If so, what would be the reason for the denial? We are planning to go back into Canada for his daughter's wedding in November and it got me to thinking/worrying.....
QUOTE(Griffon76 @ Aug 24 2007, 09:34 PM) 
I was wondering...has anyone ever been denied re-entry into the USA even though they had their AP? If so, what would be the reason for the denial? We are planning to go back into Canada for his daughter's wedding in November and it got me to thinking/worrying.....
LOL OK, I'm gonna answer my own question here with another's post elsewhere on this forum.....
QUOTE(russ @ May 6 2006, 12:02 PM) *
The most common reasons would be:
o You are subject to a ban from an overstay. Once AOS is complete, this goes away. AP doesn't help
o AOS denied/deemed fraudulent while you are gone.
or possibly (but unlikely),
o Immigration thinks you are a threat to the US. They won't tell you why, and in this case I don't think the green card would help anyway.
and....
QUOTE(Kezzie @ May 6 2006, 01:29 PM) *
Overstay is where you have been in the US on a visa and have stayed longer than you were allowed.... or like me you came on a VWP or tourist Visa and did AOS.... you cant use AP because you will not be let back in.....
If you have never overstayed on a visa then you have nothing to worry about....
Kezzie
So now that I read that, I guess I'm feeling that it was a waste to spend the $ for the travel document since hubby came on a visitor's visa and we got married only a few days before his 180 days was up (October 2006). We didn't file for AOS until we had sufficient documents and $ to pay for it all which was July 2007.
I was just trying to explain to him that if he goes to his daughter's wedding and they deny him re-entry, that he will have to stay there and we file paperwork all over again. This is so frustrating not knowing what we should do....
I personally would wait til you have the green card in hand. I know it's upsetting to have to miss his daughters wedding but you don't want the chance of being separated when he's not allowed back into the US, and then you'll have to pay more fees and file for K3.
Canadians who overstay are not subject to a bar on re-entry like people from other countries. It has something to do with not being given an I-94 and therefore not having a definate depature date. Their entries and exits from to and from the US are not recorded in the same way as those who have an I-94.
I can look for a source for you online that explains it. Also, you can probably get this information from a decent immigration lawyer for free if you want to double check.
I can look for a source for you online that explains it. Also, you can probably get this information from a decent immigration lawyer for free if you want to double check.
QUOTE(jane2005 @ Aug 24 2007, 10:38 PM)
Canadians who overstay are not subject to a bar on re-entry like people from other countries. It has something to do with not being given an I-94 and therefore not having a definate depature date. Their entries and exits from to and from the US are not recorded in the same way as those who have an I-94.
I can look for a source for you online that explains it. Also, you can probably get this information from a decent immigration lawyer for free if you want to double check.
I can look for a source for you online that explains it. Also, you can probably get this information from a decent immigration lawyer for free if you want to double check.
Wow! You know it does make sense...he was not given an I-94 so no departure date. I would like to see a source or something though. We will wait to make a decision about going after getting our facts straight. I know it wouldn't hurt to ask a lawyer too. Thanks for reminding me of that!
QUOTE(jane2005 @ Aug 24 2007, 10:38 PM)
Canadians who overstay are not subject to a bar on re-entry like people from other countries. It has something to do with not being given an I-94 and therefore not having a definate depature date. Their entries and exits from to and from the US are not recorded in the same way as those who have an I-94.
I can look for a source for you online that explains it. Also, you can probably get this information from a decent immigration lawyer for free if you want to double check.
I can look for a source for you online that explains it. Also, you can probably get this information from a decent immigration lawyer for free if you want to double check.
Can you find a source for this? I've never heard that Canadians were exempt from bars due to overstays.
QUOTE(Griffon76 @ Aug 24 2007, 10:47 PM)
Wow! You know it does make sense...he was not given an I-94 so no departure date. I would like to see a source or something though. We will wait to make a decision about going after getting our facts straight. I know it wouldn't hurt to ask a lawyer too. Thanks for reminding me of that!
How did he enter the U.S.? Ground or air? Passport? Despite not being given an I-94, USCIS does know when he entered since he put down his last entry date on his I-485...
The I-131 instructions state that filing AOS puts your husband in an period of authorised stay but, it also says:
There are plenty of Canadians I'm sure who have crossed and their entry was not recorded but, as I mentioned, USCIS does know when he entered because he has now told them on his I-485.
QUOTE
Although advance parole may allow you to return to the United States, your departure may trigger the three-or ten-year bar, if you accrued more than 180 days of unlawful presence BEFORE the date you were considered to be in a period of authorized stay.
There are plenty of Canadians I'm sure who have crossed and their entry was not recorded but, as I mentioned, USCIS does know when he entered because he has now told them on his I-485.
You really should talk it over with an immigration lawyer who deals with a lot of Canadians.
I had consulted an immigration lawyer about this I was considering returning to Canada after being in the US for a little over a year and was worried about a bar. I never did leave the US (on AP or before applying for my green card),so I have not had personal experience with this situation, just what I was told by my lawyer and the information I could find online.
My lawyer advised me that I would be considered "out of status", but not "unlawfully present" because I did not have a definate depature date or an I-94 that had expired. You can find bits and pieces of the law online, but it's hard to narrow a websearch down to just Canadian issues.
Basicallt "unlawful presence" doesn't occur until an I-94 expires (and the person is still in the US) or an immigration officer or judge states that a status violation has occured.
So even though a Canadian has violated his/her status by remaining in the US beyond 180 days, they are NOT considered "unlawfully present" (like someone who has an expired I-94), unless someone with the authority to do so deems them to be out of status.
Here is what I found on one site:
Persons such as Canadian tourists, who enter without visas or I-94s, may also be addressed since such people occasionally enter the U.S. and remain for many years without ever triggering the “unlawful presence” provisions. (The reason for this is that, without an I-94, there is no date from which to count unlawful presence unless the person comes to the attention of INS or the Immigration Court.)
source: http://www.murthy.com/news/UD02unpr.html
I had consulted an immigration lawyer about this I was considering returning to Canada after being in the US for a little over a year and was worried about a bar. I never did leave the US (on AP or before applying for my green card),so I have not had personal experience with this situation, just what I was told by my lawyer and the information I could find online.
My lawyer advised me that I would be considered "out of status", but not "unlawfully present" because I did not have a definate depature date or an I-94 that had expired. You can find bits and pieces of the law online, but it's hard to narrow a websearch down to just Canadian issues.
Basicallt "unlawful presence" doesn't occur until an I-94 expires (and the person is still in the US) or an immigration officer or judge states that a status violation has occured.
So even though a Canadian has violated his/her status by remaining in the US beyond 180 days, they are NOT considered "unlawfully present" (like someone who has an expired I-94), unless someone with the authority to do so deems them to be out of status.
Here is what I found on one site:
Persons such as Canadian tourists, who enter without visas or I-94s, may also be addressed since such people occasionally enter the U.S. and remain for many years without ever triggering the “unlawful presence” provisions. (The reason for this is that, without an I-94, there is no date from which to count unlawful presence unless the person comes to the attention of INS or the Immigration Court.)
source: http://www.murthy.com/news/UD02unpr.html
Thanks for finding that Jane.
However, doesn't the adjudicating officer have the authority to deem her husband as an overstay as they have his date of entry on file (his I-485)? Also, the last part of what you posted is interesting -- "unless the person comes to the attention of INS or the Immigration Court." He's already at the attention of USCIS currently.
I'd also seek a lawyer's advice on this but I think if I were in her husband's position, I would not leave until I had a GC in hand.
However, doesn't the adjudicating officer have the authority to deem her husband as an overstay as they have his date of entry on file (his I-485)? Also, the last part of what you posted is interesting -- "unless the person comes to the attention of INS or the Immigration Court." He's already at the attention of USCIS currently.
I'd also seek a lawyer's advice on this but I think if I were in her husband's position, I would not leave until I had a GC in hand.
The unlawful presence starts accruing from the date that an immigration judge or DHS tells the person who is out of status that they are violating their status - so seeing as he is no longer out of status (he's pending AOS), I don't think that he could be considered unlawfully present and he would not accrue any unlawfully present time in the US.
Though I do agree with you, if there is even a remote chance that he can face a bar, he shouldn't leave the US. I don't even know if I'd trust an immigration lawyer, I'd probably want to confirm that it's ok for him to leave and that no bar would apply from several sources.
Hopefully he gets his greencard before November and it's not an issue.
Though I do agree with you, if there is even a remote chance that he can face a bar, he shouldn't leave the US. I don't even know if I'd trust an immigration lawyer, I'd probably want to confirm that it's ok for him to leave and that no bar would apply from several sources.
Hopefully he gets his greencard before November and it's not an issue.
QUOTE(jane2005 @ Aug 25 2007, 12:19 AM)
The unlawful presence starts accruing from the date that an immigration judge or DHS tells the person who is out of status that they are violating their status - so seeing as he is no longer out of status (he's pending AOS), I don't think that he could be considered unlawfully present and he would not accrue any unlawfully present time in the US.
Hmm... I didn't catch the part saying from the date they tell the person they are out of status on my first reading, I'll read it again!
This subject is really interesting!QUOTE
Though I do agree with you, if there is even a remote chance that he can face a bar, he shouldn't leave the US. I don't even know if I'd trust an immigration lawyer, I'd probably want to confirm that it's ok for him to leave and that no bar would apply from several sources.
I agree there too!
Sometimes its just easier to call US Immigration in Canada near the border entry and ask "the question"
QUOTE(cdancer @ Aug 25 2007, 01:01 AM)
Sometimes its just easier to call US Immigration in Canada near the border entry and ask "the question"
More oftenthan not, this will result in total mis-information. Much smarter to consult with a qualified attorney.
Hi there,
I went to see my Immigration Atterney Two weeks ago as he audit my paper work as my AOS is still pending. I told HIM i had a AP to travel to the uk in October. He got angry with the Immigration for issuing me with it. As he had a case which he was fighting at the moment. Where one of his client where denied re entry into the USA where there AOS WAS ALSO PENDING.
He told me they are handing out AP free and nenie. It was our problem if they wont let us back into the USA. We have to remember we are out of status if we leave.
So i had to make the dession not to travel to my parents 50 Wdding Anniversary. Loose the airfare. Waste the money on the AP.
Just cant take the risk and loose everything as my husband means too much to me.
Thanks Kath58
I went to see my Immigration Atterney Two weeks ago as he audit my paper work as my AOS is still pending. I told HIM i had a AP to travel to the uk in October. He got angry with the Immigration for issuing me with it. As he had a case which he was fighting at the moment. Where one of his client where denied re entry into the USA where there AOS WAS ALSO PENDING.
He told me they are handing out AP free and nenie. It was our problem if they wont let us back into the USA. We have to remember we are out of status if we leave.
So i had to make the dession not to travel to my parents 50 Wdding Anniversary. Loose the airfare. Waste the money on the AP.
Just cant take the risk and loose everything as my husband means too much to me.
Thanks Kath58
What I'm reading is what I have feared. I just don't think we want to risk the chance of him being barred and having to start the process all over again. We would not be able to afford the fees for a while as well and hubby basically would be homeless there. Sure family can take him in but for how long and how it would affect us being separated for so long. Too many negatives to chance it.
I have a question which maybe someone knows for sure the answer (wish Zyggy was here).
Even though there's the loophole in the INA regarding what constitutes an overstay and unlawful presences (I say it's a loophole because it mentions I-94s which Canadians are not normally issued and without an I-94 Canadians are determined to be overstayed/unlawfully present on the date of decision by USCIS or a judge), can CBP, upon learning of the person's last visit, determine that their previous visit was overstayed and deny them reentry even though they have an AP issued and in hand?
Even though there's the loophole in the INA regarding what constitutes an overstay and unlawful presences (I say it's a loophole because it mentions I-94s which Canadians are not normally issued and without an I-94 Canadians are determined to be overstayed/unlawfully present on the date of decision by USCIS or a judge), can CBP, upon learning of the person's last visit, determine that their previous visit was overstayed and deny them reentry even though they have an AP issued and in hand?
QUOTE(misa @ Aug 25 2007, 12:16 PM)
I have a question which maybe someone knows for sure the answer (wish Zyggy was here).
Even though there's the loophole in the INA regarding what constitutes an overstay and unlawful presences (I say it's a loophole because it mentions I-94s which Canadians are not normally issued and without an I-94 Canadians are determined to be overstayed/unlawfully present on the date of decision by USCIS or a judge), can CBP, upon learning of the person's last visit, determine that their previous visit was overstayed and deny them reentry even though they have an AP issued and in hand?
Even though there's the loophole in the INA regarding what constitutes an overstay and unlawful presences (I say it's a loophole because it mentions I-94s which Canadians are not normally issued and without an I-94 Canadians are determined to be overstayed/unlawfully present on the date of decision by USCIS or a judge), can CBP, upon learning of the person's last visit, determine that their previous visit was overstayed and deny them reentry even though they have an AP issued and in hand?
Yes. The USCIS website has this to say about Advance Parole:
QUOTE
Caution
Due to recent changes to U.S. immigration law, travel outside of the United States may have severe consequences for aliens who are in the process of adjusting their status, extending their nonimmigrant stay, or changing their nonimmigrant status. Upon return, these aliens may be found inadmissible, their applications may be denied, or both. It is important that the alien obtain the proper documentation before leaving the U.S.
Admission into the U.S. is not guaranteed. In all cases, the alien is still subject to immigration inspection at a port of entry to determine whether the alien is admissible into the country.
Unlawful Presence
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods may be barred from admission, even if they have obtained Advance Parole. Those aliens unlawfully present in the United States for more than 180 days but less than one year and depart voluntarily before the start of removal proceedings are inadmissible for three years; those who are unlawfully present for one year or more are inadmissible for ten years.
Aliens who have concerns about admissibility should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals before making foreign travel plans.
Due to recent changes to U.S. immigration law, travel outside of the United States may have severe consequences for aliens who are in the process of adjusting their status, extending their nonimmigrant stay, or changing their nonimmigrant status. Upon return, these aliens may be found inadmissible, their applications may be denied, or both. It is important that the alien obtain the proper documentation before leaving the U.S.
Admission into the U.S. is not guaranteed. In all cases, the alien is still subject to immigration inspection at a port of entry to determine whether the alien is admissible into the country.
Unlawful Presence
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods may be barred from admission, even if they have obtained Advance Parole. Those aliens unlawfully present in the United States for more than 180 days but less than one year and depart voluntarily before the start of removal proceedings are inadmissible for three years; those who are unlawfully present for one year or more are inadmissible for ten years.
Aliens who have concerns about admissibility should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals before making foreign travel plans.
Read here for more details.
QUOTE(misa @ Aug 25 2007, 12:05 AM)
Thanks for finding that Jane.
However, doesn't the adjudicating officer have the authority to deem her husband as an overstay as they have his date of entry on file (his I-485)? Also, the last part of what you posted is interesting -- "unless the person comes to the attention of INS or the Immigration Court." He's already at the attention of USCIS currently.
I'd also seek a lawyer's advice on this but I think if I were in her husband's position, I would not leave until I had a GC in hand.
However, doesn't the adjudicating officer have the authority to deem her husband as an overstay as they have his date of entry on file (his I-485)? Also, the last part of what you posted is interesting -- "unless the person comes to the attention of INS or the Immigration Court." He's already at the attention of USCIS currently.
I'd also seek a lawyer's advice on this but I think if I were in her husband's position, I would not leave until I had a GC in hand.
The adjudicating officer would have that authority, but that wouldn't be determined until the interview, at which point it wouldn't matter because overstay is not a reason for denial if you are married to a USC.
We traveled to and from the UK with no problem using AP.
Obviously this is a personal decision, but the only time I would recommend not leaving the country on AP is if you have accumulated overstay time.
Otherwise, there is no reason to deny you.
Obviously this is a personal decision, but the only time I would recommend not leaving the country on AP is if you have accumulated overstay time.
Otherwise, there is no reason to deny you.
QUOTE
So now that I read that, I guess I'm feeling that it was a waste to spend the $ for the travel document since hubby came on a visitor's visa and we got married only a few days before his 180 days was up (October 2006). We didn't file for AOS until we had sufficient documents and $ to pay for it all which was July 2007.
Hi,
I am not quite sure why you think they would refuse him crossing because of overstay, since you said in the part I have quoted from you, that you got married a few days before his 180 days were up... ? or perhaps there is something I didn't understand of your situation, if so my apologies.
If I remember well, Canadian are allowed to visit the USA for a period of up to 182 days( 6 months) before it is considered overstay...
I thought I would give you my two cents on the situation, and give you my own experience which happen to be quite similar to yours in that aspect.
I crossed the border in November 2005 as a visitor from Canada. My wife and I got married in May 2006, on pretty much the last day of the "authorized stay for Canada visitor". We weren't able to filed until May 2007 for AOS, AP, and EAD. I had put down my brother's wedding as the first trip we wished to make up north, which was at the beginning of august. We received the AP in the mail a week(day for day) before his wedding and made last minute plan to get there in time.
To be honest with you, we never found it easier to cross the border, coming back to the USA. We got to the booth, we gave the officer my wife driver's licence, and car registration and insurance; as well as my Employment authorization card and Advance Parole document.
He looked through them, asked me if I had a passport. I said that I didn't and usually used my driver's license and birth certificate for IDs. I asked him if he wished to see them, he said there was no need to. He gave back my wife's documents and told me I just need to go inside to get my AP stamped.
We parked the car, sat inside for no more than 10 minutes, an officer called me up, gave me my AP stamped and a little stamped receipt as well that he told me to keep with the AP for next time I cross the border. And we were on our way.
Hope it helps, good luck with everything!
Reed
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