Canadian Citizen Wife banned for three years. I am on H-1B

Hello all, I have tried to find answers about this in the forums, but have been unsuccessful in getting a complete answer. I am on a H-1B visa in the US, and got married to a Canadian Citizen who was visiting her family in the US then. When we left the country to visit Canada, and came back to US, she was grilled at the border for 3 hours and denied entry to the US. In fact, she was banned for three years. They said that she overstayed her visit in the US, but was less than 10 months and hence the 3 year and not 10 year ban.

Here are some details about her stay. She arrived in the US in July 2007 and we got married in October 2007. We went to Canada in February 2008 which makes her stay about 7 months, but she was staying with me after we were married. I am an H-1B visa holder, and we got married before her 6 months were up. She is eligible for a waiver in 3 years, but I am wondering if there is any way to fight this case using an immigration lawyer. I would like to gather as much information as I can before contacting a lawyer.

I have also heard about a I-601, and hardship, but is this applicable in my case? Please help!

I wish I could say I was surprised but sadly I'm not. There is an exemption for "co-habiting partners" from the six-month limit, but it doesn't sound as though you lived together prior to getting married, and even then she should have changed status to H-4 after you were.

So basically she forgot to file a bit of paperwork and thus that means she overstayed one month and she got a ban.

I'd say she'd have a reasonable chance of getting a waiver from the ban given the circumstances, but yes, you'd need a lawyer, which won't be cheap.

There is case law that a Canadian citizen cannot be banned from entry merely for overstaying in B-2 status, which clearly that POE doesn't appear to be familiar with. Essentially the court in that case (I think it involved an entry at Derby Line, VT) ruled that USCIS could not use the normal calculation they use for determining bans when it comes to Canadians in B status.

A lawyer will be familiar with that case, however it obviously requires a legal process which will cost $$$.

And as the CBP officers at th border can pretty much make up the rules as they go along, dragging it thru the courts or the consulate for a waiver would probably take about 3 years anyhow.

I think you might be able to get it administratively reversed because of that court case involving the guy from Québec. If the USCIS lawyer agrees it was a mistake they might simply reverse it.

But you'd need a lawyer to talk to their lawyer.

So basically she forgot to file a bit of paperwork and thus that means she overstayed one month and she got a ban.

A Canadian without an I-94 is not supposed to be subject to the bar, not to mention the fact that the bar does not kick in until after you have been illegal for >6 months. A one month overstay should not result in an automatic bar--although it may result in denial of entry on a case-by-case basis if it makes the CBP officer nervous.

I would think a good immigration attorney could straighten this out.

If the Port of entry said she was barred for 3 years they must be wrong. It must be a documented Overstay. If your info is true then she was not an overstay of 180-365 days. an admission into the country by a Canadian is assumed to be as a visitor for 6 months. Do you have proof her last entry was in july 2007, a stamp in PP? something, proof if when she left, stamp in pp? Work payment stubs from canada prior to and after her 7 months stay in the US. Did she ever violate her visitor status? What port banned her? Did they take a sworn statement concerning her overstay? I am unclear what law they used or what your wife actually did. Contact a Port of Entry and ask if you can present further proof at the border to try to clear things up.

good luck.

A canadian can be held to the bar if the US can document that they knowingly overstayed and admitted such under oath. For example if a canadian entered in jan 2005 stayed until feb 2008 they cannot honestly say they were unaware they could not live in the US for3+ years.

Yeah, basically if she was honest and said she was there for seven months then theoretically they can ban her, but caselaw is that they can't, so a lawyer should be able to sort it out.