Overstay *stressing myself out again*

[TYosemite 14]

Okay so something has come up that has started to stress me out a little (what’s new)& I’m looking for advice.

 

Up until February of this year I’d been travelling back & forth across the border to visit my now fiancé since 2018 (we were just dating at the time).

 

Now I’m a Canadian Permanent Resident, with a British Passport so I’m part of the VWP. I have a valid ESTA. Once my I-94 ran out after & I re-entered I was granted a new one. 

 

None of the border officers really had an issue with this since I lived 20 minutes from the border to Niagara Falls, NY and would literally walk across the Rainbow Bridge.

However because of my UK passport, regardless of the fact I’ve lived in Canada since I was 12.

I’m only allowed 90 days in the US as opposed to the 180 Canadian Citizens are allowed. 

I have never stayed in the US for more than 10 days at a time (most of the time honestly it was 4-5 including the days I entered & departed, 10 days was just when we went on vacation) & then I would leave for AT LEAST a week as my fiancé and I took turns visiting one another every other week.

 

I’ve never overstayed on any I-94’s but have been granted more than one within any rolling year.
Again, CBP never raised any issues with this, it was just a “ok pay the $13 here’s a new one”.

In fact I was instructed to apply for ESTA so that I didn’t need to spend so much time filling out the form for the I-94 every time I needed a new one.

I’m now worried I’ll be denied at my K1 Visa interview for overstaying as technically within a rolling year I did spend more than 90 day’s in the US (although not consecutively). 

Are they just looking at overstays for consecutive days on one visa/I-94 or days total within a rolling year?

[JacobP 185]

It doesn't sound like you did anything wrong. It sounds like CBP let you in, gave you an I-94 with an authorized period you could stay, and then you left before that period expired every time. I believe they only concern is if you did overstay a particular authorized period, and the 90 days given by ESTA are for consecutive periods.

Edited August 10, 2020 by JacobP

[SteveInBostonI130 3,319]

From what you stated, it seems CBP let you enter and exit on the same I-94 for the 5-10 day visits until the expiry date of the I-94.  And then they made you request a new I-94 for the next batch of 90 days?

 

If you check your I-94 records online, just verify that you never overstayed on any one of them.  If so (not overstayed), then you should be fine.  USCIS cares that you never violated any visa/ESTA/VWP durations.  I don't believe they care how many actual days you spent in the US.

[geowrian 22,335]

Each entry on the VWP is for 90 days. So long as you never stayed more than 90 days at on a single visit, you did not ever overstay.

Even then, for the K-1 visa, there would need to be at least 180 days of overstay to be denied because of overstay. That's when the 3 year bar kicks in.

 

Side note: Normally somebody cannot just go to Canada or Mexico to "reset" the I-94. People have tried or wanted to do this as a way around the 90 day limit. But since you are a resident of Canada, each return to Canada and subsequent admission is treated as a completely new entry.

 

If you have spent a considerable cumulative time in the US, it might be worth checking if you met the substantial presence test for IRS purposes to be considered a resident alien and subject to US tax requirements.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

[TYosemite 14]

6 hours ago, JacobP said:

It doesn't sound like you did anything wrong. It sounds like CBP let you in, gave you an I-94 with an authorized period you could stay, and then you left before that period expired every time. I believe they only concern is if you did overstay a particular authorized period, and the 90 days given by ESTA are for consecutive periods.

Yeah I never overstayed in one particular I-94, I was really careful about that because that’s what I believed. 
But after seeing someone talk about them counting the days for an entire rolling year I got incredibly worried. 

[TYosemite 14]

6 hours ago, SteveInBostonI130 said:

From what you stated, it seems CBP let you enter and exit on the same I-94 for the 5-10 day visits until the expiry date of the I-94.  And then they made you request a new I-94 for the next batch of 90 days?

 

If you check your I-94 records online, just verify that you never overstayed on any one of them.  If so (not overstayed), then you should be fine.  USCIS cares that you never violated any visa/ESTA/VWP durations.  I don't believe they care how many actual days you spent in the US.

Yeah that’s what would happen. 
I would enter & exit the US every other week for a few days before going back home. 
 

If I knew I wasn’t going to be back before my I-94 ran out, I would take it out of my passport & hand it to CBSA on the way back into Canada.

 

Then when I would re-enter the US, I would be granted another I-94 & pay the fee for it. 

[TYosemite 14]

4 hours ago, geowrian said:

Each entry on the VWP is for 90 days. So long as you never stayed more than 90 days at on a single visit, you did not ever overstay.

Even then, for the K-1 visa, there would need to be at least 180 days of overstay to be denied because of overstay. That's when the 3 year bar kicks in.

 

Side note: Normally somebody cannot just go to Canada or Mexico to "reset" the I-94. People have tried or wanted to do this as a way around the 90 day limit. But since you are a resident of Canada, each return to Canada and subsequent admission is treated as a completely new entry.

 

If you have spent a considerable cumulative time in the US, it might be worth checking if you met the substantial presence test for IRS purposes to be considered a resident alien and subject to US tax requirements.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

Thank you for this, I was incredibly worried after someone told me in my K1/Spousal Bisa group on Facebook that they counted it for the entire rolling year regardless. 
 

I definitely didn’t stay for more that 90 days on one I-94. In fact I think the most days I was present in an entire rolling year period was 120 but definitely not consecutive. 
 

Also my petition was approved by NVC & sent to Montreal in March, I would think my petition wouldn’t be approved if there was something like an overstay? I haven’t been the the US since February (before it was approved) so no extra days that the consulate would see than what NVC saw. Or do they not make those decisions?
 

Thanks, I’ll check this link out. 
If I did meet the requirement for US tax requirements, will this affect my K-1 Visa? 

[JFH 12,189]

5 hours ago, TYosemite said:

Thank you for this, I was incredibly worried after someone told me in my K1/Spousal Bisa group on Facebook that they counted it for the entire rolling year regardless. 
 

I definitely didn’t stay for more that 90 days on one I-94. In fact I think the most days I was present in an entire rolling year period was 120 but definitely not consecutive. 
 

Also my petition was approved by NVC & sent to Montreal in March, I would think my petition wouldn’t be approved if there was something like an overstay? I haven’t been the the US since February (before it was approved) so no extra days that the consulate would see than what NVC saw. Or do they not make those decisions?
 

Thanks, I’ll check this link out. 
If I did meet the requirement for US tax requirements, will this affect my K-1 Visa? 

The person who said that it’s 90 days in a rolling calendar year is wrong. It’s 90 days per stay and no limit on the number of stays per year with the caveat that each admission is at the discretion of CBP.

 

Yes, your petition would still get approved even if you have an overstay on your file. USCIS does not adjudicate your eligibility to be approved for a visa, they assess your eligibility to apply for a visa, big difference. It’s the embassy that will decide whether you are approved for a visa. An approved petition doesn’t mean you are “good to go”. It just means that the connection between you and the petitioner has been found to meet the qualifying criteria for you to apply for a visa. 

[geowrian 22,335]

6 hours ago, TYosemite said:

Also my petition was approved by NVC & sent to Montreal in March, I would think my petition wouldn’t be approved if there was something like an overstay? I haven’t been the the US since February (before it was approved) so no extra days that the consulate would see than what NVC saw. Or do they not make those decisions?

NVC does not approve petitions. For an immigrant visa, they just compile and organize documentation for the consulate, then schedule interviews with them. For a K-1, all they do is assign a case number and pass it along.

Both the petition would be approved with an overstay (or most other beneficiary issues) and it would get through NVC with the same. The petition is about meeting certain requirements to be able to petition a fiance/fiancee (meeting within 2 years, criminal history disclosure, IMBRA requirements, intent to marry, etc.). Somebody who was permanent barred with no waiver available could successfully be petitioned without issue.

The consulate would determine inadmissabilities, such as a ban due to unlawful presence of 180+ days.

 

But as noted, you should be perfectly fine overstay-wise given the information provided.

 

6 hours ago, TYosemite said:

If I did meet the requirement for US tax requirements, will this affect my K-1 Visa? 

if you did meet the requirements to file and owed taxes, I would presume this would be factored into the public charge risk. It would not be a sole reason for refusal.

You probably don't actually owe taxes for a few reasons. But it's worth checking to be sure.

[Ryan H 3,790]

Moved from Progress Reports to Process & Procedures.