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Marrying US Citizen - Inadmissible because left country?

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Manhattan212

Junior Member
I have a Canadian friend who is getting married to a US citizen. He's been in the US for almost 5 years without any sort of visa, and during that time he's gone back and forth between Canada and the US about 8-10 times.

Unlawful Aliens may get their status adjusted with a green card when marrying a US citizen, however, I came across INA section 212(a)(9)(B) that states unlawful aliens are inadmissible for 3 or 10 years if they've left the country after being unlawfully present.

Is my friend inadmissible for a green card because of his having left the country several times? Even if marrying a US citizen?

He is in the US now, and each time he came in he was inspected and just stated he was visiting. He's had a job for about 18 months without status.

Please Clarify if you Can, THANKS!
 
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Manhattan212

Junior Member
Answered my own question

After extensive studying of the law, I've determined that Canadians are free and clear as long as they marry a US citizen, regardless of having worked illegally in the US or for having been in the US for any length of time.

This opinion is based on an INS memo dated September 19, 1999 that states:

"Under the modified interpretation, unlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I-94, Arrival/Departure Record. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). "

source: http://www.americanlaw.com/unlawfulmemo2.html

Canadians do not have to fill out I-94 forms and so unlawful presence does not accrue and the 3 or 10 year ban cannot apply.

For a complete interpretation of the 3/10 year bar under INA §212(a)(9)(B) see http://www.cis.org/articles/2003/back1003.html
 
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