200 day "unofficial" overstay in 2007 - never brought up during border Xings or TN Visa App....AOS

[heatherandkevin]

I am helping a dear friend file for AOS. She is a Canadian in the US on TN status and has been in the US on TN status for many years. She married a USC last June and they would like to file AOS.

In reviewing her paperwork we realize that in 2006 she overstayed her status by 196 days - she was on Tn Status and then she was fired and she didn't leave the country - she stayed and lived off of her savings. She received a new job offer about 190 days later and 196 days later she traveled to the Canadian/US border and applied for a was granted a new TN visa. She did not lie ever to the immigration officials. She was never, ever asked about a possible/potential overstay.

She has come and gone across the Canadian/US border countless times since this overstay and it has never been brought up. She has applied for a received 5 different TN visas since this unintentional overstay and it was never brought up.

Since she is marrying a USC overstays are usually forgiven.

Does anyone know if USCIS is likely to even be aware of this overstay since it has never been brought up (she is the one who figured out she overstayed - it was never ever brought up by any official)?

Is there any way to see if USCIS/CBP is aware of this overstay? (my guess is no but just checking)

If they were to somehow realize it during AOS processing would the overstay be forgiven because she is marrying a USC or would the 3 year ban apply?

Thank you!

 

[Jackolantern]

Even though she became out of status as a result of not leaving when she lost her job, she didn't become "unlawfully present" if she left before the TN expiration date that was stamped when she entered the US in TN status. Unlawful presence is what counts towards the 3-year or 10-year ban, and in cases like this, out of status doesn't immediately become unlawful presence.

Is there any way to see if USCIS/CBP is aware of this overstay? (my guess is no but just checking)

If they did an immigration audit of the employer (which ICE does randomly to employers in addition to their targeted raids on suspected offending companies), they could find out her termination date and put 2+2 together and realize she was out of status.

 

[heatherandkevin]

That is a great point and one we didnt consider. She did not stay past the TN expiration date - but we thought that unlawful presence would start accumulating from the day she lost her job. It is great to hear that the unlawful presence clock doesn't begin counting until the expir date on the I-94....Thanks for the response Jackolantern!

 

[Jackolantern]

Note that the unlawful presence could start to accumulate before the TN expiration date if USCIS/ICE was notified of her job loss and made a formal determination of her status before the expiration date. But that didn't happen, so she'll be OK.

 

[heatherandkevin]

Thanks for the thorough explanation Jackolantern! I did some research and did find USCIS documentation on the exact policy you are discussing (I would link it but it won't let me since I am a new member and you have to have 15 posts to link to a website) but it details exactly what you stating. For the sake of anyone else who would like to access this documentation (and for anyone concerned about accumulating unlawful presence this document gives great detailed information) - the memo was written by "Neufeld" has a date of May 6, 2009. Hopefully with that information anyone who would like to access the memo will be able to search for it online and locate it.

Thanks again Jackolantern!