Unintentional Overstay??

[WantingMyHubby 0]

Okay, something NEW is worrying me (does it ever end??)...

After getting my bachelor's degree in Canada, I decided to take some time off to do something meaningful. After some research/soul searching, I decided on volunteering with Habitat for Humanity in the US. Management there was obviously more than happy to offer me a full-time volunteer position with them - I was not paid, I supported myself. They offered me housing with other volunteers, where I paid only monthly utilities.

I volunteered with HFH for a total of 11 months. Within those 11 months, I went back to Canada for 2 weeks over Christmas (4 months in US, visit to Canada, 6 months in US, back to Canada for good).

When I was figuring out my plans, I thought that I could visit the US for 6 months in a CALENDAR year, not in any 12 month period. Little did I know that i) I misunderstood, and ii) I would fall in love with an American and have to deal with all of this again!

Now I'm scared that this will have consequences on the visa process, starting with the I-130, where I have to list my residences in the past 5 years. When they see that I stayed in the US for 11 months back in 2005-2006, will that cause a big problem? This is an important question I may end up asking a lawyer, but I wanted to see your opinions (because I've already learned so much from reading this site). I swear, I just wanted to donate my time and effort to HFH, I never intended on causing touble

Any input would be greatly appreciated!

** I should add that when I entered the US the first time, the POE let me through after a couple of mins of asking about the voluteering situation...no problems whatsoever, even though it was clear that I would be there for 11 months.

Edited March 4, 2008 by WantingMyHubby

[GabiandVi 34]

Okay, something NEW is worrying me (does it ever end??)...

After getting my bachelor's degree in Canada, I decided to take some time off to do something meaningful. After some research/soul searching, I decided on volunteering with Habitat for Humanity in the US. Management there was obviously more than happy to offer me a full-time volunteer position with them - I was not paid, I supported myself. They offered me housing with other volunteers, where I paid only monthly utilities.

I volunteered with HFH for a total of 11 months. Within those 11 months, I went back to Canada for 2 weeks over Christmas (4 months in US, visit to Canada, 6 months in US, back to Canada for good).

When I was figuring out my plans, I thought that I could visit the US for 6 months in a CALENDAR year, not in any 12 month period. Little did I know that i) I misunderstood, and ii) I would fall in love with an American and have to deal with all of this again!

Now I'm scared that this will have consequences on the visa process, starting with the I-130, where I have to list my residences in the past 5 years. When they see that I stayed in the US for 11 months back in 2005-2006, will that cause a big problem? This is an important question I may end up asking a lawyer, but I wanted to see your opinions (because I've already learned so much from reading this site). I swear, I just wanted to donate my time and effort to HFH, I never intended on causing touble

Any input would be greatly appreciated!

** I should add that when I entered the US the first time, the POE let me through after a couple of mins of asking about the voluteering situation...no problems whatsoever, even though it was clear that I would be there for 11 months.

As you are Canadian and this dates back a few years, you may not have entered using your passport. If you did, you would have been given an I-94. As long as you didn't stay any longer than what it stated, you are okay.

I wish I could answer with authority, but it seems to me that as you didn't overstay intentionally and you weren't being paid, this situation should be forgiven. You were working with a reputable organization, and it seems the oversight would be theirs anyway. I would think this wouldn't be a big deal.

[WantingMyHubby 0]

As you are Canadian and this dates back a few years, you may not have entered using your passport. If you did, you would have been given an I-94. As long as you didn't stay any longer than what it stated, you are okay.

I wish I could answer with authority, but it seems to me that as you didn't overstay intentionally and you weren't being paid, this situation should be forgiven. You were working with a reputable organization, and it seems the oversight would be theirs anyway. I would think this wouldn't be a big deal.

Thanks for that insight, it gives me some relief...I don't know much about I-94's, are those issued on the spot at POE's? I'm positive that I showed my passport, as I always use it to travel. Either way, I think it was definitely the organization that caused the officer to let me in without any issues.

I'm wondering if I should include the letter that HFH wrote for me, stating the duration of my volunteer work and the address where I resided. Am I sparking unnecessary attention, or would they appreciate that?

[Chris Parker 10]

When I was figuring out my plans, I thought that I could visit the US for 6 months in a CALENDAR year, not in any 12 month period. Little did I know that i) I misunderstood, and ii) I would fall in love with an American and have to deal with all of this again!

Now I'm scared that this will have consequences on the visa process, starting with the I-130, where I have to list my residences in the past 5 years. When they see that I stayed in the US for 11 months back in 2005-2006, will that cause a big problem?

You will have to list all residences, places of employment, and places of education since age 16 when you apply for the immigrant visa, not just the last 5 years as is currently being requested by USCIS on Form G-325A for the petition filing.

How long were you admitted to the U.S. for? (how long do Canadians entering without a visa usually get admitted for? 90 days?)

If 90 days is the answer and you stayed 11 months, you overstayed more than 6 months and less than 1 year and have been subject to inadmissibility on that basis for 3 years since you departed (in 2006, right?) If so, to be totally cleared of the violation, you may have to delay interviewing for your immigrant visa until the 3 year anniversary of your departure (if filing the I-130 petition only now, you probably will not get to the visa interview stage before 2009 anyway).

If you were actually admitted for 6 months somehow, than having less than 6 months overstay is of no consequence to admissibility. Without a passport stamp proving your period of authorized admission and required departure date, however, the consular officer is going to have to assume the minimum period was granted, regardless of what you believe you were told. Even so, as long as your total stay was less than 1 year, only the 3-year inadmissibility will apply (if it totals, in full accrual, more than 1 year, then the inadmissibility is 10 years and you definitely don't want that!)

Edited March 5, 2008 by Chris Parker

[eau_xplain 2]

OP, I suggest you post this question in the Canada forum too. Perhaps you can get more insight there regarding how long a stay are Canadians allowed per instance and per year.

[WantingMyHubby 0]

You will have to list all residences, places of employment, and places of education since age 16 when you apply for the immigrant visa, not just the last 5 years as is currently being requested by USCIS on Form G-325A for the petition filing.

How long were you admitted to the U.S. for? (how long do Canadians entering without a visa usually get admitted for? 90 days?)

If 90 days is the answer and you stayed 11 months, you overstayed more than 6 months and less than 1 year and have been subject to inadmissibility on that basis for 3 years since you departed (in 2006, right?) If so, to be totally cleared of the violation, you may have to delay interviewing for your immigrant visa until the 3 year anniversary of your departure (if filing the I-130 petition only now, you probably will not get to the visa interview stage before 2009 anyway).

If you were actually admitted for 6 months somehow, than having less than 6 months overstay is of no consequence to admissibility. Without a passport stamp proving your period of authorized admission and required departure date, however, the consular officer is going to have to assume the minimum period was granted, regardless of what you believe you were told. Even so, as long as your total stay was less than 1 year, only the 3-year inadmissibility will apply (if it totals, in full accrual, more than 1 year, then the inadmissibility is 10 years and you definitely don't want that!)

Holy overload of info I didn't know! lol

I didn't know that I have to list all residences, places of employment & places of education for the visa application, but I guess I'll get to that eventually!

From what I remember, the officer mentioned that I would have to re-enter Canada no later than 6 months from when I passed through. It's so strange, because he knew I was going for 11 months total! I said I would go back for Christmas and then re-enter the US for the remainder of my volunteer term, and he was fine with that. He was very friendly - I guess because he knew I was going to volunteer!

Soo...I'm not sure if your explanation of the overstay applies to me, although i) you seem to be VERY knowledgeable of how this all works, and ii) like you said, I may not have proof of what the officer said. I probably don't have proof, actually. All I know is that I told the complete truth and he didn't warn me of any kind of overstay.

Hhhmmmmmmm....I'm going to have to take what you said into consideration....thankssss...

OP, I suggest you post this question in the Canada forum too. Perhaps you can get more insight there regarding how long a stay are Canadians allowed per instance and per year.

That's a really good idea!! Will do.

[Chris Parker 10]

From what I remember, the officer mentioned that I would have to re-enter Canada no later than 6 months from when I passed through. It's so strange, because he knew I was going for 11 months total! I said I would go back for Christmas and then re-enter the US for the remainder of my volunteer term, and he was fine with that. He was very friendly - I guess because he knew I was going to volunteer!

Dept. of state seems to indicate: "If you are a Canadian citizen, you do not require a visa to visit the United States for periods of less than 180 days." and they are usually not given a Form I-94 either.

Did you go back for Christmas like you said you would? If you returned home for Christmas, and the minimum admission for Canadians without visa visiting the U.S. is indeed 180 days, would there have been any overstay?

If it is 180 days and you stayed for 11 months, I don't think you have any visa problems because of this as long as there are no other overstays in your history.

Edited March 5, 2008 by Chris Parker

[lucyrich 19]

Expect them to interpret the rules literally. They won't take into account that you didn't mean to overstay or had a genuine misunderstaning, nor will they take into account that you were working for a good organization. They really don't have a lot of leeway in interpreting the rules.

The rule is that, if you have accumulated between 180 days and a year of illegal presence, you're subject to the three year bar on admissibility. If you've accumulated more than a year of illegal presence, you're subject to a ten year bar. If you've accumulated less than 180 days of illegal presence, there is no bar on admissibility, and you shouldn't expect any problems getting a marriage-based visa, but you might have trouble entering as a visitor.

Illegal presence only starts accumulating after your authorized stay ends.

It sounds like, even in the worst case of the strictest possible interpretation, you don't have more than 180 days of illegal presence.

[WantingMyHubby 0]

Dept. of state seems to indicate: "If you are a Canadian citizen, you do not require a visa to visit the United States for periods of less than 180 days." and they are usually not given a Form I-94 either.

Did you go back for Christmas like you said you would? If you returned home for Christmas, and the minimum admission for Canadians without visa visiting the U.S. is indeed 180 days, would there have been any overstay?

If it is 180 days and you stayed for 11 months, I don't think you have any visa problems because of this as long as there are no other overstays in your history.

Yep, I went back for two weeks over Christmas and New Years to be with my family - I remember it was really tough, because my hubby and I had just started dating and really didn't want to part over the holidays!! But as it turns out, I'm glad I went. It definitely helps this situation!

Thanks for all your input - it really worried me at first, but I feel quite a bit better knowing that despite the overstay, I should be fine!

[WantingMyHubby 0]

Expect them to interpret the rules literally. They won't take into account that you didn't mean to overstay or had a genuine misunderstaning, nor will they take into account that you were working for a good organization. They really don't have a lot of leeway in interpreting the rules.

The rule is that, if you have accumulated between 180 days and a year of illegal presence, you're subject to the three year bar on admissibility. If you've accumulated more than a year of illegal presence, you're subject to a ten year bar. If you've accumulated less than 180 days of illegal presence, there is no bar on admissibility, and you shouldn't expect any problems getting a marriage-based visa, but you might have trouble entering as a visitor.

Illegal presence only starts accumulating after your authorized stay ends.

It sounds like, even in the worst case of the strictest possible interpretation, you don't have more than 180 days of illegal presence.

If I want to be nitpicky, I volunteered in the US from mid-August to early July (including my two week return to Canada), which totals less than 11 months. So my overstay would technically total less than 5 months (approximately 140 days). Even so, how can I prove that I overstayed less than 180 days? There are no stamps in my passport to indicate any of that. So do they just take my word for it? That would seem awfully generous of them!

Thanks again for all the info, it's nice to make SOME kind of sense of this!

** Ooh, I just remembered that I at LEAST have the letter from HFH stating my 11 month volunteer term. However, I can't prove to them that I returned to Canada right afterwards! Should I include that letter with my I-130 in case they question me residing in the US for 11 months? Also, would volunteering qualify as employment that needs to be listed? Thanks again!!!!

Edited March 6, 2008 by WantingMyHubby

[Chris Parker 10]

If I want to be nitpicky, I volunteered in the US from mid-August to early July (including my two week return to Canada), which totals less than 11 months. So my overstay would technically total less than 5 months (approximately 140 days). Even so, how can I prove that I overstayed less than 180 days? There are no stamps in my passport to indicate any of that. So do they just take my word for it? That would seem awfully generous of them!

Sounds like almost no overstay to me. You were admitted for 180 days twice. As you returned as you told the inspectors you would do, you did not violate your admission.

Aug-Dec = 5 months < 6 months.

Jan-July= 6 months = 6 months.

Yeah, they have no evidence you were ever in U.S.A. in the first place, so they are just going to take your word for it (and you are going to sign the sworn statement DS-230 Part II in front of them to that effect). While you have no passport stamps, there could be electronic records of entries in the file.

Should I include that letter with my I-130 in case they question me residing in the US for 11 months? Also, would volunteering qualify as employment that needs to be listed? Thanks again!!!!

No, you should not include the letter. You can bring it to your visa interview next year if you like, but they probably will not care to see it. Also, I don't think the volunteer work qualifies as employment either.

Edited March 6, 2008 by Chris Parker

[WantingMyHubby 0]

Sounds like almost no overstay to me. You were admitted for 180 days twice. As you returned as you told the inspectors you would do, you did not violate your admission.

Aug-Dec = 5 months < 6 months.

Jan-July= 6 months = 6 months.

Yeah, they have no evidence you were ever in U.S.A. in the first place, so they are just going to take your word for it (and you are going to sign the sworn statement DS-230 Part II in front of them to that effect). While you have no passport stamps, there could be electronic records of entries in the file.

Should I include that letter with my I-130 in case they question me residing in the US for 11 months? Also, would volunteering qualify as employment that needs to be listed? Thanks again!!!!

No, you should not include the letter. You can bring it to your visa interview next year if you like, but they probably will not care to see it. Also, I don't think the volunteer work qualifies as employment either.

Ahh, so when I returned to the US from Canada, that re-started the clock. That makes sense. Looks like it wouldn't have been the end of the world if I hadn't gone back for Christmas, but I'm really glad I did anyway.

So if I enter my US residence as August 2005 - July 2006 on the I-130, when will I get the chance to clarify that I re-entered Canada for 2 weeks within that period? Will they look me up in the system to see if there's an electronic record of that visit? Or would they just approve it (assuming everything else was okay) and deal with it at the interview?

Maybe I'm worrying too much, but I don't know how they view beneficiaries that have spent some time in the US.

Now that I think of it, I've never noticed whether they scanned my passport everytime I crossed...I wonder how that works - if they always scan passports to see if you're flagged, and then that automatically records your entry that day..

Hope my questions aren't too confusing. Again, I really appreciate your opinion!

[Chris Parker 10]

So if I enter my US residence as August 2005 - July 2006 on the I-130, when will I get the chance to clarify that I re-entered Canada for 2 weeks within that period? Will they look me up in the system to see if there's an electronic record of that visit? Or would they just approve it (assuming everything else was okay) and deal with it at the interview?

If it were me, I'd put it in as two consecutive residence periods both in the U.S. (one for 08/05-12/05, and the other for 01/06-07/06). That way I could easily explain what it meant at the visa interview.

Unlawful presence doesn't matter for petition approval (in fact, they will approve the petition for someone who is clearly inadmissible for overstaying), but you will need to provide this information again on your visa application where it will be considered for overstay determination purposes and you probably want the information on your visa application to be consistent with the information on the approved petition sent to the consulate.

Edited March 6, 2008 by Chris Parker

[WantingMyHubby 0]

So if I enter my US residence as August 2005 - July 2006 on the I-130, when will I get the chance to clarify that I re-entered Canada for 2 weeks within that period? Will they look me up in the system to see if there's an electronic record of that visit? Or would they just approve it (assuming everything else was okay) and deal with it at the interview?

If it were me, I'd put it in as two consecutive residence periods both in the U.S. (one for 08/05-12/05, and the other for 01/06-07/06). That way I could easily explain what it meant at the visa interview.

Unlawful presence doesn't matter for petition approval (in fact, they will approve the petition for someone who is clearly inadmissible for overstaying), but you will need to provide this information again on your visa application where it will be considered for overstay determination purposes and you probably want the information on your visa application to be consistent with the information on the approved petition sent to the consulate.

Thank you SO MUCH for the advice & info ...I think I'm clear on the issue (for the time being!). Time to tackle other problems...

[Married_my_love 0]

Unlawful presence doesn't matter for petition approval (in fact, they will approve the petition for someone who is clearly inadmissible for overstaying), but you will need to provide this information again on your visa application where it will be considered for overstay determination purposes and you probably want the information on your visa application to be consistent with the information on the approved petition sent to the consulate.

"Canadians who lawfully enter the U.S., but who were not given I-94's, are treated like status violators if they overstay or fail to maintain status. They do not accumulate unlawful presence, and the 3 and the 10-year bars do not apply, where neither the USCIS nor an Immigration Judge has made a determination that the person has violated status."