Dear SRW Border Lawyers,

Question: I am a Canadian citizen who lives in Toronto, Ontario with my husband (who is also a Canadian citizen). I was born in Russia, but I acquired my Canadian citizenship several years ago. Both my mother and brother live in the U.S. and I try to visit them as much as I can. During my last stay in the U.S., I was admitted as a visitor and I stayed for one year; however, CBP did not stamp a date in my passport in which I had to leave. I returned to Canada briefly and then tried to re-enter the U.S. several weeks later. During that entry, Customs and Border Protection (CBP) saw that I was in the U.S. for a year and denied me admission. CBP told me that I was only authorized to say in the U.S. for six (6) months and found me inadmissible for three (3) years. As a Canadian, I thought I could stay in the U.S. as long as I wanted. Is there anything I can do remove my (3) three-year bar? How can I enter the U.S. to visit my family? I do not have any desire to be a U.S. LPR or U.S. citizen; I just want to enter the U.S. to see my family as much as possible.

Answer: Thank you for your question. We frequently encounter Canadians in situations similar to yours. On one hand, you are not given a date certain to leave the U.S., but when you remain in the U.S. past a certain period of time, CBP determines that you have accrued unlawful presence and as such, are subject to an unlawful presence bar under INA §212(a)(9)(B)(i). 

Generally, when a foreign national enters the U.S. on a nonimmigrant visa, they are given an authorized time period in which they may remain. Once that time period has ended, if they have not otherwise sought to extend/change their status, they must depart the U.S.  If they do not depart the U.S., any periods of unlawful overstay could result in an "unlawful presence" bar which may prevent them from re-entering the U.S. for a given time period.   As a Canadian citizen, while exempt from the requirement to obtain a non-immigrant visa to visit the U.S., you could become subject to this unlawful presence bar in certain circumstances.

Based on the facts that you have provided, CBP has found you inadmissible to the U.S. under INA §212(a)(9)(B)(i)(I), which means that you cannot re-enter the U.S. for a three (3) year period without first obtaining a waiver of such inadmissibility.  For information about how Canadians can apply for a non-immigrant waiver of inadmissibility (Form I-192), please click here.  This three (3) year bar applies to individuals who have been unlawfully present in the U.S. for a period of more than 180 days but less than one year, and have voluntarily departed the U.S. prior to commencement of removal proceedings.

However, from the brief information you have provided, it seems that when you were last admitted to the U.S., you were not given a exact date to depart by.  As a Canadian citizen who was not given a date certain to leave the U.S., you would not begin to accrue unlawful presence until one of the following takes place: (1) United States Citizenship and Immigration Services “USCIS” makes a finding that youl have violated your status; or (2) an Immigration Judge makes a determination that there was a status violation. Since it seems neither happened in your situation, I would question whether you are truly subject to a unlawful presence bar.  

In order to determine the next steps for you moving forward, whether it be a non-immigrant waiver to restore your ability to travel to the U.S. or to request that CBP update their records to reflect that you are not subject to an unlawful presence bar, we would need to speak with you to learn more about your particular case facts and review any documents you may have received from CBP when you were denied entry.  If our legal analysis determines that you should not be subject to an unlawful presence bar, then we can prepare a detailed packet to submit to CBP explaining how you could not have legally accrued a period of unlawful presence that would in effect subject you to a unlawful presence bar.

I encourage you to call our office to set up a consultation, so that we can discuss your case in greater detail. We look forward to assisting you with your immigration needs.