Does an overstay past the 6 month rule cause problems with I-129F?

[2cerises 0]

Hi there,

I'm fairly new at this ...we've filed for our I-129F, still awaiting NOA2 (any day now!). I'm the Canadian fiancee, and am going to visit my honey in the US for a couple of weeks. I have already spent roughly 5 and a half months out of the past year in the US visiting him, so this trip would actually be a slight overstay past the 6 month rule Canadians are allowed.

My question is, will overstaying by merely a week or so cause problems later at my interview? (I noticed that in the form we have to write the dates of all our visits to the US.)

Thanks!

[payxibka 10,045]

Hi there,

I'm fairly new at this ...we've filed for our I-129F, still awaiting NOA2 (any day now!). I'm the Canadian fiancee, and am going to visit my honey in the US for a couple of weeks. I have already spent roughly 5 and a half months out of the past year in the US visiting him, so this trip would actually be a slight overstay past the 6 month rule Canadians are allowed.

My question is, will overstaying by merely a week or so cause problems later at my interview? (I noticed that in the form we have to write the dates of all our visits to the US.)

Thanks!

disclosure required... should be no issue though

[HeatDeath 430]

Hunting around on some Snowbirds (Canadians, usually senior citizens, who spend literally all of the winter months RVing around the southern US) sites and forums, it seems that if a Canadian spends more than 183 days in any calendar year they become considered as a "resident alien" for tax purposes. It becomes necessary to file a special form with the IRS to avoid being taxed on Canadian pension income. This occurs even if you never overstay any particular visa or admittance term.

Their community seems concerned over the increasing computerization of the Canadian border, and the idea that the precise durations of their stays in the US are being more carefully tracked.

More research would be necessary to confirm this, but it seems to me that the primary problem in this trip taking the OP over 182 days of stay in the US is taxation based, not immigration based. I would expect it to be less, or at most as much of a problem with USCIS as a standard visa overstay: not advisable, but not showstopping either. Full disclosure is, of course, absolutely mandatory.

A more immediate problem may be with clearing immigration and customs at the Canadian airport. The IO may very well see on his computer that this trip would put you over, and simply deny entry. At the very least they will require proof of significant ties to Canada.

I understand the importance of Valentine's Day. This will be the first I've actually been able to spend with my wife. but I would strongly recommend, if at all possible, rearranging the arrival and departure dates with the airline to keep your number of days in the US this year under 182, even if that means your trip is only a few days long, right on Valentine's Day. They will probably charge a fee of approximately 100 dollars for this, but better that then to risk being denied entry altogether.

Edited January 26, 2010 by HeatDeath

[Archeon 0]

Personally, for the sake of your future together, I wouldn't risk giving them any reason to disqualify or reject your visa.

[birdnerd 5]

More research would be necessary to confirm this, but it seems to me that the primary problem in this trip taking the OP over 182 days of stay in the US is taxation based, not immigration based.

Something else you need to watch out for is potentially losing your provincial health care - I know Ontario has issues if you're out of the country for more than half the year.

[K and L 27]

Hunting around on some Snowbirds (Canadians, usually senior citizens, who spend literally all of the winter months RVing around the southern US) sites and forums, it seems that if a Canadian spends more than 183 days in any calendar year they become considered as a "resident alien" for tax purposes.

It's actually not 183 in any one year. They have a formula for it.

y1 => # of days in the us in the current year

y2 => # of days in the us last year

y3 => # of days in the us two years ago

If if the sum of y1 + y2/3 + y3/6 is more than 183, you are a resident alien for tax purposes.

So if you've been in the US 180 days this year and 15 last year, you are a resident alien (180 + 5 = 185), as far as taxation goes. But if you spent 120 days this year, 120 days last year, and 120 days the year before (120 + 40 +20 = 180), you're not a resident alien.

However, a new year has started, and she's spent 0 days of 2010 in the US, so taxation is probably irrelevant (besides, you'll more than likely end up being married by the end of 2010, in which case you'd probably waive your right to be treated as a nonresident alien in order to gain the larger deduction by filing married/joint).

The larger issue is whether or not border patrol will let her in with an ongoing K1. I know the VWP can have issues entering with a pending K1, and I don't know if Canadians have the same issue.

Edited January 26, 2010 by K and L

[Nik+Heather 121]

Personally, for the sake of your future together, I wouldn't risk giving them any reason to disqualify or reject your visa.

What she's talking about will in no way jeopardize her K1 visa or adjustment. The only risk is that some CBP officer may deny her entry (being denied on a visit is not grounds for visa denial - UNLESS you are found to be misrepresenting yourself).

OP you got us all excited because you said the "Overstay" word, but as was mentioned, this isn't really an overstay, it's something else. Check out the visiting FAQ for ties to Canada which you may find you need to show this time. Also, when Nik visited between NOA1 and NOA2, showing the receipt notice was very helpful when he got pulled into secondary inspection.

http://www.visajourney.com/forums/index.ph...mp;page=k1visit

Edited January 26, 2010 by Nik+Heather

[sachinky 465]

Even if you're denied at POE, it will not impact your K-1.

[2cerises 0]

Hunting around on some Snowbirds (Canadians, usually senior citizens, who spend literally all of the winter months RVing around the southern US) sites and forums, it seems that if a Canadian spends more than 183 days in any calendar year they become considered as a "resident alien" for tax purposes. It becomes necessary to file a special form with the IRS to avoid being taxed on Canadian pension income. This occurs even if you never overstay any particular visa or admittance term.

Their community seems concerned over the increasing computerization of the Canadian border, and the idea that the precise durations of their stays in the US are being more carefully tracked.

More research would be necessary to confirm this, but it seems to me that the primary problem in this trip taking the OP over 182 days of stay in the US is taxation based, not immigration based. I would expect it to be less, or at most as much of a problem with USCIS as a standard visa overstay: not advisable, but not showstopping either. Full disclosure is, of course, absolutely mandatory.

A more immediate problem may be with clearing immigration and customs at the Canadian airport. The IO may very well see on his computer that this trip would put you over, and simply deny entry. At the very least they will require proof of significant ties to Canada.

I understand the importance of Valentine's Day. This will be the first I've actually been able to spend with my wife. but I would strongly recommend, if at all possible, rearranging the arrival and departure dates with the airline to keep your number of days in the US this year under 182, even if that means your trip is only a few days long, right on Valentine's Day. They will probably charge a fee of approximately 100 dollars for this, but better that then to risk being denied entry altogether.

The 5 and a half months time in US was all in 2009, and I have not yet spent any part of 2010 in the US. However, I thought that for immigration purposes the 6 months we are allowed to visit is within any one year period, not from Jan-Dec. (I'm assuming for taxation it is Jan-Dec though, but hopefully that doesn't come into play.)

I am aware that I may be refused at the POE... in fact I was refused entry once already last year. We were driving down and I was unemployed at the time (I had quit my job so that we could spend some time together). They let me in later but gave me an I-94 and limited my stay to 2 months, which I adhered to. This time I am employed (well, I start as soon as I get back from my trip - I have the employers letter of offer/contract and will bring it with me) and I plan to bring all my papers from the I-129F. Hopefully they will let me through.

I do not think that they will even see how many days I've stayed in the US because the other two trips were driving, and they do not stamp our passports when crossing by land. They do have a record of the 2 months during the last visit however, via the I-94.

[2cerises 0]

What she's talking about will in no way jeopardize her K1 visa or adjustment. The only risk is that some CBP officer may deny her entry (being denied on a visit is not grounds for visa denial - UNLESS you are found to be misrepresenting yourself).

OP you got us all excited because you said the "Overstay" word, but as was mentioned, this isn't really an overstay, it's something else. Check out the visiting FAQ for ties to Canada which you may find you need to show this time. Also, when Nik visited between NOA1 and NOA2, showing the receipt notice was very helpful when he got pulled into secondary inspection.

http://www.visajourney.com/forums/index.ph...mp;page=k1visit

Could you please explain, what does that mean to "misrepresent myself"? I have no intention of lying, or staying, or jeoprodizing our visa application in any way naturally. It was frightening enough when I was denied entry that one time - I was so scared and thought I was in trouble and that we might have problems with the immigration process we knew we would have to go through later on etc.. but I have since read on some VJ posts that it (the denial of entry) does not affect the approval decision.

Sorry to incorrectly call it an overstay - if that's not what it is, do you know what it is technically called then? I thought that it was an overstay because of the 6 month limit for tourist entry, B-2 I think it's called, but am not 100% sure.

[Kathryn41 3,205]

2 posts removed at the poster of the posts' request.

Edited January 29, 2010 by Kathryn41

[Carlawarla 1]

It's 2010. You haven't been there since 2009. Your 5 months there was not continuous. I wouldn't worry about anything. You can visit during the process as long as you have proof of ties to Canada. You've experienced that already in that you have said you were denied entry a couple of times due to not working or something. You're visiting. End of story.

Canadians don't enter on a B-2, or the VWP, we just enter, if we're allowed. You know the deal now. If you're allowed in, you are, and don't stay past 6 months. If you don't get in, it will be because of not having enough ties.

Come visit us in the Canada forum for these type of specific questions. There ARE differences between Canada/US visiting.

http://www.visajourney.com/forums/index.php?showforum=93 - for the Canada Forum

http://www.visajourney.com/forums/index.php?showtopic=191858 - Second post has specific questions as they relate to this process and Canada

http://www.visajourney.com/wiki/index.php/Canada - this is for the Canada Wiki Guide - again, specifics for Canadians going through this process

[Nik+Heather 121]

Could you please explain, what does that mean to "misrepresent myself"? I have no intention of lying, or staying, or jeoprodizing our visa application in any way naturally. It was frightening enough when I was denied entry that one time - I was so scared and thought I was in trouble and that we might have problems with the immigration process we knew we would have to go through later on etc.. but I have since read on some VJ posts that it (the denial of entry) does not affect the approval decision.

http://www.lectlaw.com/def2/m127.htm - basically, misrepresentation is when you make a statement you know to be false in order to mislead the person you are making the statement to.

I wasn't meaning to imply that you were going to misrepresent yourself - only qualifying the statement for other readers.

You're right, if you are denied entry "without prejudice" (legalese for simply not admissible, but they won't hold it against you), then it won't affect the outcome of your visa decision.

[2cerises 0]

It's 2010. You haven't been there since 2009. Your 5 months there was not continuous. I wouldn't worry about anything. You can visit during the process as long as you have proof of ties to Canada. You've experienced that already in that you have said you were denied entry a couple of times due to not working or something. You're visiting. End of story.

Canadians don't enter on a B-2, or the VWP, we just enter, if we're allowed. You know the deal now. If you're allowed in, you are, and don't stay past 6 months. If you don't get in, it will be because of not having enough ties.

Come visit us in the Canada forum for these type of specific questions. There ARE differences between Canada/US visiting.

http://www.visajourney.com/forums/index.php?showforum=93 - for the Canada Forum

http://www.visajourney.com/forums/index.php?showtopic=191858 - Second post has specific questions as they relate to this process and Canada

http://www.visajourney.com/wiki/index.php/Canada - this is for the Canada Wiki Guide - again, specifics for Canadians going through this process

Thanks for those links Carlawarla! I found it a bit hard to navigate through the site initially, but I'm slowly figuring it out!

Interestingly, on the second link you sent, the poster included a link to the U.S. Customs and Border Patrol site which actually states that you cannot spend more than 90 days on a visit, if you intent to visit for more than 90 days you need a visa. That I didn't know!

https://help.cbp.gov/cgi-bin/customs.cfg/ph...amp;p_topview=1

Thanks again, see you in the Canadian forum!

[2cerises 0]

http://www.lectlaw.com/def2/m127.htm - basically, misrepresentation is when you make a statement you know to be false in order to mislead the person you are making the statement to.

I wasn't meaning to imply that you were going to misrepresent yourself - only qualifying the statement for other readers.

You're right, if you are denied entry "without prejudice" (legalese for simply not admissible, but they won't hold it against you), then it won't affect the outcome of your visa decision.

No problem, I didn't think you were implying that. Thanks for the definition.

I've actually ensured that I'm now under the 6 months total for time allowed in the U.S.. I leave on Tuesday!!! I'm so excited! I hope hope hope that they let me enter! Fingers crossed!

Thanks to all for your advice!