Unlawful Presence For Canadian Citizens
Unlawful presence is usually starts to run when a person, who is not a US citizen or US permanent resident overstays their visa or authorized stay. It does not start to run for holders of D/S I-94s, such as F-1 or J-1 students, for whom a USCIS officer or an Immigration Judge has not rendered a decision as to termination of their status and that they have to leave the country.
However, the question remains as to the validity of status for those who came in the US without a visa, such as citizens of Canada who come to the US without being formally “admitted.”
According to the AILA latest release on the topic:
“CBP has issued a policy to the field that a non-controlled Canadian who stays in the U.S. more than 6 months is accruing unlawful presence (ULP). CBP acknowledges it is unlikely it would be able to prove in court that such an alien accrued unlawful presence. Officers in the field have been instructed to charge such aliens with a violation of INA §212(a)(7)(A)(i)(I), as an immigrant without a visa and to only charge ULP under INA §212(a)(9)(B) if the situation is “egregious” or “compelling.”
A non-controlled alien is one admitted without a record of admission. This typically applies to Canadian visitors for business or pleasure.
CBP also notes that there will be no non-controlled aliens at ports where the I-94 process is automated. However, land borders, where many Canadians apply for admission, will not be automated. Canadians arriving by air or sea, however, will have a record of admission and will not be non- controlled aliens. There must be a clear passport stamp with an “admitted to” date and a clear class of admission. Canadians will be able to get a Form I -94 from the CBP online system.”
As such, even citizens of Canada who came here without a visa might be deported, if they overstay their intended period of stay. In addition, the person who accrued sufficient days of unlawful presence in the US may be subjected to the 3/10 years bars of inadmissibility.
If you have questions regarding Unlawful Presence, consult New York Immigration attorney Alena Shautsova at 917-885-2261.