DOS CABLE ON INSPECTED
SHOULD BE TREATED SAME AS
E.O. 12958: N/A
Subject: Advisory Opinion: INA 212(a)(9)(B) and Canadians
Ref: (a) Montreal 1497, (b) Victars E57819, (c) 97 State 23545, (d) State 60539
- Montreal's Reftel asks if the unlawful presence inadmissibilities, imposed by INA
(a)(9)(B)1 and 2, apply to Canadians, and Commonwealth Citizens Resident in Canada, who
enter the United States following inspection by and INS officer, but have received neither
a visa nor an I-94.
- The INS General Counsel's office has informed VO that, a Canadian, or Commonwealth
Citizen Resident in Canada, admitted following inspection, who has not been issued an
I-94, should be treated in the same manner as a duration of status case, similar to an F
- As in duration of status cases, a Canadian, or Commonwealth Citizen Resident in Canada,
who is found to have violated status and be removable by an Immigration Judge, or found to
have violated status, by an INS officer, in the course of adjudicating a benefit, such as
an extension of stay or a change of adjustment of status, is unlawfully present. The
unlawful presence commences on the date when the immigration judge, or INS officer, makes
the ruling, not the date the status violation began.
- A Canadian, or Commonwealth Citizen Resident in Canada, like other aliens, who enters
without inspection, accrues unlawful presence from the time of entry. However, as unlawful
presence may not be counted in the aggregate, there must be an unbroken period of unlawful
presence lasting at least six months after April 1, 1997, and following the applicant's
eighteenth birthday, before a 9B bar could apply.