Live in US lawfully without a visa? How 6 months caculated?

Canadians who enter in B-2 status can't accrue unlawful presence unless a determination has been made by an immigration judge. (Anyone interested in the cite: INA 212(a)(9)(B)(i)(I).)

The 183 days you are referring is actually 180 days. A person who is unlawfully present in the U.S. for more than 180 days consecutively will trigger a 3 year bar on re-entry into the U.S., when they depart the U.S. If its a year or more, then the penalty is 10 years. But again, Canadians don't trigger either bar as B-1/B-2 visitors, unless an immigration judge makes such a determination. I've never encountered this.

So do you mean in reality even when a Canadian seeks reentry but is found to overstay as a B1-B2 vistor in the past, he still can reenter since 3,5,10 year or life time bar usually does not apply to a Canadian on ground of overstay, AT LEAST YOU HAVE NEVER HEARED OF SUCH CASE?

THANK YOU!

Yes they can still enter, assuming they are otherwise admissible. Of course if the inspecting officer discovers the overstay, they can in their discretion refuse entry.

What's your professional opinion on Canadians who simply have a home in the US but don't work there? This is the real crux of what a lot of people are looking into at the moment.

Going through all the stuff on the CBP website it appears be: no, you cannot reside in the US as a visitor. But on the other hand, lots of Canadian retirees do it all the time.

It seems to be basically a case of them not really caring that much and there not being huge consequences if you get caught but technically it is illegal.

Does that sum it up correctly?

I read Title 8 of the USC some time ago but the devil is in the regulations. And the caselaw of course.

Hi Christopher G. Rizzo, Esq

I have several questions:

(1) "The 183 days you are referring is actually 180 days. A person who is unlawfully present in the U.S. for more than 180 days consecutively will trigger a 3 year bar on re-entry into the U.S., when they depart the U.S. If its a year or more, then the penalty is 10 years. But again, Canadians don't trigger either bar as B-1/B-2 visitors, unless an immigration judge makes such a determination. I've never encountered this."

I searched web, I have not seen above rules you wrote. What I get is:
"expressly excludes minors, asylees, and beneficiaries of family unity protection from accruing unlawful presence. "

So could you give a link for this rule?

(2) If a non-Canadian alien overstays his visa less than half a year, it won't trigger a 3,10 year bar because no more than the threshold 180 days? So what's the penalty for this overstay?

(3) If what you wrote is true, I guess the unlawful presence commences on the date when the immigration judge makes the ruling, not the date the status violation began. So a Canadian always have the opportunity to leave US in time after this judgement to make the accumulated unlawful presence days less than the threshold 180 days. This way the hush bar will never be triggered to a Canadian.
Correct?


(4) Although in reality it is impossible for a Canadian to be issued a 3,10 year bar and future entry is still possible, previous overstay may increase the prosbility of refusal for reentry because GBP may inspect you stricter.
Correct?


(5) Have you heard of such kind of case FOR A CANADIAN in reality: entry refused simply due to previous overstay in US?

Thank you for your help!

My opinion regarding Steven's question is that its not lawful to own a home in the U.S. and enter as a visitor. For the time you're entering, you're not a visitor under the statutory meaning, you're living in the United States. So therefore its an abuse of B2 visitor status to present yourself for visitor status to enter and reside in your own U.S. residence. Many Canadians misrepresent themselves at the border on this issue and say they are "just visiting." The fact that you choose not to engage in employment doesn't cure the abuse.

On the other hand, does this rise to a material misrepresentation, which would invoke the possibility of a lifetime exclusion? I 'm not sure. The reality is that if CBP discovers the truth, that the Canadian in fact owns a home in the U.S., after the representation was made that they were "visiting", they may very well let it slide.

(2) If a non-Canadian alien overstays his visa less than half a year, it won't trigger a 3,10 year bar because no more than the threshold 180 days? So what's the penalty for this overstay?

Well the 3/10 bar is not triggered, but the penalty would be that person's inability to file for a change of status or extension of status because they failed to maintain their present status. They would need to depart the U.S. and consular process the visa extension or change in visa status.

(3) If what you wrote is true, I guess the unlawful presence commences on the date when the immigration judge makes the ruling, not the date the status violation began. So a Canadian always have the opportunity to leave US in time after this judgement to make the accumulated unlawful presence days less than the threshold 180 days. This way the hush bar will never be triggered to a Canadian.
Correct?

Once the IJ orders the Canadian removed, then at that time they would be out of status and the clock would start running on the 180/365 days.

(4) Although in reality it is impossible for a Canadian to be issued a 3,10 year bar and future entry is still possible, previous overstay may increase the prosbility of refusal for reentry because GBP may inspect you stricter.
Correct?

Yes

(5) Have you heard of such kind of case FOR A CANADIAN in reality: entry refused simply due to previous overstay in US?

I have never heard of this happening.

(2) If a non-Canadian alien overstays his visa less than half a year, it won't trigger a 3,10 year bar because no more than the threshold 180 days? So what's the penalty for this overstay?

Well the 3/10 bar is not triggered, but the penalty would be that person's inability to file for a change of status or extension of status because they failed to maintain their present status. They would need to depart the U.S. and consular process the visa extension or change in visa status.
[/b]

------- Does the visa officer take the previous over stay (less than 180 days) into account as a disadvantage factor for issurance of a new visa/extension in his future application?

Copy and past following url in your internet explorer.
"http://64.233.169.104/search?q=cache:MIg6HU4htCIJ:www.shusterman.com/up-canada.html+INA+212(a)(9)(B)(i)+canadian+citizen+judge&hl=en&ct=clnk&cd=5&gl=ca"

Montreal's Reftel asks if the unlawful presence inadmissibilities, imposed by INA (a)(9)( B)1 and 2, apply to Canadians, and Commonwealth Citizens Resident in Canada, who enter the United States following inspection by and INS officer, but have received neither a visa nor an I-94.
The INS General Counsel's office has informed VO that, a Canadian, or Commonwealth Citizen Resident in Canada, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J.
As in duration of status cases, a Canadian, or Commonwealth Citizen Resident in Canada, who is found to have violated status and be removable by an Immigration Judge, or found to have violated status, by an INS officer, in the course of adjudicating a benefit, such as an extension of stay or a change of adjustment of status, is unlawfully present. The unlawful presence commences on the date when the immigration judge, or INS officer, makes the ruling, not the date the status violation began.



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Hi Christopher G. Rizzo,

You wrote "Once the IJ orders the Canadian removed, then at that time they would be out of status and the clock would start running on the 180/365 days. "

Do you mean a removal order by a judge is essentialy the same meaning as a 3,10 year bar?

last year i spend a total of 9 & a half months in the u.s. over two trips in a 12 month period. Did I break some law? Can it be held against me at a later date? First visit was 182 days and second 3 and a half month. I keep getting different answers and CBP won't give me a straight answer, they keep saying it's at the discretion of the individual POE guard. Can you please help answer my question? I've never broken the law before and I don't want to do anything wrong.

It really is up to the discretion of the individual CBP officer. If they feel that you have taken up "defacto residency" in the US, then they can deny your next entry, and possibly bar you for a a few months or years.