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Hello Friends,
I have a family of 4 (2 adults; 2 kids) and we are Canadian Citizens. We recently entered the United States on an existing I-94 via the land crossing at Peigan, MT. The officers at CBP scanned our passports let us through with a few questions. After entering, a day or two after, I logged online to check our I-94 status and noted that our existing I-94 for myself, and my two kids had a "valid date until" for 20 days and my I-94 had a valid date until"for 30 days. [Meaning the I-94 expired in this amount of time). I also noticed that the I-94 for my wife showed "not found".
Key Facts of our case:
My children's I-94 expired as of June 10, 2016 and mine expired as of June 23, 2016 (some dates to keep in mind). We entered the U.S as a family on May 21, 2016.
Also, we had an existing I-94 given to us when we flew to the U.S. This is the same I-94 we used to re-enter the U.S via the land border on May 21, 2016.
Immediately noticing this situation and having entered the U.S, I went to nearest CBP Office at a deferred inspection site in Bozeman, MT. I convinced the officer on the phone that I needed his assistance for the reasons stated above. He met with us for an hour and spoke to his supervisor over the phone and informed us that Canadians who enter the U.S via land, ARE NOT ISSUED I-94's. He indicated to me that you have six months from the date of your most recent entry, regardless of what the I-94 states.
Having spoken to a CBP officer we continued with our journey. After a few months we got an opportunity to invest in a business and we decided to change status to an E2 (we have not filed an adjustment of status as of yet). Our lawyer informed us that if a Canadian is issued an I-94 than that trumps what the CBP officer told me that as Canadians you get 6 months from date of recent entry. Now, I agree that I have made an error and assumed that what the CBP officer told me that I have six months and did not follow the date indicated in the I-94. AS a result, now we are deemed to be under what they call "unlawful presence" as the I-94 has expired and we have not filed to keep our status up-to-date. We have also not exceeded the 180 days of unlawful presence so the 3/10 year ban at present does not apply to us.
The only positive part of this story is that my wife's I-94 is showing "not found" meaning that we can assume that she has six months as duration of status....as is given to Canadians with no I-94.
My question to this forum is as follows:
1. What happens now if we apply for a change of status from B2 to E2 (investor visa) requesting the offier to overlook the fact that I overstayed? Will this be approved? Give my specific case and based on the law and legal procedure outlined below: Would this situation, I have described fit under the extra-ordinary circumstances?
LAW:
The regulation in 8 C.F.R. 248.1(b) states that under limited circumstances, the USCIS may exercise nunc pro tunc discretion to approve the change of status application of an alien who failed to maintain his or her previously accorded nonimmigrant status or who files for a change of status after the expiration of his or her previously accorded nonimmigrant status. In order to approve such a change of status application, 8 C.F.R. 248.1(b) requires the applicant or petitioner to demonstrate the following:
The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or the petitioner, and USCIS finds the delay commensurate with the circumstances;
The alien has not otherwise violated his or her nonimmigrant status;
The alien remains a bona fide nonimmigrant; and
The alien is not the subject of removal proceedings under 8 C.F.R. 240.
2. If you were in my position what would you do? File the change of status from B2 to E2 and see what comes in the RFE? Or return back to Canada?
3.. If an RFE is released and I and my children are listed dependents on my wife's E2 application, wherein she is the primary applicant? What justification and on what basis would change of status be approved for me and my kids (as we have an expired I-94) and what will I have to show. based on the law and my case, is this possible or not?
4. My other concern is that my family F4 petition is still active and the priority date may open in 2 and half years time. So, if I am currently under unlawful presence for 3-4 months but under the 180 days.....is there any impact when i decide to file for I-485 adjustment to permanent resident application in few years time? I have not exceeded the 180 days unlawful presence?
I am not a lawyer, i have spent days on the web finding answers and I am struggling to find answers that have merit. I am also having some difficulty trusting the advice of my lawyer and I need some good guidance. I am happy to go back to Canada if that would be better but given what has transpired I feel that may be I have a chance if I apply for change of status.
I wanna thank you for reading this, please share your suggestion with me. Your help is greatly appreciated. God Bless.
PS: I also wanted to add for the benefit of those that are not aware: I called the CBP officer SUpervisor and when I explained to him that i am on an existing I-94 that has now expired, he indicated to me that Canadians entering via LAND border are automatically given 6 months, their status is inferred meaning it is not written down and that the I-94 does not matter.
However, the USCIS position on this matter based on what my lawyer has told me is that when an I-94 is issued to a Canadian, the I-94 trumps what anyone says or does. This is a legal gray area in the words of my lawyer. We are stuck in it. I have called the Canadian Embassy in Dallas to get some assistance, but I was told it is a personal situation, you are on your own, in short.
What should I do? Please provide some suggestions and based on my first post. I wanted to add this in case there is another fellow Canadian stuck in a similar situation.
I have a family of 4 (2 adults; 2 kids) and we are Canadian Citizens. We recently entered the United States on an existing I-94 via the land crossing at Peigan, MT. The officers at CBP scanned our passports let us through with a few questions. After entering, a day or two after, I logged online to check our I-94 status and noted that our existing I-94 for myself, and my two kids had a "valid date until" for 20 days and my I-94 had a valid date until"for 30 days. [Meaning the I-94 expired in this amount of time). I also noticed that the I-94 for my wife showed "not found".
Key Facts of our case:
My children's I-94 expired as of June 10, 2016 and mine expired as of June 23, 2016 (some dates to keep in mind). We entered the U.S as a family on May 21, 2016.
Also, we had an existing I-94 given to us when we flew to the U.S. This is the same I-94 we used to re-enter the U.S via the land border on May 21, 2016.
Immediately noticing this situation and having entered the U.S, I went to nearest CBP Office at a deferred inspection site in Bozeman, MT. I convinced the officer on the phone that I needed his assistance for the reasons stated above. He met with us for an hour and spoke to his supervisor over the phone and informed us that Canadians who enter the U.S via land, ARE NOT ISSUED I-94's. He indicated to me that you have six months from the date of your most recent entry, regardless of what the I-94 states.
Having spoken to a CBP officer we continued with our journey. After a few months we got an opportunity to invest in a business and we decided to change status to an E2 (we have not filed an adjustment of status as of yet). Our lawyer informed us that if a Canadian is issued an I-94 than that trumps what the CBP officer told me that as Canadians you get 6 months from date of recent entry. Now, I agree that I have made an error and assumed that what the CBP officer told me that I have six months and did not follow the date indicated in the I-94. AS a result, now we are deemed to be under what they call "unlawful presence" as the I-94 has expired and we have not filed to keep our status up-to-date. We have also not exceeded the 180 days of unlawful presence so the 3/10 year ban at present does not apply to us.
The only positive part of this story is that my wife's I-94 is showing "not found" meaning that we can assume that she has six months as duration of status....as is given to Canadians with no I-94.
My question to this forum is as follows:
1. What happens now if we apply for a change of status from B2 to E2 (investor visa) requesting the offier to overlook the fact that I overstayed? Will this be approved? Give my specific case and based on the law and legal procedure outlined below: Would this situation, I have described fit under the extra-ordinary circumstances?
LAW:
The regulation in 8 C.F.R. 248.1(b) states that under limited circumstances, the USCIS may exercise nunc pro tunc discretion to approve the change of status application of an alien who failed to maintain his or her previously accorded nonimmigrant status or who files for a change of status after the expiration of his or her previously accorded nonimmigrant status. In order to approve such a change of status application, 8 C.F.R. 248.1(b) requires the applicant or petitioner to demonstrate the following:
The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or the petitioner, and USCIS finds the delay commensurate with the circumstances;
The alien has not otherwise violated his or her nonimmigrant status;
The alien remains a bona fide nonimmigrant; and
The alien is not the subject of removal proceedings under 8 C.F.R. 240.
2. If you were in my position what would you do? File the change of status from B2 to E2 and see what comes in the RFE? Or return back to Canada?
3.. If an RFE is released and I and my children are listed dependents on my wife's E2 application, wherein she is the primary applicant? What justification and on what basis would change of status be approved for me and my kids (as we have an expired I-94) and what will I have to show. based on the law and my case, is this possible or not?
4. My other concern is that my family F4 petition is still active and the priority date may open in 2 and half years time. So, if I am currently under unlawful presence for 3-4 months but under the 180 days.....is there any impact when i decide to file for I-485 adjustment to permanent resident application in few years time? I have not exceeded the 180 days unlawful presence?
I am not a lawyer, i have spent days on the web finding answers and I am struggling to find answers that have merit. I am also having some difficulty trusting the advice of my lawyer and I need some good guidance. I am happy to go back to Canada if that would be better but given what has transpired I feel that may be I have a chance if I apply for change of status.
I wanna thank you for reading this, please share your suggestion with me. Your help is greatly appreciated. God Bless.
PS: I also wanted to add for the benefit of those that are not aware: I called the CBP officer SUpervisor and when I explained to him that i am on an existing I-94 that has now expired, he indicated to me that Canadians entering via LAND border are automatically given 6 months, their status is inferred meaning it is not written down and that the I-94 does not matter.
However, the USCIS position on this matter based on what my lawyer has told me is that when an I-94 is issued to a Canadian, the I-94 trumps what anyone says or does. This is a legal gray area in the words of my lawyer. We are stuck in it. I have called the Canadian Embassy in Dallas to get some assistance, but I was told it is a personal situation, you are on your own, in short.
What should I do? Please provide some suggestions and based on my first post. I wanted to add this in case there is another fellow Canadian stuck in a similar situation.
