Canadian overstay in the us. Any suggestions appreciated

[jsuelin]

Question for Canadians or U.S citizens that may have been through something similar.

I'm from New York. I fell in love with a women from Canada. She visited July 2014. Went back after 2 weeks.
She then came back a month later and stayed 5 months then went back December 23rd 2014 and returned January 3rd 2015.

The plan was to get married and request adjustment of status. Then her grandmother got really sick in August 2017 and she returned to say her goodbyes.

We checked her travel records online. It only shows her arrivals in the US. Doesn't show any departures. She claims in august they never scanned her passport.

How would she have a 3-10 year ban if the Canadian border never scanned her passport? How would the United States know she left or not?

If she is banned. Is there any way to petition her back if I marry her in Canada?

Any suggestions would be appreciated. flyingtogether.ual.com

I have heard stories of Canadians not receiving automatic bans for over stays. Some say it's up to the border agents to allow entry or force a ban?

[R78]

Biometric passports only work when opened / in close proximity to the CBP agent
Global Entry / Nexus / Sentri cards can be scanned within 25 feet of the CBP booth when removed from the sleeve.
Passports are not scanned when exiting the US
Entry scans into Canada (for Canadian Citizens) is currently not shared with US authorities.
So it is safe to assume that they do not have that information.
Note: If she is ever asked by a border agent if she overstayed, she should not lie.

[Tibwa]

I am confused. Are you saying each time she left the US, the Canadian immigration border agent does not stamp her passport? when you cross a border, an agent always stamps your passport regardless if you are a citizen or not. At least that is how it always worked for me. I travel to Canada US and I am a citizen of a 3rd country. The always stamp my passport at the port of entry.

[R78]

Are you saying each time she left the US, the Canadian immigration border agent does not stamp her passport?
>>> That is correct. Citizens of the US and Canada almost always "never" receive a stamp on their passport when entering by land. This is done to save passport pages. Can you imagine all those US citizens who travel to canada for work on a weekly basis ? If they received an entry / exit stamp each time, they would be spending $110 for a passport every six months

when you cross a border, an agent always stamps your passport regardless if you are a citizen or not.
>>> Not when traveling by sea. Recently, even some airports have installed computer systems that track entry / exit and therefore passport stamps are no longer required.

At least that is how it always worked for me. I travel to Canada US and I am a citizen of a 3rd country. The always stamp my passport at the port of entry.
>>> Yes, because you are a citizen of a third country and they want to make sure you do not overstay your visit (that's how they track you)
Citizens of the US and Canada, when crossing borders are asked to show their passports, only asked a few questions (if the agent wants to) and let in

[R78]

Are you saying each time she left the US, the Canadian immigration border agent does not stamp her passport?
>>> That is correct. Citizens of the US and Canada almost always "never" receive a stamp on their passport when entering by land. This is done to save passport pages. Can you imagine all those US citizens who travel to canada for work on a weekly basis ? If they received an entry / exit stamp each time, they would be spending $110 for a passport every six months

when you cross a border, an agent always stamps your passport regardless if you are a citizen or not.
>>> Not when traveling by sea. Recently, even some airports have installed computer systems that track entry / exit and therefore passport stamps are no longer required.
I MEANT LAND OR SEA

At least that is how it always worked for me. I travel to Canada US and I am a citizen of a 3rd country. The always stamp my passport at the port of entry.
>>> Yes, because you are a citizen of a third country and they want to make sure you do not overstay your visit (that's how they track you)
Citizens of the US and Canada, when crossing borders are asked to show their passports, only asked a few questions (if the agent wants to) and let in

[newacct]

Whether she has a ban or not is a matter of law, based on the facts. It is not dependent on whether they "know" or not. Even if the CBP officer lets her in, that does not mean she does not have a ban -- they could have let her in in error. If she manages to get let in, and applies for Adjustment of Status, she would have to honestly answer the questions on the form, including whether she has ever violated the terms of her status, and whether she has left the US after accruing 180 days of unlawful presence. (Obviously she cannot lie.) Even if the officer lets her in, that does not somehow absolve her of the ban if she has one, and if she has a ban based on the facts, USCIS will find her ineligible for AOS until the ban is over or it is waived. If she does Consular Processing in Canada, she will have to similarly answer questions on the immigrant visa application about her previous stays in the US, and they will find her ineligible for the visa until the ban is over or it is waived.

The ban does not apply differently for Canadians. There is one potential technicality regarding "unlawful presence" that may apply for Canadians, where if they were not issued an I-94, it is equivalent to being issued an I-94 with "D/S", which means that they do not automatically start accruing unlawful presence on any date. However, these days, I-94s from entry are electronic, so just because she didn't get a piece of I-94 paper doesn't mean she didn't get an I-94. I believe that, in most cases, even land entries of Canadians generate an electronic I-94 these days.

[Tibwa]

Everything you said makes sense. But how do the US government tracks overstaying Canadians? By the way, ain't nobody tracking me. I have been legally "overstaying" in the Country for over 19 years :-). I received notice of my I-485 receipt today. in between I have all types of status :F-1, OPT, H1Bs and TPSs.

[Tibwa]

Whether she has a ban or not is a matter of law, based on the facts. It is not dependent on whether they "know" or not. Even if the CBP officer lets her in, that does not mean she does not have a ban -- they could have let her in in error. If she manages to get let in, and applies for Adjustment of Status, she would have to honestly answer the questions on the form, including whether she has ever violated the terms of her status, and whether she has left the US after accruing 180 days of unlawful presence. (Obviously she cannot lie.) Even if the officer lets her in, that does not somehow absolve her of the ban if she has one, and if she has a ban based on the facts, USCIS will find her ineligible for AOS until the ban is over or it is waived. If she does Consular Processing in Canada, she will have to similarly answer questions on the immigrant visa application about her previous stays in the US, and they will find her ineligible for the visa until the ban is over or it is waived.

The ban does not apply differently for Canadians. There is one potential technicality regarding "unlawful presence" that may apply for Canadians, where if they were not issued an I-94, it is equivalent to being issued an I-94 with "D/S", which means that they do not automatically start accruing unlawful presence on any date. However, these days, I-94s from entry are electronic, so just because she didn't get a piece of I-94 paper doesn't mean she didn't get an I-94. I believe that, in most cases, even land entries of Canadians generate an electronic I-94 these days.

Cannot she verify her online I-94s? My last I-94 dated May 2005. It was the paper one. I have never left ever since :-) but I am legal though.

[R78]

Everything you said makes sense. But how do the US government tracks overstaying Canadians?
>>> A country that spends Over $70 Billion in intelligence can track people of interest if there is a need to. Credit card purchases, facial recognition cameras at the border, gas stations etc, RFID chips in documents.
It could all start with a traffic or CBP stop, questions get asked, intelligence can be shared between countries on a case by case basis etc.


By the way, ain't nobody tracking me.
>>> How do you know that ?

I have been legally "overstaying" in the Country for over 19 years :-). I received notice of my I-485 receipt today. in between I have all types of status :F-1, OPT, H1Bs and TPSs.
>>> Yes, as long as you are legal / not overstaying / respect the terms of the visa waiver, you won't have any issues. This applies to all non resident & resident foreign nationals.

[Tibwa]

By the way, ain't nobody tracking me.
>>> How do you know that ?

With a simple search, everybody knows everyone. ********, Google, twitter and IG have everything on me and even better data than the government. And yes, USCIS knows everything that needs to know about me. I know I am not being track because I am a pretty layman, work hard, pay my bills, take care my kids and stay out of trouble ( oh well I have a couple of trafic ticket. I am from a shi**t hole country, we are pretty decent and taking care our simple daily business.

I understand that it is up to the applicant to prove that he/she maintained a lawful presence in the country. My point if immigration does not issue proper tracking documents, it may be she/he says types of case. AND YES people lie to immigration all the times and they get away with it because the current system is pretty flaw.

Since I have been working legally in the country since 2003 after getting my masters, both immigration and I have the papers. Immigration is the one that issues these papers. This is how I know they have my track record.

[R78]

Awesome !