QUESTION: I lived in the US from August 1999 until May 2006. I initially came to US on F1 visa to do my Masters degree. By the end of 2002, due to poor grades, I was academically dismissed from the university so I became out of status. Within two weeks of academic dismissal, I was able to find an employer who filed for my H1B visa. Although my H1B visa was approved at the beginning of 2003 (valid for 3 years), it did not come with I-94 attached. I was instructed to go to my home country for visa stamping. Due to workload and other personal reasons, I could never manage to go to my home country for visa stamping. When my employer laid me off in May 2006, I simply went back to my home country within a week after my termination of employment. When I was leaving the US in May 2006, the airline official at the airport took my I-94 from my F1 visa that was attached to my passport. No questions asked. I later became a Canadian citizen in May 2011.
A few questions:
(1) Am I able to cross the border into the US now with my Canadian Passport?
(2) If I cannot cross the border, what is the process that I need to follow to obtain eligibility to cross the border?
REPLY: I cannot offer you case-specific advice without learning more about your case, but have provided some information that you might find useful.
Anyone who is admitted to the U.S. as a student for the duration of status (“D/S”) does not begin to accumulate any unlawful presence in the U.S. until either USCIS or an Immigration Judge formally revokes his/her status. In many cases, this does not happen and the individual does not accumulate “unlawful presence” under the Immigration and Nationality Act (“INA”) even though he/she remains in the U.S. after leaving school. If, however, USCIS or a judge has terminated the student status, the individual will begin to accumulate unlawful presence beginning on the date of termination. A period of unlawful presence that lasts between 6 months and 1 year creates a 3-year bar to re-entry. A period of unlawful presence that lasts for more than 1 year creates a 10-year bar. Thus, it will be critical in your case to determine when/if your F1 status was terminated/revoked by USCIS or an Immigration Judge.
Canadian citizens are visa exempt, which means that they can apply for admission to the U.S. at the port of entry without a visa (with some exceptions). The documentary requirements at the port of entry will depend upon the status that a Canadian citizens seeks. Canadian visitors to the U.S. need to be able to demonstrate strong ties to Canada as well as a legitimate reason for visiting the U.S.
In cases like yours that involve a complicated immigration history, I recommend consulting with an experienced immigration lawyer before approaching the port of entry. If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.