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I was supposed to return to Canada on April 2, 2017. I was in a motorcycle accident during my stay in the United States and was unable to return until the 29th of May 2017. Will I be able to return to the USA in 6 months as planned or will I be banned for a period of time?

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    Less than 180 days no ban.
    – user57303
    May 30, 2017 at 10:45
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    @Phantom most Canadian citizens do not automatically accrue illegal presence. Vanessa: are you a Canadian citizen? When did you enter the US?
    – phoog
    May 30, 2017 at 11:05
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    I don't think the answer is nearly as simple as a flat out yes. There's no automatic ban, but an overstay of nearly two months combined with spending significant amounts of time in the US (presumably ~8 months already if she's a Canadian citizen, and another trip planned in 6 months) could easily lead to problems at the border. May 30, 2017 at 19:40
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    @ZachLipton The question they asked is fully answered. Will I be able to return to the USA in 6 months as planned or will I be banned for a period of time? The question is not about whether it will be easy or not. Let's keep it simple. May 30, 2017 at 19:41

2 Answers 2

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Anyone of any nationality on any visa who overstays less than 180 days has no ban. It's that simple. So yes you will be able to enter the USA if you qualify, either via a visa or otherwise.

Overstay of Less Than 180 Days

If your overstay in the United States was for less than six months (180 days), then you are not legally inadmissible in the future. You can be granted another visa, or even a U.S. green card (lawful permanent residence). However, if you are applying for a temporary (nonimmigrant) visa, and it’s one of the many that requires you to convince the U.S. consular official that you will leave the United States when your permitted stay is over, you may have a tough time making this showing if and when the consular officer becomes aware of your past overstay.

So we don't even need to know your nationality or what visa type you brought into the country or whether it was VWP or even if you simply sneaked in over the border without a visa and passport, you overstayed less than 180 days so NO BAN.

Of course it doesn't mean you will be allowed in next time, that's for the border immigration officer to decide.

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    We don't know the details, but, I believe, not being able to return due to being in hospital following a road accident may be considered an exceptional circumstance.
    – Aleks G
    May 30, 2017 at 19:48
  • This answer needs severe correction: "So yes you will be able to enter the USA if you" -- if you deal with the consequences of your overstay before you leave.
    – user4188
    May 30, 2017 at 23:46
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The answer is complicated: while there is no ban you might need to get a visa or a waiver.

Unless you are Canadian, you will need a visa. If you are Canadian and do not have an I-94 record (paper issued if crossed on land, electronic for air and sea) then you are all good. If you are Canadian and were given an I-94 / stamp in passport with a date then you need a waiver.

Breaking it down:

  1. If you were entering on ESTA then an overstay makes you lose your ESTA privileges for life and you must get a visa. https://cz.usembassy.gov/visas/denied-entry/

If you have overstayed on the Visa Waiver program (VWP) or violated the terms of a previously issued U.S. visa, you will be refused entry to the United States unless you apply for a visa with full details of your overstay prior to subsequent entry. Violating the terms of the Visa Waiver Program or previously issued U.S. visa can render an individual ineligible for a visa and a waiver of this ineligibility may be required.

  1. If you were entering on a visa then that visa is cancelled and so you need a new one. https://travel.state.gov/content/visas/en/general/visa-expiration-date.html

If you overstay the end date of your authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), your visa will automatically void or cancel unless;

You have filed an application in a timely manner for an extension of stay or a change of status; That application is pending and not frivolous;

  1. Canadians are a complicated case. Let's turn to 40.9 Section 212(a)(9) of the Act - Aliens Unlawfully Present after Previous Immigration Violations:

Non-controlled Nonimmigrants (e.g. Canadian B-1/B-2)

Nonimmigrants, who are not issued a Form I-94 , Arrival/Departure Record, are treated as nonimmigrants admitted for D/S for purposes of determining unlawful presence.

What does that mean? It means that Canadian visitors who are not issued an I-94 are admitted for Duration of Status (similar to F-1 student visas) and then this section applies:

Under current USCIS policy, nonimmigrants begin to accrue unlawful presence as follows: [...]

Nonimmigrants Admitted for Duration of Status (D/S):

If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.

If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order.

So unless either of these two happened you didn't overstay. Repeat: this only applies if you were not provided with a date until you could stay.

If you are Canadian and were given a date until you could stay then, as I already linked, you will need a waiver.

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    There is no ban but OP will NOT be able to return UNLESS they get a visa or waiver as appropriate if necessary. Updated to clarify this. A ban would mean their request for visa/waiver will be refused. But the lack of a ban doesn't mean they don't need to do paperwork first!
    – user4188
    May 30, 2017 at 23:29
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    No ban does not equal no consequences. Is that simple enough for you to understand finally? Refrain from involving yourself in immigration questions as long as you believe anything of this is simple.
    – user4188
    May 30, 2017 at 23:36
  • Finally, I was able to come up with a hopefully simple enough correction to your answer and an explanation to what you are missing: "So yes you will be able to enter the USA if you" -- if you deal with the consequences of your overstay before you leave. My answer details what this dealing needs to be.
    – user4188
    May 30, 2017 at 23:47
  • Does staying past an "until" date mean that a visa or a waiver will immediately be necessary to return, or does the visa-or-waiver requirement come into play after the accrual of 180 days of unlawful presence?
    – phoog
    May 31, 2017 at 15:19
  • "while there is no ban you might need to get a visa or a waiver" If there is no ban, then you cannot get a "waiver", because you have no ban to "waive". What would you be "waiving"?
    – user102008
    May 31, 2017 at 17:19

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