Border Entry Blog Series: Part 3 - Entrants from Canada - Beware Unlawful Presence


The recent CBP/AILA liaison (referenced in earlier posts) highlights a disturbing interpretation of Canadian entry rules. Although CBP is not always the ultimate arbiter of this issue, it is a development to watch.

CBP usually does not provide an I-94 with an exit date to Canadians that enter though land borders. These entries are considered valid for six months, which is the maximum entry for a  B visa holder.

Because no end date is provided at entry, the prevailing interpretation has been that no “unlawful presence” accrues for a Canadian provided no exit date unless another government agency specifically tells that person to leave (such as in a decision denying another immigration benefit).

CBP confirmed again that it considers unlawful presence to accrue upon the passage of six months from the date of entry if steps are not taken to extend or change the person’s status.

Unlawful presence of more than 180 days will subject a person to a 3-year bar on immigration. Unlawful presence of 1 year or more will subject a person to a 10-year bar. The bars are triggered upon exit from the U.S. They do not apply to a person who is under 18.

While often CBP is not involved in deciding if a person is unlawfully present because applications are made to USCIS when a person is physically inside the U.S., it is possible that CBP’s interpretation could catch people unaware who have left the U.S. not realizing that they “overstayed” an imaginary exit date.

Canadians should note the date that is six months from their entry date and be sure to file for a change of status, extension of stay or to leave the U.S. before that date to avoid an unhappy surprise in their immigration future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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