IMMIGRATION LAW MONTHLY

September/October 2006

Written by Henry J. Chang

My fiancé is a European who overstayed his tourist visa; he has been living in the United States for many years. I'm a Canadian citizen and we wish to move overseas by passing through Canada. He is lacking an I-94 Departure Record. We wish to go to Canada by car to be married. Would his overstay in the United States and the lack of an I-94 lead to problems? Are there forms to prepare prior to visiting?

You have not specified his nationality, other than to state that he is European. You also have not indicated whether you were asking about U.S. or Canadian immigration but I believe you are asking about whether his lack of U.S. status will prevent him from entering Canada.

The first question that must be asked is whether your fiancé is visa-exempt to enter Canada. Citizens of Western European countries are generally considered visa-exempt when visiting to Canada (citizens of Eastern European countries are generally NOT visa exempt.) You can find a list of countries whose citizens MUST have a temporary resident visa on the Citizenship and Immigration Canada website.

If he does require a temporary resident visa, your fiancé will have to apply for a temporary resident visa at a Canadian consulate. Unfortunately, if he applies at a Canadian consulate in the United States, they will ask him to provide documentation of his legal status in the United States. Once they find out that he has no status, they will likely deny his temporary resident visa application. Even if he returned to his home country and applied there, the Canadian consulate would require him to disclose where he had been in the past few years; his illegal status in the United States would then come to the attention of the consular officer. However, assuming that he is visa-exempt, he would be able to apply for admission at a Canadian port-of-entry.

If your fiancé applies at a port-of-entry (a land border or Canadian airport), the Canadian Border Services Agency ("CBSA") will not automatically know that he has been illegal in the United States. If he can convince the CBSA officer that he will be in Canada for a temporary period of time and if they don't ask about his previous status in the United States, he may be allowed to enter Canada temporarily.

I was born in Canada and currently live there. I am also a Status Indian (25% native blood.) I just recently received confirmation that I have been accepted as a member of the Cheyenne River Sioux tribe, Eagle Butte, South Dakota. They have accepted me as being 1/8 Sioux heritage. I also have blood relations in the United States. My question is, do I have dual citizenship?

If you read my article on American Indians Born in Canada, you will see that being a Status Indian in Canada is not enough to establish your eligibility as an American Indian Born in Canada. You would need at least 50% American Indian blood but you claim to have only 1/8th. Based on this information, you would not be eligible. Even if you were an American Indian Born in Canada, you would still not be considered a United States citizen; your status would be more like that of a lawful permanent resident of the United States.

I came to the United States in 1999. I am currently on a H1-B, which is valid until December 2007. In mid-2005, I met this girl and we fell in love. We dated for over a year and got married about a month ago. I filed for my green card through marriage and the process is ongoing. However, recently I learned from third party sources some very disturbing information about my wife. I asked her about it and she said the information was true. Had I known this earlier, I would not have married her. I now want an annulment. However, my green card application has already been filed. How will this affect me when I reapply for my green card through employment? My employer is ready to file a green card case on my behalf.

Since you are still in valid H-1B status, it should not matter if you abandon your family-based permanent residence case. The only way it would be a problem is if United States Citizenship and Immigration Services ("USCIS") alleged that the family-based case was filed fraudulently. But if this was a bona fide marriage, you should be able to explain it. Otherwise, your employer is free to file an employment-based petition on your behalf since you are still in lawful status (H-1B.)

Upon abandoning a former adjustment of status application (by leaving the country unparoled), if you just wanted to re-visit the United States for a 90-day period to see old friends or for a holiday, how does the visa waiver program work once you arrive at the port of entry? Do you have to declare the former application abandoned before travelling or is it acceptable to do this on arrival and still be granted your 90-day visa?

The adjustment of status application will automatically be deemed abandoned once USCIS or United States Customs & Border Protection ("USCBP") learn that you have departed from the United States without advance parole. However, at this point they may not even be aware that you have departed from the United States.

If you show up and seek admission under the Visa Waiver Program ("VWPP"), they may deny your admission on the basis that you have immigrant intent. Even if you are no longer eligible to seek adjustment of status, the fact that you filed for adjustment of status will suggest a prior intention to immigrate, which is enough for them to deny you entry.

I recommend notifying the USCIS office where the adjustment of status application was pending that you have abandoned your application and no longer wish to immigrate (hopefully, well in advance of your application for admission.) I also suggest that you bring proof that you have done this when you apply for admission. You may also want to provide evidence of when you departed from the United States (hopefully some time ago) and evidence of ties to your home country. Do not show this evidence unless the issue of your immigrant intent comes up during the inspection. If it does, you can use this evidence to establish that you no longer have an intention to immigrate to the United States. If they believe you, they should be willing to let you in under the VWPP.