Overstay of I-94 & Effect on Future TNs

Question: If a Canadian citizen leaves the U.S. after the expiration of his I-94, will there be any problem at the point of exit? Will there be any problem while re-entering the U.S. with a brand new TN visa application?

Answer: It depends on how much time has elapsed since your I-94 expired. The principle concern with Canadian citizens remaining past the expiration date of their I-94s is the accrual of unlawful presence.

Generally, if you’ve remained in the U.S. for more than 180 days beyond the expiration of your I-94, but less than 1 year, you may be barred from readmission to the United States for a period of 3 years. If you remained in the U.S. for more than 1 year, you may be barred from readmission for ten years. See INA § 212 (a)(9)(B). If you fall under either of these categories, I would recommend consulting with an attorney for further analysis before you depart the U.S.

If you’ve remained in the U.S. for less than 180 days, you’re subject to removal (deportation) from the U.S. Any contact you have with federal, state, or local law enforcement officers may ultimately lead to your removal. But for overstays of less than 180 days, the law does not expressly bar your entry to the U.S. in the future.* However, the brief overstay can still cause problems for you when attempting to re-enter the U.S.

If you have overstayed your I-94 in the past, it may be more difficult to prove that you are a bona fide nonimmigrant and that you do not intend to remain in the U.S. permanently. Immigration inspectors may also allege that you improperly worked in the U.S. Either ground may result in a denial of your admission to the U.S. When you apply for your next TN, you may need to explain the reasons for the over stay and refute any allegations that you illegally worked or intend to reside in the U.S. permanently.

* Individuals admitted to the U.S. based on a non-immigrant visa, such as Mexican citizens, who remain in the U.S. beyond their I-94 will have their visa voided under INA 222(g). This provision does not apply to Canadian citizens under TN status.