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Fiancee return flight to Canada was delayed, causing an overstay. How will this affect our K1 application?

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I'm a bit worried about the situation we're finding ourselves in right now, due to some unfortunate events.

 

Background: My fiancee is a Canadian citizen and arrived last month to visit me in the US. Before the flight into the US, Customs interrogated her and told her that they would let her visit the US, but they marked on her passport that she must return to Canada 8 days sooner than we had planned. No real explanation of why, but we figure they were suspicious of her taking 6 flights to and from the US in the past year. When she landed in the US, I bought another ticket for her to return to Canada on the day that the officer had demanded, which was 8 days sooner than the round-trip return date from the ticket we originally paid for.

 

On the day that she was scheduled to fly back home to Canada, we were informed that the flight had been delayed due to plane malfunction. This flight delay would have caused her to miss her connecting flight back into Canada, and there were no other flights available to take her home (or to anywhere in Canada) on that day. This was a problem, because the officer specifically stated that she was to return on this date. We had an airport representative write out a signed excuse for us, stating there were no available flights, so we'd at least have something to explain the situation in case she was asked about it later by Customs or during her K-1 interview. We had the flight rescheduled for tomorrow, went home and tried to not worry about it.

 

The next day, we get a message 3 hours before the flight. The flight is delayed again, and once again the delay would cause her to miss her connecting flight. Keep in mind that, at this point, she is already overstaying in the US for an extra day. Out of frustration, I called and canceled the ticket, and we drove 8 hours north and crossed into Canada by car and I dropped her off at her home. The only alternative would have been to again reschedule the flight, and then she would have been overstaying in the US for 2 days instead of 1.

 

Now, here's what I'm worried about:

 

  1. They did not stamp her passport on her return to Canada by car. This means we don't really have any records of her returning to Canada on the day that she did. I checked her traveler history online at the I-94 information retrieval website, and there is no record of her departing the US. Is the US going to be aware of when she left the country? Or, is she still in the US as far as they are aware? How exactly can we prove that she didn't overstay in the US for 5 days, 10 days or even a month if there are no records of it?
  2. As far as the airline is concerned, she is still in the US. Our original round-trip flight was never canceled, we just bought an extra one way ticket back to Canada. So now it's 7 days after she left the US, and the airline sent us an email asking her to check in for the flight (for the original round-trip flight that we scheduled for prior to the officer demanding that she return home earlier). Should I call to cancel this flight, or should I just ignore it? Will the airline report to either government that she never returned home via this flight?
  3. How will these events affect our application? Is this going to lead to a mark against us?

 

We appreciate any advice, this is a very frustrating situation to have to deal with considering the events are basically out of our control.

 

Thank you for reading.

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3 minutes ago, Boiler said:

Should be OK for the K1 but sounds like there will be no more visits.

Do you say that because of the officer reducing her stay? Or because of the overstay?

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if i am reading this right, there isn't any record that she over stayed either right? You drove her, he passport isn't stamped and there are no flight records of her taking any flights. So I dont think the overstay will affect anything (including any future visits) as the US doesn't know if happened. The Customs officer though is a different story... not sure how that will affect future visits. Your K1 should be fine though.

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i ahve actually heard of another canadian having a problem like this in the past! where they didnt have the proof going into canada (or coming in the USA) before everything was all electronic and the officer wrote a NOID.

i cross the boarder alot and not EVERY entry/exit is in the online i94 database. in fact, my parents cross alot and i checked there passport and its the same for them.

however, because you had an actual return by date, you should have the border stamp that at the border to make sure she returned! i think you will have problems proving the overstay and she didndt stay longer then intended, as you should have made sure to ask the canadian custom officer going into canada to stamp your passport (in the old F1 days i had them take my i94.. like 'oh hey, dont forget you need this!")

 

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they are going to know she came back to canada somehow tho.. you may just need to do your explanation, show the flights did get delayed and show that you did drive and u should be ok. plus, an overstay < 6 months does not incur a 3 year ban so you are ok overstaying a day, but i wouldnt have her try to come back and visit until you get the k1.

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5 minutes ago, hasheesha said:

if i am reading this right, there isn't any record that she over stayed either right? You drove her, he passport isn't stamped and there are no flight records of her taking any flights. So I dont think the overstay will affect anything (including any future visits) as the US doesn't know if happened. The Customs officer though is a different story... not sure how that will affect future visits. Your K1 should be fine though.

 

Yeah, I considered this also. There's no record as far as what is available to us, but we're not sure if they have some private record that we don't have access to. We can only hope that it's something they'll overlook. The customs officer told her that she should wait 6 months before returning to the US, so future visits probably won't happen until she has K-1 in hand.

 

3 minutes ago, caliliving said:

i ahve actually heard of another canadian having a problem like this in the past! where they didnt have the proof going into canada (or coming in the USA) before everything was all electronic and the officer wrote a NOID.

i cross the boarder alot and not EVERY entry/exit is in the online i94 database. in fact, my parents cross alot and i checked there passport and its the same for them.

however, because you had an actual return by date, you should have the border stamp that at the border to make sure she returned! i think you will have problems proving the overstay and she didndt stay longer then intended, as you should have made sure to ask the canadian custom officer going into canada to stamp your passport (in the old F1 days i had them take my i94.. like 'oh hey, dont forget you need this!")

 

 

1 minute ago, caliliving said:

they are going to know she came back to canada somehow tho.. you may just need to do your explanation, show the flights did get delayed and show that you did drive and u should be ok. plus, an overstay < 6 months does not incur a 3 year ban so you are ok overstaying a day, but i wouldnt have her try to come back and visit until you get the k1.

 

I think that we've unfortunately decided that she probably shouldn't come back until she has her K-1, mostly because the officer told her that she needs to wait 6 months before coming back to the US. It sounded more like a strong recommendation than a requirement, but I feel like she'd be denied if she tried to visit again.

 

Is there still a chance she could be denied entry into the US even with a K-1 in hand?

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3 minutes ago, yuqu said:

 

Yeah, I considered this also. There's no record as far as what is available to us, but we're not sure if they have some private record that we don't have access to. We can only hope that it's something they'll overlook. The customs officer told her that she should wait 6 months before returning to the US, so future visits probably won't happen until she has K-1 in hand.

 

 

 

I think that we've unfortunately decided that she probably shouldn't come back until she has her K-1, mostly because the officer told her that she needs to wait 6 months before coming back to the US. It sounded more like a strong recommendation than a requirement, but I feel like she'd be denied if she tried to visit again.

 

Is there still a chance she could be denied entry into the US even with a K-1 in hand?

With a K1 it will be extremely unlikely for them to deny you... Customs officers have the power to deny entry to any visa (or even a GC holder), only people guaranteed admission to the US are citizens. 

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12 minutes ago, yuqu said:

Is there still a chance she could be denied entry into the US even with a K-1 in hand?

The answer is always yes. XD But it's generally unlikely unless there is a specific reason to deny her.

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Is there any other record of her being in Canada you could potentially submit? for example, she could make an ATM withdrawal, eat at a restaurant and pay with a CC, a doctor's visit, ... anything semi-official that puts her in Canada on this date, should anyone ask you to prove she was back home..

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11 hours ago, DrEllaNJ said:

Is there any other record of her being in Canada you could potentially submit? for example, she could make an ATM withdrawal, eat at a restaurant and pay with a CC, a doctor's visit, ... anything semi-official that puts her in Canada on this date, should anyone ask you to prove she was back home..

She has texts which might show that she started texting from Canada once she crossed the border, but we have to check on that. Going to have her make a purchase/ATM withdrawal on her debit card so we at least have something.

 

10 hours ago, Eric-Pris said:

This is a good lesson about timing.  Always leave yourself an out, don't put things off till the very last possible day.  Because as we all know, something always tends to happen to screw things up.

 

100% agreed, but it was a difficult decision. The officer told her she had to be gone on the 26th, the day after Christmas. We took a chance  so that she could at least stay for Christmas.

 

2 hours ago, canadian_wife said:

On her trip into the U.S. why did the border agent specify a date to leave?   How long was she given to stay in the U.S. and why?

 

good luck

We don't really know for sure. They didn't like how often she was flying in and out, and they didn't like that she "had no ties to Canada" (their words). Having a sick mother that she needs to tend to doesn't count. They can be harsh on people who don't work or are self-employed. I guess because they think the person will just leave the country and never come back.

 

Seems like everyone thinks that her K-1 application should be fine, but she shouldn't try to enter the US until she has the visa. That's exactly what we'll be doing.

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canadians are getting scrutinized alot more on traveling especially if you are going back and forth, have no job in canada, and clearly looks like you are a resident of the usa (illegally). they used to be more lenient and admitted canadians as a D/S (duration of stay) but now they stamp B2 and give an online i94 so its much more rigid.  after 2013 the USA and Canada started sharing systems so now they see when u enter and leave into canada.  before 2013, they had no way to track when this information (the USA just saw when u crossed into USA and Canada side just saw when u crossed into Canada). now they share systems and database on everything

 

an atm purchase now wouldnt really matter.

she had a date to return by, and u should ahve made sure that border guard stamped something in her passport - also, this is a lesson not to plan things at the last minute.  give yourself 3 days! 

 

i would get those texts that prove when she was back in canada and just explain your story if it is brought up - dont lie, show the proof the flight was cancelled and changed and just explain you drove.  if they require more proof, they will tell you at the interview.  i checked my parents i94 online and they swipe now every time they cross yet only 50% are actually submittecd online. do you know if they did swipe the passport?

 

i remember canadians in the past on f1 visas being told specifically - make sure you hand over the i94 within the required time. as border agens would generally wave you through, you had to actually say 'hey, can you take my i94' if you knew she had to be back u really should have made sure she got a stamp going into canada. 

 

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