Possibly overstayed in 1998, LPR in 2012, naturalization?

W

workaday

New Member
Background: Canadian may have overstayed in America in 1998, possibly between a week and 5 months (at 18 years old). Departed the US to Canada by land, so records aren't great. Traveled at least 20 times into America over the following 10 years without any real issue (secondary inspection a couple times but always let through). Granted LPR via marriage to a USC in January, 2012 via AOS filed and granted inside the US. Filed N-400 in December, 2016. Filed FOIA on immigration file AFTER filing N-400 (not so swift, my friend).

Questions:
1) In the immigration file, we should first be looking at what was recorded at the border back in the 1990s to see if there really was an overstay? That is, which visa and what dates.
2) We be looking in the immigration file to see whether a waiver status came with adjustment to the I-485 (the I-601 or I-212) IF the overstay was spotted and forgiven?
3) If the border crossing record looks dodgy, and the USCIS officer granted adjustment without the waiver, ie. didn't notice the overstay, what should we do about the N-400?

Thanks!
 
I don't see any bans you could have had at the time of AOS from the information you gave. For the 9B unlawful presence ban, you would have had to accrue 180 days of unlawful presence (in that trip) and the leave the US to trigger a 3-year ban, and accrue 1 year of unlawful presence (in that trip) and the leave the US to trigger a 10-year ban. First, "overstay" does not mean "unlawful presence"; you generally have to stay past the date on your I-94 to start accruing unlawful presence, and Canadians often do not get I-94s, which means they do not automatically start accruing unlawful presence no matter how long they stay. Second, even if you had accrued unlawful presence, there was not enough of it before you left to have triggered even a 3-year ban. So there never could have been any 9B ban from that time. And third, even if there was a ban, 3-year or even 10-year (which there wasn't), your AOS was more than 10 years later so it would have been long over. So on so many levels, it could not have mattered for your AOS.
 
Great response, very much appreciated.

So, what if my memory is sketchy and the overstay could indeed have been over 6 months, triggering a 3 year ban. If I traveled to the country many times over the three years subsequent to the overstay, would the fact of so many entries without major issue tend to indicate that the overstay did not trigger the ban? Or is it the case that each of these is a violation of the ban?

More broadly, would entering the US on any visa at all after the overstay have been unlawful because I was entering under a visa waiver for which the overstay made me ineligible?

Also, I didn't mention any of that history on the application for AOS, I didn't think it was important. I now realize that this was a bad move. How bad a move was it? Should I bring it up this time around and throw myself on the mercy of the interviewer? The balance here is on accuracy against their finding that I was inadmissible (brr, what a nightmare that would be).

We haven't yet received the FOIA entry/exit log and immigration file, so the picture will become much clearer when that arrives but, generally, do we know how well land entries and exits from/to Canada were logged back in the very late 1990s? I recall the border of my childhood seeming oddly unregulated, but it could be that there was more going on there than I then realized.

Thanks again for the advice!
 
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An inadmissibility (ban) simply means they should have denied you entry. But if they let you in anyway, that doesn't cause any further bans. Also, Canada is not in the Visa Waiver Program; overstay does not cause Canadian citizens to need a visa to visit in the future. There is no question on the AOS application (I-485) that asks about past overstay or anything like that, so there was no place for you to mention it.
 
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