Question, Can Canadian Citizens enter US without AP when 485 pending?

[Jinnah M]

Hi Gurus

My wife is a Canandian Citizen.
MY GC was approved April 2003, and her case 485 is pending.
Long story, dont know why she is not approved, even when we applied together, and did all the FP together and eveything together.


These days AP is taking 6 months to get approved.

So I have a question.

Can she enter US on her Canadian Passport, without AP?
Even if she can only stay for 6 months, and we have to make a day trip to Canada for re-entry every 6 months?

 

[unitednations2]

Hi Gurus

My wife is a Canandian Citizen.
MY GC was approved April 2003, and her case 485 is pending.
Long story, dont know why she is not approved, even when we applied together, and did all the FP together and eveything together.


These days AP is taking 6 months to get approved.

So I have a question.

Can she enter US on her Canadian Passport, without AP?
Even if she can only stay for 6 months, and we have to make a day trip to Canada for re-entry every 6 months?

Technical answer: NO
There is no exception to anyone if they leave the country without an approved AP, unless they have another dual intent visa (such as h-1), ultimately if POE officer finds out they could deny 485.

Practical answer:

Since Canada is a visa waiver country POE would not know she has 485 outstanding. Only way they would know is if there is an expired AP stamp in her passport, originating airport on her plane ticket is in u.s., she is driving with american licence plaes, american i.d., etc.

If she does get caught at the border they may refuse entry or send her for deferred inspectin and cancel 485. If this happens then you are going to have to do a follow to join through consular processing in Montreal. This could take 6 to 12 months.

 

[peeved]

Practical answer:

Since Canada is a visa waiver country POE would not know she has 485 outstanding. Only way they would know is if there is an expired AP stamp in her passport, originating airport on her plane ticket is in u.s., she is driving with american licence plaes, american i.d., etc.

If she does get caught at the border they may refuse entry or send her for deferred inspectin and cancel 485. If this happens then you are going to have to do a follow to join through consular processing in Montreal. This could take 6 to 12 months.

What about her I-94? Isn't she going to have to submit her I-94 when she leaves US? If she does there will be record of her leaving the country (without AP). Even if she somehow mangaes to leave without her I-94, she will be given another I-94 when she re-enters US as a Canadian citizen. Now there will be two records of her entering US with a missing record of departure. That's gonna look fishy. The immigration officers have seen and heard all kinds of stories. They know more excuses than we can imagine in a life time.

I do know for a fact that these days they check all the arrival/departure records before granting an immigration benefit. I would think the risk is too high. Unless the circumstances are so dire that I have no choice but to take the risk, I would not do it.

 

[ETA-GC]

What about her I-94? Isn't she going to have to submit her I-94 when she leaves US? If she does there will be record of her leaving the country (without AP). Even if she somehow mangaes to leave without her I-94, she will be given another I-94 when she re-enters US as a Canadian citizen. Now there will be two records of her entering US with a missing record of departure. That's gonna look fishy. The immigration officers have seen and heard all kinds of stories. They know more excuses than we can imagine in a life time.

I do know for a fact that these days they check all the arrival/departure records before granting an immigration benefit. I would think the risk is too high. Unless the circumstances are so dire that I have no choice but to take the risk, I would not do it.

FWIW, I'm a Canadian citizen and over the last 6+ years I've been back to Canada several times to visit with friends / family and the issue of turning my I-94 in / getting a new one has never come up. I believe that as long as you are going for < 30 days or so they let you keep your old one (actually, I think the correct way to put this is that they *won't* take your old one / give you a new one even if you ask).

That said, unless we were to go out of our way to ask to turn in our I-94 and/or to ask for a new one when re-entering the US I don't see how this issue would ever come up. When leaving the US, we've always presented ourselves at the Canadian border as "Canadians living in the US" and been waived through. When returning to the US from Canada we've always handed over our passports at the US border along with our TN / H documents and been waived through. I guess sometimes we might have been asked how long we were away...

I'm hoping none of this will be an issue for the I-485 stage. Apparently one guy I read about a while back was in this same situation and the NSC (I think) was asking him where all his I-94 records were. He apparently had to explain the USCIS' own rules to them (i.e. Canadians going to Canada for < 30 days don't get new I-94's) before they'd proceed with his case... When applying for the I-485 we did truthfully say when / where we entered the US most recently but of course we have no record of that...

Of course, if one is leaving the US for 6 months, that might be a different issue (I imagine it would be if the border people asked about it...). And, even if you get in / out, I suppose the USCIS could find out about it, although I'd guess this would be unlikely.

ETA

 

[TheRealCanadian]

My wife is a Canandian Citizen. MY GC was approved April 2003, and her case 485 is pending. Long story, dont know why she is not approved, even when we applied together, and did all the FP together and eveything together. Even if she can only stay for 6 months, and we have to make a day trip to Canada for re-entry every 6 months?

On what basis could your wife claim re-entry? If she has a pending I-485 then the only way she can get in is via AP, an H-1 or an L-1. She cannot enter as an undocumented B.

Unless you head through a slow and pokey land POE, CBP will scan her passport or her name into their computers and the adjustment will pop up. If she's truly unlucky, she'll tell the agent some story to get in as a visitor and only then have her name scanned. At which point, POOF - lifetime bar for an attempted fraudulent entry.

She needs to concentrate on finding out what happened to her adjustment.

 

[unitednations2]

I've never handed in my i94 when departing to Canada or coming back into the States.

The only exception is when I went to europe. In Ireland they made me complete a new i94. I told them I had never done that and my understanding was that as a canadian citizen I did not need a new i94. He said this exception only exists when I enter from Canada into the states.