17 minutes ago, SusieQQQ said:

Yeah not sure why the administration goes on about illegal immigrants and a wall when people like this happily abuse the system knowing there are no real consequences for doing so.

Actually, the Administration wanted to stop it. People can abuse the system because the lawyers help them. Who sued the Administration? Look at the list of the law firms involved in this case. Who covers their bills? 

18 hours ago, Ontarkie said:

Thank you for the update, this is exactly the kind of update we need on here. 

Maybe someone will need it in the future  

18 hours ago, geowrian said:

A couple notes on the above:

1) INS has not existed in almost 2 decades.

2) The rule surrounding F/J individuals admitted as D/S has changed. They now accrue unlawful presence once their SEVIS record is terminated.

1) correct, but this is the rule that has not been changed or amended yet and the consular officials should follow it

2) incorrect,  but if I am wrong, please provide the source. 

Judge Loretta Briggs blocked the changes the Trump Administrations wanted to put in effect as of August 2018. So far nothing has been changed and the F,J,M visa holders do not accrue unlawful presence once their Sevis is terminated. 

On May 3, 2019, Judge Loretta C. Briggs of the United States District Court for the Middle District of North Carolina entered a nationwide preliminary injunction against the implementation of the new unlawful presence rules discussed in USCIS PM-602-1060 and USCIS PM-602-1060.1. Guilford College v. McAleenan, 1:18CV891 (M.D. N.C. 2019). The plaintiffs made several claims against the validity of the policy, including that it violated the Administrative Procedures Act (APA), violated the INA, was arbitrary and capricious, and violated Due Process protections. The case will continue to be litigated while the preliminary injunction remains in place.

On 7/20/2018 at 3:15 PM, acidrain said:

 

I studied various Canadian threads for how much time one could spend in the US during the process. Generally Canadians who accrued more than 6 months had issues. There was a Canadian who got an extension (past 6 months) but wound up having all sorts of problems at the interview. I can't for the life of me find the thread. When reading the consulate reviews people who spent a lot of time in the US are asked whether it was more than 6 months. There has to be a reason they ask the question.

If one got a stamp with the "B2" mark and/or given/issued I-94, then s/he is admitted for 6 months. 

Otherwise, the rule is as follows: 

DOS CABLE – CANADIANS AND UNLAWFUL PRESENCE 

On 7/20/2018 at 3:15 PM, acidrain said:

Just curious Ontarkie with d/s cases has accrued presence been overlooked in the past by Montreal?

 

 

Yes. Many times. 

On 7/20/2018 at 2:36 PM, Ontarkie said:

Canadian's with d/s are not seen often on these forums and when we do the results are not what is expected. Please come back with an update after her interview. 

Hello, 

I haven't been here for a year, so just a few words about what has happened so far - maybe it will be useful for someone: 

During the interview my sister was told that she had overstayed her visa and she would be barred from going to the USA for 10 years. My sister gave the consular official printouts with everything I had posted here (rules, decisions etc.). The consular official was more shocked than surprised and said she had never heard about anything like that. She called another person and they started looking at the papers. The second consular was older and she confirmed that my sister was right and the ban does not apply to her. The younger officer was mad and claimed that my sister  ** for sure knew she was going to stay and work**  and she should inadmissible (misrepresentation); the older one said that there is no proof someone **for sure** was going to do something and for those admitted for 'd/s' there is no ban for unauthorized work. She added that now the border officers CAN issue a 6months visa and sometimes they exercise their ability to do it but years ago Canadians were admitted without a stamp. 

So the younger consular officials may not know about the loophole but seems like the old ones know exactly what is going on. 

After 3 weeks my sister got her passport back, and came to the USA with no problems. 

gets*

Let's see what happens at the embassy. I will let you know as soon as she get a decision.

9 hours ago, Dee elle said:

ITIN isn’t a ssn. 

SSA issues SSN.. the bank gave put the application form. 

 

I know ITIN isn't a ssn - I am just showing the scenerio. In my situation it was exactly the same: they gave the application in the bank, I signed it, they copied my passport, attached a letter that I have a bank account and the associate submitted it to the social security office. After a few days I received a ss card. No need to go to the ss office. 

18 minutes ago, Dee elle said:

Did you say in a previous post that she “had a social issued by the bank “ ?  Since when have banks been authorised to issue SSN? 

In 1994 when you opened a bank account, you were eligible to apply for a social security in the bank (they gave you a form, helped with any questions and they had to mark that you are an account holder so you need a social security number in order to pay taxes on interests). Well, that how it was. 

 In 1992 I got my ssn (also applied in the bank, then the card was mailed to my address), when I got married and changed my name, I went to the social security office and the associate says to me: Is it the card issued through the bank?  I said yes, she said: ok, just wanted to know if the number is yours. 

Even now you can see on the IRS website that f.ex. a casino applies for TIN for a winner. 

Mary, a citizen and resident of Ireland, visits the United States and wins $5,000 playing a slot machine in a casino. Under the treaty with Ireland, the winnings are not subject to U.S. tax. Mary claims the treaty benefits by providing a Form W-8BEN to the casino upon winning at the slot machine. However, she does not have an ITIN. The casino is an acceptance agent that can request an ITIN on an expedited basis.

1 minute ago, Dee elle said:

Mmm it’s not us on this website she has to convince... 

what is she planning to put in the DS 260 for her address history since she was 15 ? 

All addresses where she lived, including the US address. 

44 minutes ago, geowrian said:

That policy only applies to F/J/M visa holders. The lack of accrual of unlawful presence for the purposes of an unlawful presence bar for a Canadian not issued an I-94 is still in effect. That said, they tend to issue an I-94 to Canadians much more often now.

 

Interesting case...could go either way. Let us know how it goes.

Actually, the new policy states: 

39 minutes ago, acidrain said:

If she had an immigrant petition at the same time she was crossing the border as a tourist it may be an issue. A tourist B-2 visa is for travel purposes not to immigrate or work. It is against the law to cross the US border with the "intent to immigrate". Will the consulate care? I guess your sister will find out at the interview.

But she did not "intent to immigrate". "Intent to immigrate" means she would like to adjust her status while in the USA and was admitted with a nonimmigrant visa that has no dual intent but she wants to go back to Canada and go via consular processing. 

Let's say someone is being sponsored by his mother. The petition has been pending for years - does it mean he cannot stay in the USA for 5 years as a student?  Same situation if he came as a tourist, changed his status to F and stayed here for  a few years. If it's time to apply for an immigrant visa he can go to his country and do it (if he is eligible). 

If my sister came to the US, and within a few weeks applied for an adjustment of status - then yes, that is fraud. But if someone has been over here for over 12 years, and did not apply for a green card in the USA - she clearly had no intention to "immigrate" to the USA. 

39 minutes ago, acidrain said:

 

The I-94 should be in the system but there are some cases the crossing does not show up. This can be due to the border agent not properly logging it or some other internal error. If there is a record it will say whether there was a time limitation or D/S (duration of status). If there was a time limit (e.g. B2 visa with 10 year limit) then your sister has overstayed.

When she came to the US, Canadian citizens did not receive B2 unless they had a different passport with visa. 

39 minutes ago, acidrain said:

 

Did your sister only receive the B-2 visa or did she receive any other one that allowed her to work or go to school?

22 minutes ago, Boiler said:

A D3 is just for non immigrant visas and applies just for that visa application.

I think I have just found an answer: yes, you are right, but because my sister was admitted to the USA and she did not occur unlawful presence (Canadian citizen without I-94), her 10 years ban was running when she was in the USA. 

2 minutes ago, Boiler said:

The waiver was for a non immigrant visa, D3

Yes. 

Now, how is the ban from 2000 related to her immigrant visa? She was not supposed to come to the States for 10 years, she received a waiver - she came here several times with the waiver/B2visa so does it mean the waiver forgave her illegal stay for any kind of visa incl. immigrant visa? 

Or the first ban has expired - but she was in the US? 

1 minute ago, missileman said:

What was the stated purpose for the entry in which she worked in the US?

They did not even ask her any questions as she came to the US  a few times since she obtained a Canadian passport. 

When she applied for a visa (and waiver) she had a Russian passport, she stated she was coming to see her newborn godchild (and that was correct, she just stayed for a few days - mostly 5-7 days), then she came for baptism etc. When she was travelling with Canadian passport she had only questions about alcohol and cigarettes - if she bought any and if so, how much. 

1 minute ago, Boiler said:

Soundsike the ban for the first overstay has expired

Thanks a lot. That is the main issue if the first ban was waived (by the waiver) or has expired... 

1 hour ago, missileman said:

I was just thinking exactly the same thing.........come to the US as a tourist, overstay, work illegally for years..........misrepresentation of purpose of "visiting"?  smh....

Only Canadian citizens could have come as tourists, F visa holders to students (or former students or their spouses/children), J - work and travel, au pairs, trainees etc. 

1 hour ago, SusieQQQ said:

Well if you’re right, it’s just breathtaking that someone can live and work illegally for 13 years in the US and face no negative consequences after gaming the system the way you suggest. Makes you understand some of the anti immigrant sentiment that hurts the rest of us too. 

Let me tell you that A LOT OF f or J visa holders stay over here for years, work, pay taxes and come back with immigrant visas. And I am sure I am right because the USCIS just announced changes for this group of visa holders as of August 8.  They also confirmed that if a Canadian citizen was not issued I-94, his illegal stay will start counting as of August 8 or 9. 

13 minutes ago, SusieQQQ said:

So it is totally undisputed that she violated the terms of her status then.

If you look at my posts above, there are quotes from lawyers' websites - they all claim that adjustment of status is different from consular processing and they all confirm the following: 

The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing.  by Heather Pool, Esq

1 hour ago, SusieQQQ said:

So she’s going back to Canada to do CP?

by the way has she paid taxes on her illegal work?

 

 

That's exactly what I said: she wants to come back to Canada as her case is already completed by NVC. And because she was not found inadmissible by the judge or immigration officer, she has no 3 /10 ban. 

Yes, she paid taxes.

18 minutes ago, acidrain said:

There are so many components it's difficult to predict an outcome. Has your sister declared everything on her immigration petition? I could see all sorts of questions for what she has done.

 

When was your petition filed? Before or after she decided to "stay". If you filed a petition before she crossed the border with the intent to stay isn't that outright fraud (misrepresentation)? Or did you file a petition after she arrived?

It was filed in 2001. But how is that outright fraud if she came here a few years later, and she has never tired to adjust her status in the US. From the beginning the petition was marked as consular processing via Canada. 

18 minutes ago, acidrain said:

 

Your sister overcame one illegal entry. I guess it depends on whether this last entry is considered legal or an overstay.

 

I'm confused when you say she's getting an immigrant visa from the consulate. Did you apply inside or outside the US? If inside she needs a legal entry she can prove and they will look at the i-94. Either it will have a specific date or D/S but until you know that information nobody knows her current status. If there is a specific date she's overstayed and if there is no record of an i94 then there is no legal entry.

Canadians, as you can read from the above posts and from the USCIS website, mostly did not receive I-94 at the border until I think 2013. Now they are in the system, but years ago, they did not receive I-94. 

I found about it on VJ: 

I realize this is an old topic, but I have been searching for info related to Canadians not receiving I-94's and came across the following, from The United States Embassy Consular Services Canada website:

USA Arrival-Departure Record (Form I-94)

Not Applicable to Canadian Citizens

Canadians who travel to the United States as tourists or on business generally do not need a Form I-94.

41 minutes ago, NigeriaorBust said:

   But she has worked illegally ?  Collected benefits illegally  ..   Maybe claimed citizenship to get benefits  ?

She did not collect any benefits, never claimed a US citizenship. She worked, paid taxes (had social issued by the bank when she came to the States for the first time). 

9 minutes ago, NigeriaorBust said:

  Your sister doesn't have a qualifying relative for a waiver , you aren't , so who is she relying on ? 

But does she need a waiver? 

My mother and father are both US citizens. 

My sister's situation is very similar to the one I copied from USCIS/AAO website. And as you can see it was not necessary to even apply for a waiver. 

She did not claim a US citizenship. She did not use her previous passport with a B2 visa - she was admitted like any F/J person... 

I also found this one: 

What are the Advantages to Consular Processing? 

Unauthorized employment bars adjustment of status.  Section 245(c) of the Immigration and Nationality Act says that adjustment of status in the United States is not available to an alien who ?accepts unauthorized employment prior to filing an application for adjustment of status … or who has failed … to maintain continuously a lawful status since entry into the United States …?  This makes you statutorily ineligible for the process of ?adjustment?; it means that you are ineligible to obtain your green card in the United States.  

But this is not a problem when you obtain your immigrant visa through a consular office outside the United States.  The Consul applies a different set of laws and there is no problem with unauthorized employment when you obtain your visa through consular processing.  Furthermore, the Immigration and Naturalization Service (INS) has the discretion whether or not to grant adjustment of status.  On the other hand, the American consul must issue the visa unless he or she finds that you are disqualified.  This means that if you do not have AIDS or tuberculosis, if you are not a user or abuser of narcotics, or a prostitute or a communist, if you are not a smuggler or a terrorist, and if you have all the right papers then you will obtain the visa.  The consuls see their jobs as issuing visas.  The INS officers see their jobs as enforcing the immigration laws.  Granting of benefits is a low priority to immigration officers.