New here - few questions :D

[dazzle 0]

Hey Guys,

I searched a bit on the boards and found some answers but I wanted to be clear about everything before I continued and submitted things.

My Fiancee is Canadian, and came to visit me for a few months (July 15th 2006) and during that time, we became engaged.

Being as we are fairly young (22,23) we knew we couldn't afford a big wedding or anything.

Currently, she's still living with me here in the states, having only driven up to edmonton a few times with her for day trips since she arrived back in 2006.

She never recieved any stamps or anything at the border.

I guess my question is, where should we go from here? We didn't really understand the process or how easy it actually is

Would it be easier for her to return to canada and then for us to file for the fiancee visa, then get married here once approved, then move onto the adjustment of status paperwork?

Or

Be easier to get married right away, file the adjustment of status forms and hope they don't ban her?

I don't want to lose her because we made a mistake and didn't understand the process earlier.

Thank you in advance and sorry if this question has been asked a million times!!

[canadian_wife 1,822]

HI! Welcome to VJ. When was the last time your girlfriend entered the US?

[john_and_marlene 162]

She has been doing some serious overstaying for the past couple of years. The overstays will become apparent when you start filling out the G-325a showing where she has been living. Since she is currently in the U.S., I recommend that you get married and file the AOS along with the I-130. It is important that she stays in the U.S. until she is approved and has permanent residence--no visiting Canada until she has the permanent residence. She will not be banned as a result of the AOS application--the overstays will be forgiven with the AOS based on the marriage to a USC. Prior to completion of AOS, she is subject to an entry ban if she leaves--even if she has Advance Parole.

[dazzle 0]

Thanks for replying.

We figured as much that it would be better for her to stay and apply.

We plan to get married and start this process right away!

Thank you very much again for your help

[Singers 0]

Overstays are only forgiven if you don't leave the US from the time you started incurring the overstay. She has left the US multiple times after incurring her overstay.

[DaveHanna 0]

Thanks for replying.

We figured as much that it would be better for her to stay and apply.

We plan to get married and start this process right away!

Thank you very much again for your help

I hope some one corrects me if I'm wrong.

After you get married your should wait 4 maybe 6 months. If you start the process right away, they (USICS) might flag it as fraud.

[john_and_marlene 162]

Overstays are only forgiven if you don't leave the US from the time you started incurring the overstay. She has left the US multiple times after incurring her overstay.

Overstays are forgiven with AOS if you are married to a USC. There is no further restriction about when or how often you overstayed. If you have an official source for your statement, please cite it. My reply was based on Title 8, Code of Federal Regulations.

[john_and_marlene 162]

Thanks for replying.

We figured as much that it would be better for her to stay and apply.

We plan to get married and start this process right away!

Thank you very much again for your help

I hope some one corrects me if I'm wrong.

After you get married your should wait 4 maybe 6 months. If you start the process right away, they (USICS) might flag it as fraud.

I might get additional attention if they married and filed soon after enterring the U.S., but there's no reason to wait following marriage. Regarding the OP, their best course of action is to marry and file immediately.

[Singers 0]

Sure. It would be INI 212(a)(9)(B )

As soon as you DEPART from the United States you are no longer eligible for entry for 3 years (under 1 year overstay) or for 10 years (more than 1 year).

These are known as the 3 and 10 year bans. They are waiverable.

HTH.

Edited January 17, 2009 by Singers

[bluegreen 0]

Thanks for replying.

We figured as much that it would be better for her to stay and apply.

We plan to get married and start this process right away!

Thank you very much again for your help

I hope some one corrects me if I'm wrong.

After you get married your should wait 4 maybe 6 months. If you start the process right away, they (USICS) might flag it as fraud.

Not really:) You should definitely start the process as soon as you are married so that you are not still floating around in illegal overstay. Some people feel that you should wait 60-90 days after entering the country to actually get married, and that earlier than that is a bit of a red flag to USCIS. Apparently they have a kind of rule of thumb about this. But Start the process as soon as you are married, since marriage alone does not make you "in status".

[john_and_marlene 162]

Sure. It would be INI 212(a)(9)(B )

As soon as you DEPART from the United States you are no longer eligible for entry for 3 years (under 1 year overstay) or for 10 years (more than 1 year).

These are known as the 3 and 10 year bans. They are waiverable.

HTH.

Those are entry bans. If she is currently in the U.S., they should apply for AOS. Those bans will only apply if she is not currently in the U.S.

[DI&JR 1]

Overstays are only forgiven if you don't leave the US from the time you started incurring the overstay. She has left the US multiple times after incurring her overstay.

Overstays are forgiven with AOS if you are married to a USC. There is no further restriction about when or how often you overstayed. If you have an official source for your statement, please cite it. My reply was based on Title 8, Code of Federal Regulations.

I'm sorry, but I can't quite figure out what part of 8 CFR you are referring to, can you be more specific?

[Singers 0]

The bans are entry bans. Once you accumulate overstay and leave the country you trigger the ban, regardless of whether you marry a USC. It is perfectly possible to be in the country and still have a ban.

However, it is most likely they will not apply the bans because she is Canadian and didn't have an I-94. Canadians are considered to have a Duration of Status (when they aren't issued an I-94) and therefore do not accumulate overstay. This isn't set it stone however as it isn't law, it is only an advisory opinion. They could very easily still give her the ban.

They could also (but pretty sure they won't) charge her with misrepresentation since she lied about her intent at the border with each entry. (living here vs. visiting)

Here is the link for the information on Canadians:

http://www.shusterman.com/up-canada.html

This is of course always assuming that she accumulated overstay of 180+ days at some point.