The American Immigration Lawyers Association recently issued a Practice Pointer to attorneys that is especially relevant to visitors from Canada. The advisory relates to Canadians and the legal consequences of unintentionally overstaying their visits here. The intent of this week’s blog is not to go into the intricacies of the law, but some of the main points covered are worth reiterating because Canadians are sometimes treated differently than other foreign nationals.
Contrary to popular belief, even though they are practically our neighbors, citizens of Canada are not allowed to remain in the United States indefinitely. Just like other visitors from other foreign countries, Canadians are expected to depart after a specified period of time. Moreover, Canadians are also expected to demonstrate, if necessary, proof of non-immigrant intent-that is, that they are not entering the US to reside permanently. Canadian citizens do not necessarily need to apply for a visa to enter the US, as Canada is considered a “visa exempt” country by the US. When they are admitted, they are presumed to be admitted for six months. What sometimes causes confusion is that I-94s have been digitized. While most foreign nationals from other countries are usually aware that they may look up their electronic I-94 online after entry, Canadians, for whatever reason (especially if they are entering by land) are not aware that an electronic I-94 may have been registered.
As the practice pointer points out, this can have the unintended effect of some Canadians overstaying their authorized period of stay, especially if CBP “revalidates” their existing I-94s after a brief trip and reentry. For example, a Canadian may be admitted for six months but not realize this date is registered in the I-94 database; he then leaves before the six months and seeks readmission before the original six months have expired. In some cases, CBP will “revalidate” the first I-94 and admit the individual up to the original expiration date. However, because the individual may not even be aware that there was a pre-existing I-94, he may unwittingly assume that he is being admitted for another “fresh” six months, when, in actuality, that is not the case. This can result in the individual running into subsequently border problems the next time he seeks to enter. In some cases, depending on the situation, a CBP may argue that the individual accrued “unlawful presence,” which under certain circumstances, presents a bar to admission.
As a result, it is always prudent for any foreign national, regardless of country, to check the CBP.GOV website for evidence of an electronic I-94. As mentioned earlier in some previous entries, an I-94 is considered demonstrative and conclusive proof of an individual’s lawful entry, which is normally considered a fundamental eligibility requirement for adjustment of status. in other cases, as in here, the I-94 serves to advise the individual how long he/she is authorized to remain in the US and by what date, he or she is expected to depart. For more information on the I-94, what to do if you don’t have one, and how to get a replacement or duplicate, please contact our office. Remember that the foregoing is not legal advice nor intended to substitute for such. It does not create an attorney client relationship nor should it be relied upon in place of legal advice.