$1000 penalty not required if you are Canadian?

[misza]

Hi guys,

My friend just came from the law office where he got great news:
1. Canadian citizens do not need a 245(i) cover if they are illegal because they are Canadians (my friend has been here since 1998; he is a citizen of Poland and Canada)
2. Canadians are not required to pay $1000 penalty (I-485a) because they are Canadians.

Is this correct?

Thanks a lot for your help.

 

[TheRealCanadian]

1. Canadian citizens do not need a 245(i) cover if they are illegal because they are Canadians (my friend has been here since 1998; he is a citizen of Poland and Canada)

There is no exemption for Canadian citizens from the $1000 penalty fee in 245i; however in certain circumstances a Canadian overstaying in the US might not accumulate illegal presence making 245i relief unnecessary. However, if he does require 245i relief in order to adjust, he must pay the $1000.

First, in what status did he enter the United States?

Second, why do you believe that he qualifies under 245i? Does he a have a priority date prior to May 2001?

Third, on what basis is he adjusting status?

 

[misza]

There is no exemption for Canadian citizens from the $1000 penalty fee in 245i; however in certain circumstances a Canadian overstaying in the US might not accumulate illegal presence making 245i relief unnecessary. However, if he does require 245i relief in order to adjust, he must pay the $1000.

First, in what status did he enter the United States?

HE CAME TO THE USA JUST CROSSING THE BORDER (HE HAS A STAMP IN THE CANADIAN PASSPORT). I THINK HE CAME AS A VISITOR. I AM POSITIVE HE HAD NO WORKER'S VISA, NO L VISA, NO NAFTA ETC.

Second, why do you believe that he qualifies under 245i? Does he a have a priority date prior to May 2001?

YES. HIS BROTHER (US CITIZEN) FILLED OUT I-130 IN APRIL 2001.

Third, on what basis is he adjusting status?

GREAT QUESTION. HE KNEW HE WOULD HAVE TO WAIT A LONG TIME TO GET A PERMIT FOR WORK SO HE OPENED AN EMPLOYMENT BASED CASE (EB-3). THE LAWYER STARED PERM IN SEPT. 2006. THE LAWYER TOLD HIM THAT IT IS POSSIBLE TO SWITCH PRIORITY DATES (SO HIS PD WOULD BE APRIL 2001 AND HE WOULD BE ABLE TO CONC. FILL OUT I-140 AND I-485 TOGETHER). IT WAS NOT CORRECT BECAUSE AS WE FOUND OUT IT IS NOT POSSIBLE TO SWITCH PD IF THE APPLICANT HAS TWO DIFFERENT CASES. NOW THE LAWYER TELLS HIM THAT HE DOES NOT HAVE TO PAY $1000 PENALTY (BECAUSE HE HAS A CANADIAN CITIZENSHIP) AND HE DOES NEED A 245(I) COVER BECAUSE HE IS A CANADIAN CITIZEN.... IT IS CRAZY BECAUSE MY FRIEND PAID THIS SCAM LAWYER $3000 FOR PERM AND ADDITIONAL $2500 FOR FILLING I-140 AND I-485 AND DID NOT FILL OUT ANYTHING SO FAR. WE TOLD HIM THAT IT IS IMPOSSIBLE TO SWITCH PRIORITY DATES - THE LAWYER SAYS WE ARE WRONG AND DOES NOT WANT TO GIVE THIS $2500 BACK (NO CONTRACT SIGNED OTHER THAN $3000 FOR PERM). THE LAWYER SAYS MY FRIEND DOES NOT HAVE TO PAY $1000 PENALTY ETC.

THANK YOU FOR YOU HELP. DO YOU HAVE ANY SUGGESTIONS HOW TO GET $2500 BACK ("WE NEVER GIVE ANY MONEY BACK") I APPRECIATE YOUR HELP.

 

[TheRealCanadian]

HE CAME TO THE USA JUST CROSSING THE BORDER (HE HAS A STAMP IN THE CANADIAN PASSPORT). I THINK HE CAME AS A VISITOR. I AM POSITIVE HE HAD NO WORKER'S VISA, NO L VISA, NO NAFTA ETC.

Then I think he's lucky and might not be accumulating illegal presence.

Seriously, his so-called attorney is a dangerous idiot, and he should be focusing less on getting his money back and more on finding competent representation. I'd suggest someone like Jim Eiss who focuses on Canada->US immigration and is an honest and competent attorney. usvisahelp.com

(The attorney was right on one thing - he cannot use the earlier FB petition in order to claim a 2001 priority date for an EB petition. 245i relief will still attach, however, if he needs it.)

 

[misza]

(The attorney was right on one thing - he cannot use the earlier FB petition in order to claim a 2001 priority date for an EB petition. 245i relief will still attach, however, if he needs it.)

This idiot attorney told him that he can use FB priority date as his EB priority date .... We found out by ourselves that it is not correct.

Do you think he needs 245(i) or not? What about his wife who is illegal (came legal, overstayed her visa, just Polish citizenship)?

(I called the attorney you recommended, I just left the message).

Thank you for your help.

BTW - my friend met at least 10 attorneys, everyone says he needs 245(i) because there is no law that lets Canadians stay in the USA forever, work over here and pay taxes. If he had travelled to Canada every 6 months etc., the case would be easier.

 

[TheRealCanadian]

BTW - my friend met at least 10 attorneys, everyone says he needs 245(i) because there is no law that lets Canadians stay in the USA forever, work over here and pay taxes. If he had travelled to Canada every 6 months etc., the case would be easier.

Most attorneys can't wrap their heads around the simple notion that Canadians are exempt from passport visas in most immigrant categories; to ask them to comprehend that most Canadian visitors are exempt from the I-94 requirement and all of the attended nuances that provides would probably cause their brains to explode.

Essentially, it all comes down to whether your friend was issued an I-94 at the border when he initially entered or not. If he was, then he's certainly been accruing illegal presence since it expired and he certainly will need 245i. If he wasn't, then no illegal presence can be accrued and the re-entry bars don't apply. He won't be able to file an I-485, but there's no impediment to doing Consular Processing in Montreal and returning with an immigrant visa. If he wants to adjust status, then he will need 245i.

(Based on what you describe about the wife, she is almost certainly subject to the 10-year bar and therefore 245i relief is required.)

That's the huge loophole for Canadians; if no I-94 is issued, illegal presence can never ensue. If no illegal presence, no re-entry bars and therefore Consular Processing is possible and 245i is not required.

Now the other thing to consider is that CP has its own costs and drawbacks. If he's eligible for 245i relief, it might be simpler to just file the AOS and pay the extra thousand dollars than to travel to Montreal and back. Of course, the same situation that exempted him from the 10-year bar will not become a problem, because with no I-94 it becomes that much harder to prove legal admission to the United States.