I have a question about unlawful presence and my potential inadmissibility to the United States.

Question:

I have a question about unlawful presence and my potential inadmissibility to the United States. I am a Canadian citizen and I live in Kingston, Ontario. I have family in the United States who I try to visit as much as possible. During my last admission as a visitor to the United States, I remained for 310 days. Prior to that stay, Customs and Border Protection (CBP) did not stamp a date in my passport telling me when I had to leave the United States. After my stay, I returned to Canada briefly and then tried to re-enter the United States several weeks later. During inspection at the border, the CBP officer noticed that I was in the United States for 310 days and denied me admission. The officer told me that I was only authorized to remain in the United States for a certain period of time, and, as such, I was now inadmissible and barred from reentering for a period of three (3) years. As a Canadian, I honestly believed that I could remain in the United States as long as I did not intend to immigrate. How can I reenter the United States to visit my family?

Answer:

Thank you for your question. Your issue is a common one among Canadian citizens. As a Canadian citizen, it is not unusual to be admitted to the United States and not be given a date certain to leave. However, if you remain in the United States beyond a certain period of time (generally six months), you run the risk accruing unlawful presence.  

In general, when a foreign national enters the United States on a nonimmigrant visa, they are given an authorized period of time in which they may stay. Once that time period ends, if the foreign national has not otherwise sought to extend/change his or her status, he or she must depart the United States. If the foreign national fails to depart the United States, any periods of unlawful overstay may result in an "unlawful presence" bar, which may prevent future admission into the the United States for a given time period.

It appears from your question that you may to be inadmissible to the United States under the (3) three-year bar. The (3) three-year applies to individuals who have been unlawfully present in the United States for a period of more than 180 days but less than one year, and voluntarily departed the United States prior to the commencement of removal proceedings. INA § 212(a)(9)(B)(i)(I).

As a Canadian citizen, however, you do 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 the foreign national has violated his or her status; or (2) an immigration judge makes a determination that there was a status violation. Therefore, based on the information you provided in your question, you are likely not inadmissible to the United States due to an accumulation of unlawful presence.

Moving forward, you will not be able to remain in the United States for the length of time you have previously been staying (i.e. close to a year). If you would like to resolve your current border issue, please set up a consultation to discuss your case in depth. The likely course of action is to submit a detailed brief to CPB explaining why you did not accrue unlawful presence and therefore are not subject to the (3) three-year bar. In addition, we can also discuss other options that may allow you to remain in the country for a longer period of time than that afforded under B-2 status, such as a TN visa pursuant to the North American Free Trade Agreement (NAFTA).

I look forward to assisting you with your immigration situation and thank you for your question.