i have us citizen children but they all are under the age of 7. so is there any chance i would qualify for the new reform law?, that will take place on March 4. can I do anything here in canada or would my waiver application be processed faster and be granted?. i also have a mpther that is a pr holder and a us citizen brother. Would this also help in any way for my husband that is also here in Canada without status at the moment.
Your question is a little confusing but let me try to answer it best I can. As a Canadian citizen you do not need a visa but any entry into the US you may not remain longer than 6 months unless you have permission to remain longer. Its always best to ask for an I-94 showing when you entered and how long you may remain (usually 6 months as a visitor from Canada without a visa). Once you violate the status of your non-immigrant visa though, like overstaying your 6 months stay on your I-94 (little white card you get from the USCBP (immigration officer at the border) if you ask for it as a Canadian, or you work without permission, you will trigger an inadmissibility bar upon your departure from the US, either 3 or 10 years depending on how long you overstayed your previous stay. If your initial authorized stay was for 6 months and you remained up to 180 days beyond the 6 months and than depart the US you are barred for 3 years. Any time over 180 days and the bar becomes 10 years. So, as a non-immigrant from Canada, if you attempted to enter the US in November 2011, either the USCBP officer could have made a determination after checking the computer system at primary passport control or even secondary passport control if it went that far that on a previous visit you had violated and overstayed your visa and the officer could have either not allowed you in and/or if he chose to expeditiously remove you, i.e. refuse you entry than the bar would be 5 years. Most likely they made you sign a sworn statement which would also have the section of law e.g INA 212(a)(9)(A) or whatever etc. showing how long the bar is and the contents of your interview. The proper legal vehicle to use most likely in your situation is not the newly announced procedure for an inadmissibility waiver which will go into effect on March 4, 2013 BUT the INA 212(d)(3) waiver called an "inadmissibility" waiver for non-immigrants. The new provisional waiver is for immigrants. So, unless you intend to immigrate to the US and have an immediate relative (like your spouse or US citizen adult son or daughter, i.e. over 21) you can use this waiver for extreme hardship to them, if you are not allowed to immigrate BUT otherwise the other waiver is the appropriate vehicle. Consult with competent immigration counsel to asses whether your particular facts are compelling and strong enough to apply for the non-immigrant waiver.
Interestingly I had a Canadian client that had an inadvertent overstay of 30 years (brought in as a baby but adoptive parents never completed the process) and my research showed that she accrued no unlawful presence because she had no fixed exit date.
Though I don't think that helps here because with US citizen family and a prior overstay it's going to be tough to prove non-immigrant intent.
The waiver process is changed a bit but the immigration process hasn't. Therefore you need a US citizen immediate relative to petition for you in the first place and then - if you're subject to the 10 year bar - you would apply for the waiver. The new waiver process wouldn't apply to you since you're not here.
My answering this question does not form an attorney-client relationship. Always retain a qualified attorney before taking any action. My office offers free consultations.
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