Overstay Close Call

[charlesandanna 2]

I'm a Canadian who has been staying with my fiance in the US. We left Canada on August 18. For various reasons, we thought we would be okay to drive back to Canada on Feb. 26 when she has spring break from school. After doing some research, we realized that this was not a good idea and that I should return to Canada pronto. I'm leaving on a bus tomorrow night and will be crossing into Canada on Thursday February 18th.

Depending on how you count it this is 184 days. Is this going to be a major problem? Will it affect my K1 application? I plan on returning with my fiance on March 6. Is this pushing our luck? Thanks in advance.

[canadian_wife 1,823]

Leaving the US in February after staying there for 6 months and then trying to re-enter in March, although perfectly legal, is unlikely to gain you entrance into the US. Plus with a slight overstay it is unlikely you will be granted entrance

The 4 day overstay should be OK as long as you disclose everything on your application.

Good luck.

[john_and_marlene 162]

You will probably need a visa for future entries since you overstayed.

You might be better off staying, getting married, and adjusting status without leaving.

[canadian_wife 1,823]

Canadians do not require visas to visit the US - even when an overstay is in question

[Sc0tt28 26]

I'm a Canadian who has been staying with my fiance in the US. We left Canada on August 18. For various reasons, we thought we would be okay to drive back to Canada on Feb. 26 when she has spring break from school. After doing some research, we realized that this was not a good idea and that I should return to Canada pronto. I'm leaving on a bus tomorrow night and will be crossing into Canada on Thursday February 18th.

Depending on how you count it this is 184 days. Is this going to be a major problem? Will it affect my K1 application? I plan on returning with my fiance on March 6. Is this pushing our luck? Thanks in advance.

Everyone gets so tied up over this "180 days" bit. Its not a matter of 180 days vs. 6 months. Its about intent. How can a person realistically say that they live in another country when the vast majority of their time is spent in the US?

8 CFR, Section 316.5(a) reads: an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.

The part where it says "without regard to the alien's intent", tends to confuse some people. What it means (and there is a district court case about this if you want to look it up) is that renting an apartment in Canada and yet having one's domicile, or principal dwelling place in the US, does not translate to mean that your "intent" is to move back to Canada.

In other words, if your residence is in the US, then that is where you live. It doesn't matter if you pay rent, utilities, have a job, bank accounts, etc. in Canada or anywhere else, because if you have all those things and yet you don't actually spend any time there then your "actual dwelling place" is in the US.

[VanessaTony 3,567]

I'm a Canadian who has been staying with my fiance in the US. We left Canada on August 18. For various reasons, we thought we would be okay to drive back to Canada on Feb. 26 when she has spring break from school. After doing some research, we realized that this was not a good idea and that I should return to Canada pronto. I'm leaving on a bus tomorrow night and will be crossing into Canada on Thursday February 18th.

Depending on how you count it this is 184 days. Is this going to be a major problem? Will it affect my K1 application? I plan on returning with my fiance on March 6. Is this pushing our luck? Thanks in advance.

According to time and date (Here's my calculation) it's 185 days.... but bans etc only get started when you have overstayed by 180 days so you're fine in that regard.

Make sure you mention the overstay (if asked on any form, or in person) so that you don't get into trouble for lying.

You will probably get questioned pretty hard at the border (when trying to re-enter) but you might also get no issue what so ever. I don't know how well you will go heading back so soon but it can't hurt to try. i have read that some people who haven't shown sufficient ties to their home, have been told they must wait 6 months before entering again, so that's the only bad thing that might come of it, but it doesn't affect your K1 application so if your K1 is approved in that "wait 6 months before trying again" then you can still enter whenever.

Hope that makes sense. You did the right thing by getting back ASAP. Keep your bus ticket as proof of when you headed back, just in case. Good luck getting in on March 6.

Edited February 16, 2010 by Vanessa&Tony