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I met a girl from Canada. She visited for 2 weeks in July 2014. She went home for a month. She came back and stayed for 5 months. Then again returned to Canada in December 2014 and returned January 3rd, 2015.

She stayed until August 2017. When a family member got deathly sick, she left to say her goodbyes. She's still in Canada. We checked on the US arrival and departure records. It only shows her arrivals to the US and not her departures. She claims the Canada border agents never scanned her passport once.

Since her passport was not scanned, is she banned? If so, would I be able to marry her in Canada and still petition her to the States?

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    While I suppose it's possible Canada hasn't scanned her passport, I cross the Canada-US border about once a month, and my passport (or NEXUS car, which I usually use in lieu) is always scanned briefly, both on entry to the US and entry to Canada. – Jim MacKenzie Feb 19 '18 at 14:59
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    Whether she is banned is a legal question that can only be decided by a judge. Whether the US asserts that she is banned is something only the US can tell you. – phoog Feb 19 '18 at 16:40
  • A judge won't tell her about a ban... a border agent will. – Oxossi Feb 19 '18 at 21:39
  • What would be my best course of action. Would it be get married in Canada and try to do a petition of a foreign spouse? – ObeyMyEgo Feb 19 '18 at 23:07
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    @ObeyMyEgo, If you want to do that, be aware that the consular officer will ask about overstays when she is under oath at the immigrant visa interview. It might be best to hire a lawyer to help figure out how to deal with that complexity. – Dennis Feb 21 '18 at 4:36
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The United States CBP only collects arrival and departure records from the operators of airlines and passenger ships. As there are no exit checks when leaving the USA, this means that if one leaves the USA via another mode of transportation (i.e., by land), one's departure is not recorded in the CBP's computers. So it makes sense that the US has no record of her departures.

However, your girlfriend's arrivals in Canada should have been recorded by the Canada Border Services Agency. (I will echo Jim McKenzie's skepticism that her passport was never once scanned upon entering Canada; whenever I've crossed the land border, I have always had to hand my passport to the agent for scanning.) So if your girlfriend needs proof that she left the US at the appropriate time, this would be a way to get that information.

Instructions on how to request a Travel History Report can be found at the CBSA's webpage. It is also possible to request a Highway Passage Report, which gives the records of when a particular car crossed into Canada; however, for obvious reasons, this can't be viewed as airtight evidence that your girlfriend actually left the country at that time.

A Travel History Report is a record of a traveller's entries into Canada. The report documents entries made on or after August 1, 2000. This information is collected by the Canada Border Services Agency (CBSA) on travellers entering Canada. Traveller exit information is also available in a limited capacity but applies only to foreign nationals entering the United States from Canada on or after June 30, 2013.

Highway Passage Reports may also be requested; however, they indicate only that a specific licence plate has been recorded, and do not show the people travelling in the vehicle.

Instructions on how to apply can be found on the linked webpage. Essentially, she has a right to this information under the Access to Information & Privacy Acts (the Canadian equivalent of FOIA), and the Canadian government maintains a web portal for ATIP requests like this.

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    For the last couple of years or so (I type this in 2018), the US and Canada exchange records of people entering their country from the other, so if a traveler goes from the US to Canada, the US will be aware of it, even if there were no exit controls in place. – Jim MacKenzie Feb 19 '18 at 18:05
  • @JimMacKenzie that program initially concerned only those who are not US or Canadian citizens. Had it been expanded to include them? – phoog Feb 19 '18 at 20:19
  • @phoog My understanding is that it considered everyone, e.g. Canada could use that information to verify the length of a person's stay in the US to verify duty/tax exemption eligibility. – Jim MacKenzie Feb 19 '18 at 22:31
  • @JimMacKenzie see for example cbsa-asfc.gc.ca/btb-pdf/ebsiip-asfipi-eng.html. – phoog Feb 19 '18 at 22:42
  • What would be my best course of action. Marry in Canada and try to petition of a foreign spouse? – ObeyMyEgo Feb 19 '18 at 23:20
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First of all, when there is doubt about when she departed and whether she overstayed, the burden is always upon her to prove that she didn't overstay, so a lack of departure record never helps her.

Second, whether she has a ban (i.e. is inadmissible for a period of time) is a matter of law based on the facts. She entered as a B2 visitor, which are almost always admitted for 6 months at most (and in any case cannot be admitted for more than 1 year), and (assuming she didn't apply for Extension of Status) she stayed more than 1 year past the date on her I-94, and then left the US. Therefore, she has a 10-year INA 212(a)(9)(B) ban starting from when she left. It will be over in 2027.

It is always possible that if she tries to enter as a visitor, that the officer will somehow fail to notice the overstay and fail to question her about her past stays, given the often cursory inspection of Canadians, and she would be let in, without lying, by accident, despite having a ban. However, if you want her to immigrate to the US, either via Adjustment of Status in the US (if she slips through and makes it into the US) or Consular Processing abroad, she will be asked on the application forms specifically about past overstays, and she must tell the truth (lying to immigration is a huge no-no), so they will definitely determine that she is currently under a ban, and being under a ban prevents her from immigrating (even if she is already in the US and doing Adjustment of Status), unless she gets an immigrant waiver for the ban.

  • What about Canadians being treated as D/S and therefore not accruing unlawful presence unless an officer or judge finds they are present unlawfully? – phoog Feb 20 '18 at 7:06
  • @phoog: Canadians admitted without an I-94 are treated as D/S, but since the OP said that the website shows her arrivals, I think that means she was issued an electronic I-94 on arrival. – user102008 Feb 20 '18 at 21:43
  • @user102008, Both I-94 and I-94-less entries show up in the online history. When I got the latter (apparently to close an I-94 from a day trip made a month before that had no exit record) the CBP officer questioned me closely to ensure that I was only staying a couple of hours to run an errand, though, so I suspect it is exceptional now for a Canadian to be admitted with no I-94. – Dennis Feb 21 '18 at 4:24
  • @Dennis how was it an I-94-less entry if it was in the I-94 database? – phoog Feb 21 '18 at 8:03
  • @phoog, It was in the travel history (even LPR entries are in the travel history now) but with a blank "Type" field, and the "most recent I-94" regressed from the one a month before to the date of a prior entry from 3 months before with some of the other fields blank. I suspect some of the latter bits were website bugs (the "Type" is now "Arrival") but for a Canadian the I-94 date is normally that of the most recent entry from Canada so that was an entry unlike the others. – Dennis Feb 21 '18 at 17:00

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