Canadian citizen, immigrant visa to the USA and some issues

[KKira 1]

Hello, 

I wonder if someone can add any thoughts to the following situation: 

 

My sister, a citizen of Russia, came to the USA in 1994 with B2 visa. She was 19. She overstayed her visa (6 years), applied for permanent residence in Canada (based on points/work) and in February 2000 she moved to Canada. She applied for a tourist visa to the USA in 2000 and 2001 in Toronto - she wanted to come to see her family. She was denied. In 2002, when she still had a Russian passport, she went again to the Consulate in Toronto and after talking to the consular officer, she was told to apply for a waiver. She did it. In July 2002 she got visa (she was ineligible to get a visa under section 212(a)(9)(B)(i)(II) - that was written in her passport) - she got a one entry B2 visa. That is printed on her visa:  212(d)(3)(A) waiver of 212 (a)(9)(B)(i)(II) granted by INS.

My sister went to NYC, stayed for 6 days (I had a baby) and came back to Canada. Then, in November she applied again for a B2 visa to come and be a godmother of my daughter. She again was told to submit a letter from the employer, bank statement, proof of address and she got a new tourist visa, multiple entries, valid for 2 years, with the exact annotation about waiver granted by INS. 

Sister came to visit me for a few days, then she visited me several times (never longer than 5-7 days). In September 2004 she got a citizenship in Canada, and she came to the USA using a Canadian passport (with no waiver/visa imprinted). She did it maybe 5 times, no issues on the border. In April 2005 she came to the USA and stayed. I submitted an immigrant visa petition for her years ago (I am a US citizen), it was approved, currently the documents are in NVC and now, after we met a lawyer, he told us, that my sister - as Canadian citizen - because she did not receive form I-94 at the border, she is admitted for duration of status, so she has no ban and she can receive an immigrant visa in Canada (she was not found deportable by any judge or immigration official). But as it seems to be easy, we started digging dipper: but what about her previous overstay? I mean she got a waiver but it was for non-immigrant visa, am I right? Or this waiver was good also for the immigrant visa that she can get through my sponsorship? I am not familiar so I will appreciate any input. We met 4 lawyers: conclusion: 1 of them say she is good to go, 2 others say 'no', 1 said: "It's a good question". 

 

Thanks a lot for any information, thoughts, anything. 

[NigeriaorBust 4,087]

Spoiler

 

  Canadians can come visit without getting a specific stay but they can't stay more than 6 months.  She is overstayed and I imagine that she has worked illegally or collected benefits she isn't entitled to .  She will not be getting a visa via you petition

[SusieQQQ 11,584]

Can you clairfy if I am understanding something correctly: your sister came in as a tourist from Canada in 2005 and has stayed ever since? She’s been here 13 years now since that entry?

[Boiler 43,541]

Only one way of finding out it to go to the interview, she will be given a visa or given the opportunity to file a waiver.

Edited July 19, 2018 by Boiler

[KKira 1]

2 minutes ago, SusieQQQ said:

Can you clairfy if I am understanding something correctly: your sister came in as a tourist from Canada in 2005 and has stayed ever since? She’s been here 13 years now since that entry?

Yes, but Canadian citizen are treated like F/M visitors unless they get B2 stamp in their passports. If not, they are admitted for duration of status. And it does not carry 3/10 years ban. 

[KKira 1]

9 minutes ago, NigeriaorBust said:

  Reveal hidden contents

 

  Canadians can come visit without getting a specific stay but they can't stay more than 6 months.  She is overstayed and I imagine that she has worked illegally or collected benefits she isn't entitled to .  She will not be getting a visa via you petition

DOS CABLE – CANADIANS AND UNLAWFUL PRESENCE 

Visas
E.O. 12958: N/A
Tags: CVIS

Subject: Advisory Opinion: INA 212(a)(9)(B) and Canadians

Ref: (a) Montreal 1497, (b) Victars E57819, (c) 97 State 23545, (d) State 60539

1. Montreal’s Reftel asks if the unlawful presence inadmissibilities, imposed by INA (a)(9)(B)1 and 2, apply to Canadians, and Commonwealth Citizens Resident in Canada, who enter the United States following inspection by and INS officer, but have received neither a visa nor an I-94.
2. The INS General Counsel’s office has informed VO that, a Canadian, or Commonwealth Citizen Resident in Canada, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J.

Edited July 19, 2018 by KKira

[Crazy Cat 39,328]

I agree with @Boiler.  Sometimes, the only way to get real answers regarding immigration is to go to the interview.

[Boiler 43,541]

For the sake of clarity there are more than one type of ban, I can see a misrep case if they wanted to go that way.

[SusieQQQ 11,584]

16 minutes ago, KKira said:

Yes, but Canadian citizen are treated like F/M visitors unless they get B2 stamp in their passports. If not, they are admitted for duration of status. And it does not carry 3/10 years ban. 

As someone pointed out above though, she’s presumably been working or doing something in violation of that status ..unless you’ve been fully funding a lifestyle of leisure for your sister?

 

Also I presume she’s going to be subject to that new policy about d/s? Isn’t the effective date pretty soon now?

Edited July 19, 2018 by SusieQQQ

[SusieQQQ 11,584]

Any adjustment applicant is ineligible to adjust status under INA 245(a) if, other than through no fault of his or her own or for technical reasons, [1] he or she has ever:

 

•Failed to continuously maintain a lawful status since entry into the United States; [2] or

 

•Violated the terms of his or her nonimmigrant status. [3]

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html

working as a non immigrant is a violation of status even if admitted under d/s

[Crazy Cat 39,328]

I also see a possible misrep.......don't those result in a lifetime ban?

[KKira 1]

24 minutes ago, NigeriaorBust said:

  Hide contents

 

  Canadians can come visit without getting a specific stay but they can't stay more than 6 months.  She is overstayed and I imagine that she has worked illegally or collected benefits she isn't entitled to .  She will not be getting a visa via you petition

 

That's what I found by myself (sorry, I just copied it and pasted over here without fixing capital letters): USCIS website, I-601 Administrative Appeals Office decisions. 

 

 

U.S. Citizenship and Immigration Services

MATTER OF T-H-P-

 

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN.29.2018

 

APPEAL OF DETROIT. MICHIGAN FIELD OFFICE DECISION

 

APPLICA TION: FORM 1-601. APPLICA TION FOR W AIVER OF GROUNDS OF

INADMISSIBILITY

 

The Applicant, a native of India and citizen of Canada currently residing in the United States. has applied to adjust status to that of a lawful permanent resident. A foreign national seeking to adjust status must be ·'admissible'' or receive a waiver of inadmissibility. The Applicant has been found inadmissible for unlawful presence and seeks a waiver of that inadmissibility. See Immigration and Nationality Act (the Act) section 212(a)(9)(B)(v). 8 U.S.C. § 1182(a)(9)(B)(v). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver if refusal of admission would result in extreme hardship to a qualifying relative or qualifying relatives.

 

The Director of the Detroit, Michigan Field Office denied the application. concluding that the Applicant did not establish that either of his qualifying relative parents would experience extreme hardship if he is denied admission to the United States.

 

On appeal, the Applicant asserts that he is not inadmissible for unlawful presence. and his parents would experience extreme hardship if he is denied admission to the United States.

 

Upon de novo review. we will withdraw the decision of the Director and remand the matter to the Director for further proceedings consistent with this opinion.

 

I. LAW

A foreign national who has been unlawfully present in the United States for 1 year or more. and who again seeks admission within I0 years of the date of departure or removal from the United States. is inadmissible. Section 212(a)(9)(B)(i) of the Act. 8 U.S.C. § 1182(a)(9)(B)(i). A foreign national is deemed to be unlawfully present in the United States if present in the United States after the expiration of the period of authorized stay or if present in the United States without being admitted or paroled. Section 212(a)(9)(B)(ii) of the Act.

This inadmissibility may be waived as a matter of discretion if refusal of admission would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Section 212(a)(9)(B)(v) ofthe Act. 8 U.S.C. § 1182(a)(9)(B)(v).

Matter ofT-H-P-

 

 

II. ANALYSIS

The issues raised on appeal are whether the Applicant is inadmissible for unlawful presence, whether he has established extreme hardship, and whether he merits a favorable exercise of discretion. On appeal, the Applicant submits additional documentation, and the record now includes, but is not limited to, medical records, financial records, and letters in support of the Applicant's good character. We find that the Applicant is not inadmissible under section 212(a)(9)(B)(i)(II) of the Act and does not require a waiver of inadmissibility. Therefore, we need not address whether he has established extreme hardship to a qualifying relative and whether he would merit a favorable exercise of discretion.

 

The record reflects that the Applicant entered the United States as a nonimmigrant visitor in or around September 1998, and at the time he was a Canadian permanent resident and Indian citizen. He departed the United States in April 200I, and after becoming a Canadian citizen. he returned to the United States in June 2001 as a nonimmigrant visitor.

 

Prior to March 17, 2003, Canadian permanent residents who were citizens of British Commonwealth countries, including India, were not required to present a passport and visa when seeking admission as a nonimmigrant. See Removal of Visa and Passport Waiver for Certain Permanent Residents ofCanada and Bermuda. 68 Fed. Reg. 5190 (Jan. 31, 2003) (eliminating the passport and visa waiver for certain residents of Canada. including nationals of British Commonwealth countries, and stating that such individuals would now be issued a Form I-94 Arrival/Departure Record as evidence of the terms of their admission).

 

The record indicates that the Applicant was not issued a Form I-94 when he was admitted to the United States in September 1998 because at the time, passport and visa requirements were waived for Indian nationals who were Canadian permanent residents. '·Nonimmigrants, who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S [duration ofstatus] for purposes of determining unlawful presence." Adjudicator's Field Manual. Chapter 40.9.2(b)(l )(E)(iii). Nonimmigrants admitted for duration of status do not begin to accrue unlawful presence until the date users finds a nonimmigrant status violation while adjudicating a request f()r an immigration benefit or an immigration judge makes a determination of nonimmigrant status violation during exclusion, deportation, or removal proceedings. !d. at Chapter 40.9.2(b)( I )(E)(ii).

 

The Applicant's 1998 admission is treated as an admission for duration of status. There is no indication that during his stay in the United States from September 1998 until April 2001, he was found to have violated his nonimmigrant status by USCIS or an immigration judge. Therefore. he did not accrue unlawful presence during any time between September 1998 and April 200I. The Applicant is not inadmissible under section 212(a)(9)(B)(i)(Il) of the Act. as he did not accrue one year or more of unlawful presence before departing the United States in 2001, and his waiver application is unnecessary.

[KKira 1]

7 minutes ago, SusieQQQ said:

Any adjustment applicant is ineligible to adjust status under INA 245(a) if, other than through no fault of his or her own or for technical reasons, [1] he or she has ever:

 

•Failed to continuously maintain a lawful status since entry into the United States; [2] or

 

•Violated the terms of his or her nonimmigrant status. [3]

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html

working as a non immigrant is a violation of status even if admitted under d/s

She is not applying for an adjustment of status. She is applying for an immigrant visa. Please see the AAO decision that I posted a few moments ago. 

[KKira 1]

15 minutes ago, SusieQQQ said:

As someone pointed out above though, she’s presumably been working or doing something in violation of that status ..unless you’ve been fully funding a lifestyle of leisure for your sister?

 

Also I presume she’s going to be subject to that new policy about d/s? Isn’t the effective date pretty soon now?

Yes, she will be a subject to a new policy in August. 

 

That's what I found about working in the USA when someone applies for an immigrant visa: 

 

Q: I have a period of unauthorized employment. Will consular processing be of any help to my case?

A: Unauthorized employment is a bar to adjustment of status in the United States. If you have worked for any period without proper legal authorization, then you are statutorily barred from adjusting status unless there is an exception that applies in your case. Section 245(c) of the Immigration and Nationality Act (INA) states specifically that adjustment of status in the United States is not available to any alien who accepted unauthorized employment prior to filing an application to adjust status or to any alien who has failed to continuously maintain lawful status since he or she entered into the United States. Therefore, you would not be able to obtain a green card in the United States if you were ever out of status for any period.

However, having a period of unauthorized employment is normally not a problem when you obtain your immigrant visa through a U.S. embassy or consulate outside the United States through consular processing. Effectively, you have already removed yourself from the United States, causing any period of unauthorized employment to be nullified or cured. The consulate applies a different set of laws so there is not a problem with unauthorized employment. In the United States, USCIS has discretion on whether or not to grant adjustment of status and unauthorized employment is a negative factor that works against you. However, U.S. consulates abroad must issue the visa to you unless they find that you are disqualified. USCIS in the United States looks at cases in a different light; they see their job as enforcing the immigration laws of America. The U.S. consulates abroad, on the other hand, simply view their job as issuing visas. Therefore, it is less likely that they will ask or care about any period of unauthorized employment that you may have.

[KKira 1]

I personally know a lot of F or J visa holders who were here for a few years, worked, paid taxes, were sponsored, came back to their native countries and were issued immigrant visas. My question is more about the previous unlawful presence vs having a Canadian passport now.