Expired TD status for my son

[samincolumbia]

My son's TD status/I-94 expired couple of months ago. We applied to renew his Canadian passport by mail and got it couple of weeks ago. Will there be any issue when we travel to the border to get his TD visa stamped on the new passport? We are Canadian citizens and I am working on TN. My son goes to high school.

thanks
Sam

 

[nelsona]

Shouldn't be. It has been less than six months.

 

[samincolumbia]

Thanks! Just curious, what should one do if it was more than six months?

 

[nelsona]

You would need to get a lawyer, as your son would be considered as having been in US illegally for 183 days or more, which carries the penalty of being barred from US . Probably there would be some mitigation of the penalty --I wouldn't rely on that without seeking counsel.

The correct approach for you would have been to submit an I-539 for your son. It is not dependent on having a valid passport for a particular period of time.

 

[newacct]

One does not accrue "unlawful presence" for the purposes of the 3-year/10-year ban while under 18. So as long as he leaves before age 18.5, he will not trigger a ban. However, not having a ban does not mean they will necessarily let him in next time. Any negative history can increase the chance of being denied nonimmigrant entry for immigrant intent.

 

[nelsona]

Yup. You would see a lawyer about this. But two months "Shouldn't be" a problem

 

[samincolumbia]

Thanks nelsona and newacct for your advice. I did not know that I can file I-539 for my son, even though his passport had expired.
@newacct - Can you please clarify what do you mean by "if he leaves before age 18"? Are you saying that as long as he gets his TD extended before turning 18, he will not trigger a ban. Of course, I am not going to do that, but want to be aware of the consequences/repercussions.

 

[newacct]

@newacct - Can you please clarify what do you mean by "if he leaves before age 18"?

There is a ban in INA 212(a)(9)(B), where if one accrued 180 days of "unlawful presence" and then leaves the US, they trigger a 3-year ban; if one accrued 1 year of "unlawful presence" and then leaves the US, they trigger a 10-year ban. "Unlawful presence" usually starts accruing when one stays past the date on their I-94. However, for the purposes of this ban, "unlawful presence" is defined such that one does not accrue unlawful presence while under 18. So if your son is under 18, he is not accruing "unlawful presence" right now, even though it is past the date on his I-94. If he continues to stay in the US, when he turns 18, he will start accruing unlawful presence. If he stays past age 18 + 180 days and then leaves the US, he will have accrued more than 180 days of unlawful presence, so leaving the US will trigger the ban. If he leaves the US before age 18 + 180 days, he will not have accrued enough unlawful presence before leaving to trigger a ban.

But like I said, not having a ban does not mean they will let him in. Any overstay could increase the chances they will not let him in if he leaves and tries to come back.

Are you saying that as long as he gets his TD extended before turning 18, he will not trigger a ban.

No. Generally, he is not eligible to apply for Extension of Stay if his status is already expired (unless there is really good cause to explain the late filing).

 

[chandu20]

Please get a lawyer for the best possible path or at least discuss with a lawyer that you would have confidence who can guide based on your situation. Passport renewel excuse will not work as your son's TD should have been expiried before the passport.

"For the Canadian Passport renewal: The processing time for mailed applications from the United States is 20 business days." or maximum a month to receive. It looks like that you did not know soon enought that both were expiring one after the other.

 

[narmax]

There is a ban in INA 212(a)(9)(B), where if one accrued 180 days of "unlawful presence" and then leaves the US, they trigger a 3-year ban; if one accrued 1 year of "unlawful presence" and then leaves the US, they trigger a 10-year ban. "Unlawful presence" usually starts accruing when one stays past the date on their I-94. However, for the purposes of this ban, "unlawful presence" is defined such that one does not accrue unlawful presence while under 18. So if your son is under 18, he is not accruing "unlawful presence" right now, even though it is past the date on his I-94. If he continues to stay in the US, when he turns 18, he will start accruing unlawful presence. If he stays past age 18 + 180 days and then leaves the US, he will have accrued more than 180 days of unlawful presence, so leaving the US will trigger the ban. If he leaves the US before age 18 + 180 days, he will not have accrued enough unlawful presence before leaving to trigger a ban.

But like I said, not having a ban does not mean they will let him in. Any overstay could increase the chances they will not let him in if he leaves and tries to come back.


No. Generally, he is not eligible to apply for Extension of Stay if his status is already expired (unless there is really good cause to explain the late filing).

Hello @newacct . I am having the same situation with my 5 yrs son except the fact that TD status is still valid for 10 days. I applied for a new passport for him but we are going to receive it after 20 days. Do you think we should apply for status extension I-539 to cover the 10 days of overstay?

 

[newacct]

Hello @newacct . I am having the same situation with my 5 yrs son except the fact that TD status is still valid for 10 days. I applied for a new passport for him but we are going to receive it after 20 days. Do you think we should apply for status extension I-539 to cover the 10 days of overstay?

Current passport is already expired or will expire soon?

 

[narmax]

It was cancelled (punch holed) yesterday and returned to me (i flew to calgary for 2 days early this week hoping I'd get a new passport for my child on urgent basis, but since the child was in the usa they told me they can only mail the new passport. I have a receipt from Canada Passport stating that a new passport will be mailed on feb 7 and takes another 10 days to reach my mail box. However the I94 is expiring on feb 5th ((

 

[newacct]

It was cancelled (punch holed) yesterday and returned to me (i flew to calgary for 2 days early this week hoping I'd get a new passport for my child on urgent basis, but since the child was in the usa they told me they can only mail the new passport. I have a receipt from Canada Passport stating that a new passport will be mailed on feb 7 and takes another 10 days to reach my mail box. However the I94 is expiring on feb 5th ((

But is it still before the passport's expiration date?

 

[narmax]

But is it still before the passport's expiration date?

Yes. It has the same expiry date as the current "cancelled" passport

 

[newacct]

Yes. It has the same expiry date as the current "cancelled" passport

Well, you should be able to file the I-539 with the current (soon to be expiring) passport number and expiration date. As long as the I-539 is received before the passport expiration date, it's fine. You don't need to attach a copy of the passport, so they won't know it has a hole through it.

Or, since he is a Canadian citizen, he can just leave the US and re-enter on the new passport if you guys want to save on the money for the I-539.

 

[narmax]

Well, you should be able to file the I-539 with the current (soon to be expiring) passport number and expiration date. As long as the I-539 is received before the passport expiration date, it's fine. You don't need to attach a copy of the passport, so they won't know it has a hole through it.

Or, since he is a Canadian citizen, he can just leave the US and re-enter on the new passport if you guys want to save on the money for the I-539.

Thank you for the prompt reply.

 

[nelsona]

Passport Canada will often return the old passport while processing the new. The passport cancellation has no impact on the I-94 that was issued however. but since you will soon receive the new one, and if you live close to the border, I would simply wait for the passport and go get new TD I-94 at that point, even if there is a few days being out of status. Otherwise, file I-539 before the expiry date on the I-94.

 

[narmax]

Passport Canada will often return the old passport while processing the new. The passport cancellation has no impact on the I-94 that was issued however. but since you will soon receive the new one, and if you live close to the border, I would simply wait for the passport and go get new TD I-94 at that point, even if there is a few days being out of status. Otherwise, file I-539 before the expiry date on the I-94.

Thank you.