what is considered overstay or fraud?

[WSS 0]

I apologize if I'm asking about information that's available elsewhere. I've searched more websites than I can remember though and have not found answers to these questions.

Situation: Canadian girlfriend that wants to stay with me (natural born USA resident) and maybe marry/immigrate in a few months if things go well.

• What is considered "overstaying" your B-2 visa? If you tell the CO/POE your stay is for 3 weeks and end up staying 5 months, is that overstaying? Could saying 3 weeks and staying 5 months end up hurting a future CR-1 application process? It seems overstaying only means staying more than 6 months, but I want to be sure. We do not intend to lie, we're just playing it safe and planning for 3 weeks but think we might likely want to keep extending the stay. (but i am aware that a one way ticket is a red flag)
  
• The B-2 visa seems to only be for people with no future intent to immigrate. Is this true? If in the process of getting a CR-1, is it still possible to apply for a B-2 at the POE if you do not intend to overstay?
  
• If you can still easily get a B-2 while applying for a CR-1, do they allow one to bypass the 6 months limit? Since they know the partner is on their legal way to permanent residence.
  

[VanessaTony 3,567]

1. Overstay is when you overstay the legal period you are allowed to stay. When you enter they give you a "you must leave by" date. When you visit on the VWP you're given 90 days. If you stay 91 days then you overstayed. If you tell CBP you're staying 2 days but change your mind there's nothing wrong with that as long as you haven't passed your legal authorised stay

2. Yes

3. No because this would be illegal and considered an overstay. You return before your authorised stay is up or you could run into issues with the CR-1

Edited May 12, 2011 by Vanessa&Tony

[canadian_wife 1,791]

Since Canadians have this super secret, really special travel arrangement with the US, there is no visa given to travelers. Unless specifically given a limited time in the US, your girlfriend will be admitted for a duration of 180 days - now, if she says she is staying for 3 weeks then legitimatly changes her mind (and doesn't lie...is really planning on 3 weeks and then actually changes her mind) then no worries, she can stay for up to 180 days

Again, if she doesn't lie about it - if she is planning on 5 months, then say 5 months

Yes, if you are in the proceess of a Cr-1 she may apply for admittance into the US - no guarentees though.

Nope, you cannot bypass the 180 rule simply because of marriage to a USC and a pending immigrant petition, she must leave. Now, that doesn't mean she cannot visit again

Oh, did you note that it isn't 6 months...it 180 days?

She should always travel with ties to Canada to help with her crossing - like a lease/mortgage, a job letter, enrollment in school, etc

Good luck

[Harsh_77 716]

CW gave you correct answer, number of days she can live in US is determined by the CBP officer when she enters.

She cannot stay over 180 days no matter if you apply for CR1, going over 180 days is illegal and she would need to return home until the process is complete.

If she has intent of getting married when she enters the US and she tell CBP officer she is only visiting, then that illegal / fraud.

[WSS 0]

Thank you all for the responses. They are certainly very helpful.

I think I worded one of my questions unclearly though. What I meant to say is... If she comes here for a month, ends up staying 5-6 months instead, and we decide to marry during that time... Is there a fair chance of her returning to Canada and then being able to gain another B-2 visa for 6 months based on our pending CR-1? The CR-1 can take anywhere from 6 to 12 months, which can be significantly longer than a single B-2 visa. We do not intend to ever overstay.

[stephiejoyce 0]

WSS -

From my understanding, a B2 visa is for NONimmigrants. The momment you marry and apply for CR1, you are requesting immigration. I would be under the assumption that obtaining a second B2 would be difficult. I could be wrong though. However, because Canadians don't officially need a visa to visit, a formal B2 may not be needed/necessary. She should still be allowed to visit her "husband" or "fiance" at any time, provided she tells the truth and continues to show ties to Canada.

[WSS 0]

WSS -

From my understanding, a B2 visa is for NONimmigrants. The momment you marry and apply for CR1, you are requesting immigration. I would be under the assumption that obtaining a second B2 would be difficult. I could be wrong though. However, because Canadians don't officially need a visa to visit, a formal B2 may not be needed/necessary. She should still be allowed to visit her "husband" or "fiance" at any time, provided she tells the truth and continues to show ties to Canada.

The showing ties thing is what I wonder about. She'll need to break of many of her ties (job, home) in order for "us" to even really work. She does have family there, and there is the fact that we're going the legal route. It also seems that overstaying a B-2 is forgiven during a CR-1 interview, so it would make sense if they didn't care about issuing them since you could technically cheat the system anyway with no consequence.

[Harsh_77 716]

The showing ties thing is what I wonder about. She'll need to break of many of her ties (job, home) in order for "us" to even really work. She does have family there, and there is the fact that we're going the legal route. It also seems that overstaying a B-2 is forgiven during a CR-1 interview, so it would make sense if they didn't care about issuing them since you could technically cheat the system anyway with no consequence.

Once you apply for CR1 its upto the BP officer if (s)he would let your wife enter the country.

Worst case scenario is your wife is not allowed to enter US once you start CR1 process, all you will have to do is wait out 5-6 months and in that time her paper work should be complete and she would be able to travel on CR1 to US.

[stephiejoyce 0]

The best ties she can keep then is a canadian bank account, maybe a car title (unless she's bringing a car)... anything else that you can think of. The more, the better.

The problem is that her B2 (180 days) will expire before you have the CR1. I, personally, would not break that 180 days, even if it is forgiven with the CR1 interview. She should go back to Canada for a period of time (whatever you decide) and then try to re-enter. It'll be up to the BP officer at that point.

When I was going through this process, my husband was always honest with BP... and they always let him in. He did get held up at one POE for additional questioning once, but after 30 mins, was still let in. If you're honest, it usually works out for the best.

[WSS 0]

The problem is that her B2 (180 days) will expire before you have the CR1. I, personally, would not break that 180 days, even if it is forgiven with the CR1 interview. She should go back to Canada for a period of time (whatever you decide) and then try to re-enter. It'll be up to the BP officer at that point.

When I was going through this process, my husband was always honest with BP... and they always let him in. He did get held up at one POE for additional questioning once, but after 30 mins, was still let in. If you're honest, it usually works out for the best.

I would really like to be able to have her go back and come back too - keep things straight and by the books. I just don't know if by that point we'd be willing to risk her not getting let back in due to an ornery officer. We really don't do well with time apart because we already have had to deal with it so much.

However, if it seems likely that they'd let her back in, we might go that route.