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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28208
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I have a question regarding border crossing via air travel

Customer Question

Hi, I have a question regarding border crossing via air travel from Canada (Canadian citizen) to USA.
This year (2015), I have spent nearly 6 months total in the USA for leisure travel. My last flight I departed back to Canada October 7th, 2015. However, my passport was stamped with a B2 visa valid until October 22nd, 2015. So, I left USA 15 days before my max stay.
I know Canadians can stay a maximum of 6 months in the USA per calendar year. I plan on travelling back to the USA until May 2016. Originally, I was going to wait until January 2016 for my time to reset, but I was wondering if I could go as early as December 15th, 2015 as I never maxed out my 6 months yet in the USA from my last visit.
Whether it makes a difference to border crossing security, I am married to a guy in the US Navy and that is the reason for my travel. I am currently in the process of obtaining a k1 spousal visa, which was initially mailed in late July 2015. I don't want to overstay my visit and ruin my chances of being a proved a visa.
Is it possible that I could get a round trip from Canada to the USA and be able to pass through border security as early as December 15th, 2015 and be able to stay until May 2016? Or, should I wait until January 2016?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

It is not just the amount of time. The CBP does look at that and if it appears that you have had 6 months in the US then they presume you are living in the US and only visiting Canada. That in the US is considered in determining your immigrant intent.

So you have a combination of factors establishing you have an immigrant intent:

1. You are married to a US citizen;

2. A K1 petition has been filed for you;

3. You if you return to the US in December you will have spent the majority of your past 12 months in the US and only then visited Canada.

You can defend a presumption of immigrant intent for the visit you applying for entry for with evidence of your compelling ties to Canada:

1. Having a job in Canada;

2. Owning your residence in Canada or holding a long term lease there;

3. Having left an auto in Canada which is registered and insured there;

4. Financial ties;

5. Any other possible claim to compelling ties that will assure you will depart the US and are not an intending immigrant using visitor status for the purpose of living here.

I think you are pushing the envelope trying to come back in December, making your time in the US in 2015close to the full 6 months despite leaving before maxing out the 6 months last visit.

I don't know your compelling ties, but I can say they are cracking down at the borders and pre-clearance.

You don't want to get turned away as then chances for entering again before your K1 are going to be slim because you will be flagged when you try to re-enter.

and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
Okay, I understand all of that and realize I would be putting myself at a risk of crossing border security and obtaining my k1 visa. But, in the case I still attempted to depart December, would it be considered over staying if I used my remaining 15 days and my reset by January 2016? Assuming my round trip would be, for example, December 18th, 2015 to May 1st, 2016.
Customer: replied 1 year ago.
This is assuming I get through border security.
Expert:  Judith replied 1 year ago.

I don't think your risk of K1 visa refusal is great because you can always withdraw your application for admission and not be administratively removed. Plus since it is pre-clearance you are not in the US so I don't see them attempting a "removal", simply a refusal to enter because you are an immigrant without an immigrant visa. This does not bar you like removal does.

The inspector's don't look at your time being reset in January if you are attempting to enter in January. That is not how they look at it. In otherwords, they don't give you the benefit of starting a new year after the fact. They look at the application for admission as of the moment and whether that entry will put you over 6 months in the past 12 months.

PLUS they look at all the other factors. It is a totality of circumstances. In other words, they can refuse entry to someone who was here for 3 months, left for a month and came back asking for another 3 months if they think that person is really living here and only going back to their country for a visit.

If that applicant for admission does not have a job, residence, and other compelling ties to home country they can turn away.

Judith

Customer: replied 1 year ago.
What about a Visa Waiver for a 90 day sray in the USA? Would I be eligible for one despite the total days I would be spending on the US? Also, could I use a visa waiver in conjunction with my remaining 15 days?
Expert:  Judith replied 1 year ago.

The VWP does not apply to Canada because Canada is a no visa country.

No you cannot use that law.

Judith

Expert:  Judith replied 1 year ago.

I invested significant time answering your questions. We all like to believe our time has value.

I am eager to make this a positive experience for you.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

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