wife legally visited in 1990 as a child, didn't receive an i-94 and overstayed

[irmonkey 0]

Not sure if this is the right forum for this but here's my situation.

I'm a U.S citizen and my wife is a British Citizen. In 1990 when she was 8 her mom and her went to Canada to visit relatives there and then drove to the U.S. to visit relatives here (we're not sure if they intended to just visit and stayed because they liked it or what). They drove in through the Toronto-Buffalo border crossing and their driver at the time was a Canadian citizen. Since the driver was Canadian he didn't need to fill out an I-94. I think she and her mom were supposed to fill one out but apparently the border post assumed the rest of the family was Canadian too and they were waved through without filling out an I-94 or getting their passport stamped. Her passport just has the entry stamp from when they entered Canada and a U.S. non-immigrant visa from when they were going to visit the U.S.

Fast forward to today - we're now married and are trying to figure out how to fix her status. I was hoping we could file an AOS since we're married and I'm a U.S. citizen, but without the I-94 or an entry stamp in her passport, I'm not sure how we can prove she entered legally. Is there any other way to prove she came legally? Since it was so long ago I don't think there's any record of her visit. The lawyer we talked to mentioned getting the relatives she visited to write affidavits saying she came to see them but wouldn't say how likely that was to work. I'm hoping that since she was a minor when she came and had no choice, and has now lived here for 19 years that there's something we can do.

[Otto 83]

It would be difficult (or impossible really) to prove she came here legally when in fact, she did not. (Legally would mean being inspected at a border which she was not apparently.)

[irmonkey 0]

I thought so too, but now another lawyer we talked to said the Canadian entry stamp and the U.S. visa is enough since they didn't normally do I-94s when you're driving over the border back then, especially if you were from a "friendly" country. I want to believe him but I'm not so sure.

It would be difficult (or impossible really) to prove she came here legally when in fact, she did not. (Legally would mean being inspected at a border which she was not apparently.)

[Otto 83]

I thought so too, but now another lawyer we talked to said the Canadian entry stamp and the U.S. visa is enough since they didn't normally do I-94s when you're driving over the border back then, especially if you were from a "friendly" country. I want to believe him but I'm not so sure.

Sounds like a stretch - although am sure stranger things have happened - we're talking about a 19+ year overstay though (and the overstay would be loosely based on whether the attorney could somehow show legal entry).

[Boiler 43,687]

If she had been inspected she would have had an I 94. If it has been lost she can seek a copy. Sounds like they impersonated Canadians who have different arrangements.

[NickD 202]

I have both driven and flown into Canada many times over the years with absolutely no passport, didn't even want to see my drivers' license. We had plants up there, was no different than crossing the state line here. Only time I was stopped driving a station wagon, is when a border guard though he saw something he though was a live plant. That just took a second, but no ID of any kind. Thought it was kind of dumb as a thin line is just between the Canadian and USA border, what about a plant that is growing on the border?

Been meaning to look up a friend that married a Canadian girl, back a few years, immigration wasn't even talked about, I don't recall them doing anything about it. But I recently met a guy that new I married a gal from Venezuela with a short talk about immigration. He married a Canadian some years back and all I got out of him, he is up to his ears in immigration. We really didn't talk about his problems. Just want you to know, you are not the only one.

Seven years ago, I was so ignorant on this subject, thought I could just marry my wife and bring her here, I was in for a shock, but from experience, can tell you, even a couple of years ago, there was zero record on border crossings into or out of Canada, Canadians were coming down here just as freely. A couple of years ago, my wife and I were inches away from Canada, but she had a green card, we elected not even to cross as we don't know what in the hell is going on today. But we were in Toronto with her USA passport last year, was not much different than coming in from Russia during the cold war.

[Boiler 43,687]

His wife is not Canadian

[NickD 202]

His wife is not Canadian

Should not post before having a cup of coffee, see that now.

[lucyrich 19]

It would be difficult (or impossible really) to prove she came here legally when in fact, she did not. (Legally would mean being inspected at a border which she was not apparently.)

That's the crux of the matter, isn't it? But I'm not so sure she entered without inspection. There's a legal definition, in 8 CFR 235.1 I believe, but am not sure, that if you present yourself to the officer, without committing fraud or misrepresentation, and the officer waves you through without asking the appropriate questions, then you may have satisfied your burden of establishing admissibility to the satisfaction of the officer.

But nobody should rely on my belief of that, because I could easily be wrong. You'd have to look up the appropriate case law, at least, and I'd want to rely on the advise of a qualified attorney.

Furthermore, there's the issue that, when applying for any sort of immigration benefit such as adjustment of status, the alien has the burden of proof via a preponderance of the evidence. The situation may be ambiguous enough that the government can't prove the alien entered without inspection, but the alien can't prove he/she didn't enter without inspection.

[NickD 202]

It would be difficult (or impossible really) to prove she came here legally when in fact, she did not. (Legally would mean being inspected at a border which she was not apparently.)

That's the crux of the matter, isn't it? But I'm not so sure she entered without inspection. There's a legal definition, in 8 CFR 235.1 I believe, but am not sure, that if you present yourself to the officer, without committing fraud or misrepresentation, and the officer waves you through without asking the appropriate questions, then you may have satisfied your burden of establishing admissibility to the satisfaction of the officer.

But nobody should rely on my belief of that, because I could easily be wrong. You'd have to look up the appropriate case law, at least, and I'd want to rely on the advise of a qualified attorney.

Furthermore, there's the issue that, when applying for any sort of immigration benefit such as adjustment of status, the alien has the burden of proof via a preponderance of the evidence. The situation may be ambiguous enough that the government can't prove the alien entered without inspection, but the alien can't prove he/she didn't enter without inspection.

We are talking about a Canada to USA border crossing that I have done many times in a personal vehicle, at Sault Ste. Marie, Thunder Bay, Detroit, Buffalo. Thunder Bay was particularly relaxed, guard was propped on a stool, leaned back again the shed, large brim hat over her eyes, never looked at me nor my vehicle, just asked if I was carrying any firearms, alcohol, or plants, said no, go ahead. No ID's of any kind that were looked at, no ID to my citizenship, she just said go ahead. At Sault Ste. Marie, hundreds of cars were crossing without even being stopped depending on if he price of gas was cheaper in Canada or the USA. Niagara Falls was also extremely lax thousands of cars crossed back and forth. Only time I was every stopped was in Detroit, no ID checks, guess they though my bamboo fishing rod was a plant, but closer look said, that okay. Was never asked if I was a US or Canadian citizen, or even a terrorist, never even checked my drivers' license. That is the way it was and that way for years and years. Only recently did that change.

Also flew many times into Toronto, all they wanted to see was my plane ticket when we had plane tickets. We used Toronto as connection point last November, it was hell, full inspection, passports, long three hour waiting in line, damn near missed our connection. I never want to go to Toronto again, ever.

Just saying, in particular prior to 9/11, never was checked, ever crossing the USA/Canadian border, either way. Never was asked about my citizenship, nothing.

[Krikit 1,163]

It would be difficult (or impossible really) to prove she came here legally when in fact, she did not. (Legally would mean being inspected at a border which she was not apparently.)

She did come here legally and she was inspected at the border.

I thought so too, but now another lawyer we talked to said the Canadian entry stamp and the U.S. visa is enough since they didn't normally do I-94s when you're driving over the border back then, especially if you were from a "friendly" country. I want to believe him but I'm not so sure.

Yes, this is correct.

If she had been inspected she would have had an I 94. If it has been lost she can seek a copy. Sounds like they impersonated Canadians who have different arrangements.

Back then, the CBP officers did not ask for the credentials or the citizenship of each and every traveller in the vehicle. They just spoke with the driver and, if everything seemed okay, they passed you through. UK nationals were not given I-94's like they are now.

irmonkey, it sounds like the second lawyer knows what they're doing. I'm going to move your thread to the AOS From Other Visa forum. You'll find others in the same situation there. Good luck.

[Killer_Clown_2009 0]

It would be difficult (or impossible really) to prove she came here legally when in fact, she did not. (Legally would mean being inspected at a border which she was not apparently.)

Er, she was in a vehicle that crossed the Can/US border. She entered legally. That was her inspection.

[Killer_Clown_2009 0]

Anyway, back to the original topic. It sounds as if you have a pretty strong case for her crossing the border legally. I doubt there are very many British Nationals who sneak across the border without being inspected. I just think it would be very rare. You might want to consult another lawyer.

If I were you though, I would go ahead with your applications. When asked for the I-94 on the form, just write none and add a letter of explanation. This was what I did, as I had also crossed a land border from Canada and had no I-94. Either you will be given a hard time about it or you won't. Your story sounds pretty valid, so I am doubting you will be given a hard time.

[Boiler 43,687]

To adjust in the US through marriage you have to heave entered legally, and even then there are some categories of legal entry that do not allow you to adjust.

It is up to you to substantiate that you qualify.

The issue here is that the OP can not.

So to adjust you would be totally reliant on someone overlooking the issue or giving you a break. That is not usual, usually you qualify or you do not.

BUT there is always a chance, nobody knows what the odds are.

You can improve your chances by submitting whatever circumstantial evidence you have to support your case.

[visacheck 3]

If the OP's wife was canadian, it would be a lot easier for her to say that she entered the border but was not issued an I-94.... unfortunately thats not the case. Canadian entry stamp on her passport and US non immigrant visa does not automatically prove that she entered at the US/Canada border.