Confused, Married Overstay – I-130?

[Tick Tock 3]

Hello to you all

Firstly, I apologize if this thread is posted in the wrong subforum; please move the thread or redirect me to the correct subforum if this is the case.

I am a Canadian citizen and I came to the US as a visitor 5 years ago. My intention was to visit my at the time boyfriend (a US citizen); I crossed the border by land and received no stamps to my passport or anything. 3 months into the visit, we got married. We had a small ceremony, but my family was not present or aware until after the fact because my relationship with my parents was strained at the time.

I have lived within the US for 5 years. I have not worked, I have not voted, I have no driver's license, I have no criminal record. My husband and I could not even open a joint bank account; we were told that I as a Canadian citizen needed a green card and I am left feeling like that was not completely true. I'm not included on any accounts because I was under the impression that this is not possible- for example, our cable services are only under his name.

We have gotten conflicting (free) legal advice over the years regarding what forms we need to file. We can not afford to pay a lawyer. We have tried to save money but because of financial difficulties, have had to spend any immigration money on food, utilities – surviving.

We are both at wit's end. I have been trying to figure out the quickest course of action we can take and I am coming up empty-handed. I am extremely afraid of being deported and have had this fear the whole time. My parents have offered to lend us the money, so I am hoping that we can file the minimum number of forms at first in order to see whether or not USCIS will allow me to stay. That way, if I am rejected, I have not wasted that much money. For example: filing I-130 alone ($355) versus filing I-130 with I-485 ($1300+).

I have a lot of questions – maybe I am worrying too much, but I would appreciate answers if possible.

Should my husband file an I-130? For I-130, would I put “None”, “Not Applicable” or something else in the field that asks for my I-94?

Is there a different form we should submit instead?

I am in the US – should I stay here?

Is there anything else I should know that could help us out?

I have read that if a form is rejected, the filing fee is NOT refunded. Is this true?

In spending all of this time in limbo, my Canadian Passport has expired just a few weeks ago. I am sure I need to renew it because it is my only form of photo ID. This may be beyond the scope of VisaJourney.com, but I figured I should ask since passports and immigration seem to go hand in hand. Again, I have gotten conflicting advice and figured it would not hurt to ask in the hopes that someone on the forums has been through a similar situation to give some advice.

Should I change my status to “married” right now, or should I keep it as “single” and redo it later?

Should I change my address of residence to where I am living in the US? Or should I keep the address as the one I held in Canada (I was living with my parents)?

Should I return to Canada and apply in person?

Would returning put me in jeopardy – would I be denied entry to the US if I renewed in person?

[Kittyfang 6]

Hello to you all

Firstly, I apologize if this thread is posted in the wrong subforum; please move the thread or redirect me to the correct subforum if this is the case.

I am a Canadian citizen and I came to the US as a visitor 5 years ago. My intention was to visit my at the time boyfriend (a US citizen); I crossed the border by land and received no stamps to my passport or anything. 3 months into the visit, we got married. We had a small ceremony, but my family was not present or aware until after the fact because my relationship with my parents was strained at the time.

I have lived within the US for 5 years. I have not worked, I have not voted, I have no driver's license, I have no criminal record. My husband and I could not even open a joint bank account; we were told that I as a Canadian citizen needed a green card and I am left feeling like that was not completely true. I'm not included on any accounts because I was under the impression that this is not possible- for example, our cable services are only under his name.

We have gotten conflicting (free) legal advice over the years regarding what forms we need to file. We can not afford to pay a lawyer. We have tried to save money but because of financial difficulties, have had to spend any immigration money on food, utilities – surviving.

We are both at wit's end. I have been trying to figure out the quickest course of action we can take and I am coming up empty-handed. I am extremely afraid of being deported and have had this fear the whole time. My parents have offered to lend us the money, so I am hoping that we can file the minimum number of forms at first in order to see whether or not USCIS will allow me to stay. That way, if I am rejected, I have not wasted that much money. For example: filing I-130 alone ($355) versus filing I-130 with I-485 ($1300+).

You will have to file I-130 and I-485. I-130 is for your husband to file and I-485 is for you.

I have a lot of questions – maybe I am worrying too much, but I would appreciate answers if possible.

Should my husband file an I-130? For I-130, would I put “None”, “Not Applicable” or something else in the field that asks for my I-94?

I haven't sent my forms yet, but I am putting down that "as a Canadian, I have not received an I-94"

Is there a different form we should submit instead?

You need to submit the forms required in I-130 and I485. Affidavit of support, biographical info, etc.

I am in the US – should I stay here?

Since you have been here for 5 years, you will be subject to a 10 years ban if you leave.

Is there anything else I should know that could help us out?

I have read that if a form is rejected, the filing fee is NOT refunded. Is this true?

In spending all of this time in limbo, my Canadian Passport has expired just a few weeks ago. I am sure I need to renew it because it is my only form of photo ID. This may be beyond the scope of VisaJourney.com, but I figured I should ask since passports and immigration seem to go hand in hand. Again, I have gotten conflicting advice and figured it would not hurt to ask in the hopes that someone on the forums has been through a similar situation to give some advice.

Should I change my status to “married” right now, or should I keep it as “single” and redo it later?

Should I change my address of residence to where I am living in the US? Or should I keep the address as the one I held in Canada (I was living with my parents)?

Should I return to Canada and apply in person?

Would returning put me in jeopardy – would I be denied entry to the US if I renewed in person?

I would try to get a bit more evidence. For example, if you cannot get your name added to the actual account (for electricity, for example), they can add your name to the bill. Your husband can also add you to his credit card. Further more, if you have married filing jointly tax return, I hear that is one of the best evidence... If you don't, you can have them revised. I hope this helps. Our situations are similar, if you need more info, just send me a pm.

[Tick Tock 3]

Kittyfang, thank you so much for the reply. I can fully agree with "Had a conniption when we realized how much the whole process would cost" in your signature!

First and foremost, I will get this out of the way... 10 years?!?! My goodness.

This is the list of forms I have come up with. Again, I'm trying to keep the filing costs as low as possible. Am I missing anything?

I-130 - $355.

I-485 - $1010 - I was hoping to file this later, but I guess it needs to be done at the same time as I-130.

I-864 - $70. Filing domestically. (Affidavit of Support).

I-864 - $70. My husband will more than likely require a co-sponsor.

G-325A- For me.

G-325A For my husband.

I-693 - To go alongside I-485. I had the medical exam done once but it has since expired. So, I guess I will have to have a new one, which can cost upwards of $450 according to last price quote.

I would love file for I-131 but I have heard it is prone to rejection and you can be hassled/denied re-entry if you do end up leaving the US for some reason.

There are 2 forms that ask for my G-325A - should I submit 2 copies of my G-325A, or just 1 copy?

I will have to check into adding my name to our cable bill. My husband doesn't have a credit card so that is something we can't look into. I think he'll have to speak to a company like H&R Block to get his taxes sorted out.

I'm still confused about my passport and am hoping someone might read this and be able to shed some light to the remaining questions from both my first and this post.

[Tick Tock 3]

I think he'll have to speak to a company like H&R Block to get his taxes sorted out.

I will add to this quote. After reading Tax Transcripts and Amendments, it seems highly possible that the individuals who filed taxes for him in past years have done so incorrectly. I believe that in at least one year, his taxes were filed as "single" so we'll definitely have to have his previous taxes re-examined and amended. This will certainly require more looking into though upon first glance, it seems like he would have to have his taxes amended to "Married filing Separately".

Though it raises more concerns, I suppose it is far better to have a concise checklist to know what we need to take care of than to be unprepared. I wonder what else we are missing...

[Kittyfang 6]

Kittyfang, thank you so much for the reply. I can fully agree with "Had a conniption when we realized how much the whole process would cost" in your signature!

First and foremost, I will get this out of the way... 10 years?!?! My goodness.

Yup, that is why almost everyone will tell you to not leave the U.S. while the AoS process is going on.

This is the list of forms I have come up with. Again, I'm trying to keep the filing costs as low as possible. Am I missing anything?

I-130 - $355.

I-485 - $1010 - I was hoping to file this later, but I guess it needs to be done at the same time as I-130.

I-864 - $70. Filing domestically. (Affidavit of Support).

I-864 - $70. My husband will more than likely require a co-sponsor. I could be wrong, but I think it's only $70, even if you have a co sponsor, but I could be wrong.

G-325A- For me.

G-325A For my husband.

I-693 - To go alongside I-485. I had the medical exam done once but it has since expired. So, I guess I will have to have a new one, which can cost upwards of $450 according to last price quote. Most doctors I've spoken to were willing to do the physical for $100, you can have your own doctor do blood, TB and vaccination and bring the paperwork to the civil surgeon.

you will need 4 G-325a in total, 1 for him and 3 for you.

I would love file for I-131 but I have heard it is prone to rejection and you can be hassled/denied re-entry if you do end up leaving the US for some reason.

I wouldn't do it. From what I've read, because you're an overstay, they advise to not leave the country. Because even with an I-131, it could trigger the 10 year ban.

There are 2 forms that ask for my G-325A - should I submit 2 copies of my G-325A, or just 1 copy?

Submit 1 for each. I think that at some point, the files that you send them get separated. It's better to give them the choice anyway.

I will have to check into adding my name to our cable bill. My husband doesn't have a credit card so that is something we can't look into. I think he'll have to speak to a company like H&R Block to get his taxes sorted out.

We used H&R Block. If you don't have an SSC, make sure you speak to someone who has experience with ITIN. Also, you can definably file married jointly. That is what we did.

I'm still confused about my passport and am hoping someone might read this and be able to shed some light to the remaining questions from both my first and this post.

I will add to this quote. After reading Tax Transcripts and Amendments, it seems highly possible that the individuals who filed taxes for him in past years have done so incorrectly. I believe that in at least one year, his taxes were filed as "single" so we'll definitely have to have his previous taxes re-examined and amended. This will certainly require more looking into though upon first glance, it seems like he would have to have his taxes amended to "Married filing Separately".

Though it raises more concerns, I suppose it is far better to have a concise checklist to know what we need to take care of than to be unprepared. I wonder what else we are missing...

Well, I have been on VJ for a few months now and I have learned a LOT. Don't get discouraged, I'm sure someone else will come along and help you too.

Edited April 27, 2010 by Kittyfang

[sciencenerd 56]

I am in a similar situation - my wife came for a visit close to 4 years ago and ended up staying for a lot of reasons. We were able to get a joint bank account with a social security number - that did seem to differ based on which bank, but Washington Mutual did it. We also were able to switch to a local credit union prior to her getting an SSN - that was trickier, but they worked it out by having it be officially my account for taxes, but she is an authorized user listed on everything (our checks have both of our names). Our interview is next week, so I can't say how this will all turn out, but I am optimistic. Based on everything I have learned, you should be okay. You definitely should apply as soon as possible - we filed the I-130, I-485, and I-765(EAD) with supporting forms. We did not apply for advanced parole because our lawyer said it may not be helpful with the overstay and she advised us not to leave the country for any reason at all until we have the greencard. So, yeah, do not leave the country - there's conflicting information out there, but assume that leaving the country means that you'll get a 10 year ban from entering again - this ban can only be triggered by leaving the country, so you're fine if you stay in. My wife also did not work, have a driver's license, vote, etc. and I think that all works in our favor. I would recommend applying as soon as possible - I can't tell you how relieved we are just to have some status, even if things are still a little uncertain. My wife now has an SSN and a state ID. She can work. It's seriously a relief and will be so worth the money, even if it's tough to pull it together. We opted for a lawyer due to other complexities in our case, but many folks here have managed totally fine without a lawyer. Our situations seem somewhat similar and our lawyer is very confident that we'll get approved, so hopefully she's right. Good luck! (and don't leave the country!)

[milimelo 4,477]

Moving topic to AOS from tourist, work and student visa.

[Minya's wife 24]

Kittyfang, thank you so much for the reply. I can fully agree with "Had a conniption when we realized how much the whole process would cost" in your signature!

First and foremost, I will get this out of the way... 10 years?!?! My goodness.

This is the list of forms I have come up with. Again, I'm trying to keep the filing costs as low as possible. Am I missing anything?

I-130 - $355.

I-485 - $1010 - I was hoping to file this later, but I guess it needs to be done at the same time as I-130.

I-864 - $70. Filing domestically. (Affidavit of Support).

I-864 - $70. My husband will more than likely require a co-sponsor.

G-325A- For me.

G-325A For my husband.

I-693 - To go alongside I-485. I had the medical exam done once but it has since expired. So, I guess I will have to have a new one, which can cost upwards of $450 according to last price quote.

I would love file for I-131 but I have heard it is prone to rejection and you can be hassled/denied re-entry if you do end up leaving the US for some reason.

There are 2 forms that ask for my G-325A - should I submit 2 copies of my G-325A, or just 1 copy?

I will have to check into adding my name to our cable bill. My husband doesn't have a credit card so that is something we can't look into. I think he'll have to speak to a company like H&R Block to get his taxes sorted out.

I'm still confused about my passport and am hoping someone might read this and be able to shed some light to the remaining questions from both my first and this post.

The fees you've listed seem correct with the exception of the I-864, filing domestically. I believe that is a fee that is levied if you're filing the I-864 for qualification for a IR/CR visa...not as part of AOS which is what you'll be doing. The medical exam fees vary, but $450 does seem a bit excessive...I've seen it at around $300, so call around some more.

As others have stated....do not leave the country, as your overstay will at this point trigger a ban on re-entry, and that is an extra 'obstacle' you do not want to face if you don't have to.

You should accumulate as much evidence attesting to the bona-fide nature of your marriage as possible. You've been married long enough, that you should have some paper trail with which to attest that you are married and co-habiting as a married couple does. Have your husband add you to any household bills he can. You can also have friends and family write letters of support attesting to your marriage.

I will add to this quote. After reading Tax Transcripts and Amendments, it seems highly possible that the individuals who filed taxes for him in past years have done so incorrectly. I believe that in at least one year, his taxes were filed as "single" so we'll definitely have to have his previous taxes re-examined and amended. This will certainly require more looking into though upon first glance, it seems like he would have to have his taxes amended to "Married filing Separately".

Though it raises more concerns, I suppose it is far better to have a concise checklist to know what we need to take care of than to be unprepared. I wonder what else we are missing...

You should be filing taxes as "married filing jointly", not filing separately. As far as I know, that is usually done if the income of one partner will adversely affect the taxes of the other...but for the purposes of immigration, you should be showing a common income tax filing. Look into ammending his previous years returns, to show that taxes were filed jointly, even if you do not have income. The first tax year after my husband and I married, I filed 'jointly' even though my husband did not yet have work authorization...so no income.

[Kittyfang 6]

You should be filing taxes as "married filing jointly", not filing separately. As far as I know, that is usually done if the income of one partner will adversely affect the taxes of the other...but for the purposes of immigration, you should be showing a common income tax filing. Look into ammending his previous years returns, to show that taxes were filed jointly, even if you do not have income. The first tax year after my husband and I married, I filed 'jointly' even though my husband did not yet have work authorization...so no income.

That is what we did. My husband was told that because I didn't have a green card yet, he had to file Single. Needless to say that was wrong. We have amended the last three years and, if anything, we got a little bit more money back (even tho I am not working).

[Deputy Purple 1,294]

If you want to get on your husband's bank accounts all you need to do is present IRS Form W-8BEN in lieu of SSN.

IRS Form W-8BEN (pdf)

I added my wife to one of my accounts even before we were married despite the fact that she had never even been to the US at the time!

[Brother Hesekiel 2,236]

First of all, to this point your situation is simple and straightforward. You need to file I-130, I-485 and the (free of charge) I-765 concurrently.

If you leave the US, you trigger a 10-year ban. Bad, bad, idea.

You need to file taxes married as a resident, because you are a married resident. Simple, huh?

I'm on a tebook on which I really can't type very well, but that about covers it.

[Starburst 4]

File I-130, I-485 and I-765 concurrently and you should be good to go!

I'd fix the single filer on the tax returns and make sure you gather as much evidence as possible. Pictures, letters ect..

Once you get issued an EAD you can start getting things in your name and what not.

I just went through adjustment with a 3 year overstay so feel free to message me anytime

Good Luck!

/starburst

[YuAndDan 153]

Kittyfang, thank you so much for the reply. I can fully agree with "Had a conniption when we realized how much the whole process would cost" in your signature!

First and foremost, I will get this out of the way... 10 years?!?! My goodness.

This is the list of forms I have come up with. Again, I'm trying to keep the filing costs as low as possible. Am I missing anything?

I-130 - $355.

I-485 - $1010 - I was hoping to file this later, but I guess it needs to be done at the same time as I-130.

I-864 - $70. Filing domestically. (Affidavit of Support).

I-864 - $70. My husband will more than likely require a co-sponsor.

G-325A- For me.

G-325A For my husband.

I-693 - To go alongside I-485. I had the medical exam done once but it has since expired. So, I guess I will have to have a new one, which can cost upwards of $450 according to last price quote.

I would love file for I-131 but I have heard it is prone to rejection and you can be hassled/denied re-entry if you do end up leaving the US for some reason.

There are 2 forms that ask for my G-325A - should I submit 2 copies of my G-325A, or just 1 copy?

I will have to check into adding my name to our cable bill. My husband doesn't have a credit card so that is something we can't look into. I think he'll have to speak to a company like H&R Block to get his taxes sorted out.

I'm still confused about my passport and am hoping someone might read this and be able to shed some light to the remaining questions from both my first and this post.

NO Fee for the I-864 You just pay $1010 for I-485, and $355 for the I-130. The $70 fee is only paid if you are interviewing for a visa at a US consulate, ths fee is paid to Department of state.

Although USCIS does not charge a fee for this form, the Department of State does charge a fee of $70 when the Affidavit of Support is reviewed domestically. This does not apply when the Affidavit of Support is filed abroad.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b70f8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

[Tick Tock 3]

Thank you all so very much for your replies, words of insight, wisdom and kindness.

I apologize for not responding sooner; I have been keeping close watch of this thread but was wanting to speak to a few people before I made a reply. However, I've not yet had the chance to do so, so I figure "no point in waiting".

Although USCIS does not charge a fee for this form, the Department of State does charge a fee of $70 when the Affidavit of Support is reviewed domestically. This does not apply when the Affidavit of Support is filed abroad.

The "reviewed domestically" is something I interpreted to mean "if reviewed within the United States". I will certainly be happy to save $140!

I'm feeling rather down about the 10-year ban - I certainly do not want to be banned from the country; all of the nightmares that would cause... The only reason why I wish I could travel (via the I-131) is because since leaving Canada, close members of my family have either passed away or have been diagnosed with or dying of cancer. I do realize that I put myself in this situation and have to live with this reality; hindsight is 20/20 as the saying goes.

I will tack on I-765 to the list. Thankfully, another free to file form!

Thank you to those who corrected me - we will adjust to "married filing jointly." I imagine we will have a long visit(s) to H&R Block in the near future; I just hope we won't have to drive to another town/city to find someone who knows what they're doing since clearly, the last people did not.

Most doctors I've spoken to were willing to do the physical for $100, you can have your own doctor do blood, TB and vaccination and bring the paperwork to the civil surgeon.

- Kittyfang

The first time I had the medical exam done, it was a civil surgeon who completed the whole thing and it cost $375. I did not know that a non-civil surgeon could do some of the work, and have that paperwork taken to an actual civil surgeon. That would certainly save money. The most recent quote I got was from a civil surgeon, so I'll have to see about this other method. I should have my immunization records still - those from Canada and the ones from the US. I had a TB test done too if not mistaken; maybe these things will save more money if they still hold valid. I do not like needles too much either, so the fewer needles I'd be subject to, the better!

As for evidence, we have photos (digital and traditional) from over the years, including when he visited me (several months before I moved). We'll have to print out the digital ones. We can certainly ask friends and family to write letters of support; should such things be notarized? I have a feeling they should be.

Again, thank you all. I hope to be able to make some headway soon.

[Starburst 4]

As for evidence, we have photos (digital and traditional) from over the years, including when he visited me (several months before I moved). We'll have to print out the digital ones. We can certainly ask friends and family to write letters of support; should such things be notarized? I have a feeling they should be.

I never notarized any of mine. I just had them write it out in more of a formal way and "hereby swear the following is true to the best of my knowledge" If you search the forms there should be some examples of letters from family/friends

Good Luck!

/starburst