Overstaying + K-1

[Transborderwife 4,666]

Right, but should you try to re enter without a immigrant visa in the next 6-7 months or so you may be denied entry.

[NinjaMax 14]

http://www.avvo.com/legal-answers/will-i-be-denied-a-k-1-visa-or-barred-from-the-u-s-982101.html


I found this interesting post, since I was not issued a i-94

"As for your prior periods of overstay, assuming you were inspected each time at the border, but not given an I-94, then you should be treated as if you were admitted with an entry stamp of "D/S," which means "duration of status."

People who enter D/S do not accumulate "unlawful presence" even when they stay too long unless there is a formal finding of a status violation by an immigration judge or USCIS. This is potentially very good in your case, since someone who accumulates more than one year of unalwful presence in the U.S., and then departs, is barred from returning for a decade, unless they can qualify for a waiver by demonstrating an extreme level of hardship to a qualifying relative."

[jan22 2,898]

Overstay is different for Canadians

Who is subject to 222(g)?

222(g) overstay provisions apply only to the following aliens:

Aliens who entered the United States on the basis of a nonimmigrant visa stamp in their passport; and who

Have "stayed beyond the period of time authorized by the Attorney General."

Alien must have entered the United States on the basis of a nonimmigrant visa

I.N.A. § 222(g) clearly states that the provision applies only to "an alien who has been admitted on the basis of a nonimmigrant visa..."

Aliens who enter the United States in ways other than with a particular nonimmigrant visa in their passport are not affected by § 222(g).

****** USCIS and DOS clarified that the following individuals are not subject to overstay penalties, since they did not enter the United States on a nonimmigrant visa:

Individuals who come on immigrant visas;

Those who enter the United States under a visa waiver program (WB or WT status on the Visa Waiver Pilot Program or Guam Visa Waiver Program);

Individuals who are not required to obtain visas under 8 C.F.R. § 212.1© (e.g., Canadians);

Those who enter without inspection; and

Those who are admitted to the United States in parole status.

It is important to understand that individuals in these categories who stay longer than the authorized period of stay are still in violation of their status, but they are not subject to I.N.A. § 222(g). *******

http://www.temple.edu/isss/immigration/overstay.html

I think the OP has clarified her stay and has not really overstayed the 7 months she originally thought -- which should be a relief. However, I still wanted to post to make sure people didn't get confused by this post. INA 222(g) has nothing to do with the overstay ban people usually talk about. 222(g) is the section that makes a visa null and void when a person overstays (and it can be as little as one day) and says that the visa holder has to return to their home country or country of last residence to apply for a new visa (i.e., they can't go to another country to apply, such as one closer to the US). The section of the INA where the ineligibility most people talk about arises is INA 212(a)(9) -- and says, as others have stated here, that a stay of more than 180 days past your authorized stay results in an ineligibilty for entrance to the US for 3 years and a stay of more than 365 past the authorized stay makes you ineligible for 10 years.

Also important to note that for most categories of visas (including K-1), there is a waiver of the ineligibility that can be applied for. Once the waiver is approved, the visa can be issued and the person is then eligible to enter the US.

Edited June 9, 2015 by jan22

[Teddy B 17,251]

http://www.avvo.com/legal-answers/will-i-be-denied-a-k-1-visa-or-barred-from-the-u-s-982101.html

I found this interesting post, since I was not issued a i-94

"As for your prior periods of overstay, assuming you were inspected each time at the border, but not given an I-94, then you should be treated as if you were admitted with an entry stamp of "D/S," which means "duration of status."

People who enter D/S do not accumulate "unlawful presence" even when they stay too long unless there is a formal finding of a status violation by an immigration judge or USCIS. This is potentially very good in your case, since someone who accumulates more than one year of unalwful presence in the U.S., and then departs, is barred from returning for a decade, unless they can qualify for a waiver by demonstrating an extreme level of hardship to a qualifying relative."

The info above about Duration Of Status does apply to Canadians and they are not subject to any of the bans unless they ignore an order to leave the US by an immigration judge.

OP, you have two choices:

1. Stay in the US, marry and file for AOS without ever leaving. The AOS process will take approx. 3 to 5 months from the day that you file. All overstays are forgiven for people who marry a USC and file to adjust inside the US. This would be my choice if you do not need to leave the US any time soon.

2. Go home and wait out the K-1 process as planned. There should be no penalty for your overstay because you are Canadian. You may be questioned thoroughly about it, but no action will be taken against you.

Good Luck!

[Teddy B 17,251]

just a little over 7 months, but the thing is my arrival wasnt even recorded for some reason?

when i check my i-94 online it says im still in Canada. I think this was due to using a land crossing and the officer didnt put me into the system properly

This is not a problem as most Canadian tourist do not receive an I-94 when entering the US. On your upcoming forms that you will be filling out for AOS, you would put N/A Canadian Citizen in any box that asks for your I-94 number.

If you decide to stay in the US, marry and file without leaving, follow the guide here: http://www.visajourney.com/content/i130guide2

Edited June 9, 2015 by Teddy B

[NinjaMax 14]

The info above about Duration Of Status does apply to Canadians and they are not subject to any of the bans unless they ignore an order to leave the US by an immigration judge.

OP, you have two choices:

1. Stay in the US, marry and file for AOS without ever leaving. The AOS process will take approx. 3 to 5 months from the day that you file. All overstays are forgiven for people who marry a USC and file to adjust inside the US. This would be my choice if you do not need to leave the US any time soon.

2. Go home and wait out the K-1 process as planned. There should be no penalty for your overstay because you are Canadian. You may be questioned thoroughly about it, but no action will be taken against you.

Good Luck!

im thinking of just continuing my K-1 process as we got our NOA2 and seems to be the safer route.

Although its been over a month since my approval and nothing has been sent in the mail to any of us, seriously whats the deal with this? and i learned that the petition expires after 4 months?

I tried calling the NVC everyday multiple times and its always busy, the only time i got through they said they couldnt find a case associated with the receipt number i gave them.

[Teddy B 17,251]

Whichever way works best for you.

[NinjaMax 14]

Whichever way works best for you.

at the interview stage if i get asked the question "Have you overstayed a Visa before?"

Would I say yes?

[Teddy B 17,251]

at the interview stage if i get asked the question "Have you overstayed a Visa before?"

Would I say yes?

Yes, always be truthful with immigration authorities. Tell them you overstayed your 6 month tourist visa. You can almost always find legitimate ways to deal with problems if your truthful, and that goes for any aspect in life. It's when you lie that they come down on you hard. But again, based on your being a Canadian citizen, you shouldn't encounter any problems with the overstay. You're very lucky in that regard compared to people from other countries.

[NikLR 13,220]

im thinking of just continuing my K-1 process as we got our NOA2 and seems to be the safer route.

Although its been over a month since my approval and nothing has been sent in the mail to any of us, seriously whats the deal with this? and i learned that the petition expires after 4 months?

I tried calling the NVC everyday multiple times and its always busy, the only time i got through they said they couldnt find a case associated with the receipt number i gave them.

Nothing will be mailed. You need the NVC number I think to check your CEAC status. (if it was Texas it will be a bit getting to the NVC... keep calling every few days or so.) Then you can do package 3, get package 4, go back to Canada and do the medical etc and prepare for interview. It can be a week to over a month to get back a K1 visa currently so you will have to wait in Canada until you get the visa.

But if you mean the NOA2 by mail, well it should be mailed... you may want to check that the USCIS has the correct address.

[NinjaMax 14]

Nothing will be mailed. You need the NVC number I think to check your CEAC status. (if it was Texas it will be a bit getting to the NVC... keep calling every few days or so.) Then you can do package 3, get package 4, go back to Canada and do the medical etc and prepare for interview. It can be a week to over a month to get back a K1 visa currently so you will have to wait in Canada until you get the visa.

But if you mean the NOA2 by mail, well it should be mailed... you may want to check that the USCIS has the correct address.

we got our NOA2 Hardcopy, but once the embassy receives your case then they mail out packet 3 from what ive read so far (for montreal)

the mailed packet 3 can actually be different from what it says online in the PDF, ive been following another case, the instructions can differ.

I cant get through to the NVC, I must have have called over 2000 times, so im hoping montreal sends something out soon

[NikLR 13,220]

They email it.