Newly Weds and looking for best approach

[S Sundaram 0]

Hi All

Here is the background on where we are.

Met in 2000, she came to the US.

Had a relationship me going there a lot and she coming every now and then. She was hassled a few times, while crossing but was always let through. Had a son and daughter in 2006 and 2007, both born in Canada.

Got my naturalization this April and became a citizen. She's been here for almost a year now, she did overstay. Though she never had a passport stamped when she crossed, since it was always by road.

Got married yesterday.

Now my questions are :

Should I send them back and file the i130 and go through the K1 route.

Or apply for AOS while here?

She is planning to go back and visit her family this week, so should be hold off.

If she goes back can she come back and then we can file for AOS? This site is very useful and the reason's for this question is I want the safest and quickest way without being away from the kids for very long.

Thanks

[Danu 19]

If she goes back, she can't come back and AOS. She would need to do it now and wait till she gets her GC to leave. Otherwise you will have to go the CR-1 Route with her outside of the states (if shes now been here long enough to accrue a ban as well, a waiver would be needed to allow her to come back). My advice would be to do the AOS as shes already here and have her hold off on visiting the family until everything is approved.

Edited July 13, 2010 by Danu

[nickbits 43]

K1 is for a fiancee, so it does not apply to you.

Honestly you might want to talk to a lawyer about your best option.

[Darnell 8,478]

1 year overstay ?

oh my.

Suggest file for AOS, instead.

read this --> http://www.visajourney.com/content/i130guide2

and make sure she qualifies.

that 1 year overstay will hurt her, if try to obtain CR-1 visa instead of filing for AOS.

Seriously.

[Udella&Wiz 325]

Are teh kids back in Canada or with you? Hopefully with you and you can go with Danu's comments. They can of course fault you for the overstay, so be prepared to answer questions.

[SapphireDreams 71]

I think because of your 1 year overstay your best bet is to do AOS. I'd take some time to do some research and definitely do not do any travelling outside of the US for now until you get status in the US.

[Kathryn41 3,205]

If she had no intent on getting married on her last entrance to the US, then do the AOS now. In the meantime, she must not leave the US until she gets her green card. If she does she will incur an automatic ban upon re-entry for either 3 years (an overstay of between 6 months and one year) or 10 years (an overstay of more than a year). Once she gets her green card any overstay time is forgiven and she will be able to leave and return to the US without a problem.

Even if she would not incur a ban upon leaving and wanted to visit Canada then return to do the AOS you could not do that as that would be considered visa fraud and could result in up to a life time ban depending on what happened at the border. She can only adjust status if she entered the US without the intent on getting married on that 'visit' and then deciding to marry and remain in the US instead. I'm afraid that her family is going to have to be the ones to visit her, not the other way around for a while. Also, don't bother applying for an I-131- AP (Advance Parole). They will give it, but she can't use it. If she does, she will incur the ban.

She will need to obtain some necessary documents from Canada while in the US and she will require these for the AOS. She will need a fingerprint Canada Wide criminal check as a name only check is available only if you are in Canada - and she cannot realistically leave the US right now; a copy of her long-form birth certificate; a Canadian passport, etc. Even though it will be easier to get these done in Canada it is vital that she does not leave the US until she does get the green card or you are in for a very long, very trying and possibly unsuccessful venture.

I'm glad you found us before she had left for Canada rather than after.

PS - Congratulations on your marriage.

Edited July 14, 2010 by Kathryn41

[ashenflowers 5]

Just in case you had any doubts, I'd have to say Kathryn is absolutely correct, as are the others who've suggested NOT LEAVING the U.S., applying for AOS, and waiting until you have a green card. You'll have some explaining to do during the process, and don't want anything (i.e. a ban) to make this harder. Also, I'd actually suggest not getting a lawyer. Your case is complicated, but not yet THAT complicated, and quite frankly, all I've ever heard from people with lawyers and this process, is that they make it worse.

[S Sundaram 0]

I have one more question, if i do an AOS, how do i show the proof of entry stamps as her passport has never been stamped when she crossed by road. They never stamp passports when we cross by road.

[Kathryn41 3,205]

There basically isn't too much of a problem with that for Canadians. State the date that she crossed the border and at what Point of Entry (POE) and how (eg private automobile, bus, etc.). State that as a Canadian she was just waved through by the border guard and you have no official record of her arrival in her passport. USCIS is aware of the special border situation with regards to Canadians.

The one thing in your favour is that by presenting this information you are showing that there would be a ban if she left so it isn't really something that you would say unless it was true as there would be no other benefit to admitting this. It appears to be incriminating but because of that it appears realistic and honest, which is what you want. It is most likely that you will have an interview and they may ask about the entry. Tell the truth. That is the one other comment I will make. Even if it appears to be something that might be incriminating or make things look bad in some way, don't misrepresent the fact or try to hide it. Illegal presence after entering on a valid visa (and it is a non-paper B2 visa for Canadian visitors) is forgiven - misrepresentation is not and has serious repercussions.

[Udella&Wiz 325]

Yes - very few, if any of us, have stamps in our passport for entering the US. I think I had 1 when I flew and every other time, nothing.

[S Sundaram 0]

Thank you very much... And sorry for the questions. A few more.

Say she left, and i file it through the CR1 route or the K3 route and she only crosses after her paperwork is complete? Is that a safer option or is it too risky? Also sinc ei have to file i 130 for everyone, i am assuming its 3 forms with three separate fees?

[LiLMermaid 2]

As has been stated already by a few others...If she leaves the USA she will automatically incur a 3 or 10 year BAN. So even if she applies for a CR1 they will NOT just let her back in if it is approved. She would have to file for a waiver AFTER she gets the CR1 visa, from Canada. That process would then take at least a YEAR, cost MORE money and they can and may DENY her.

So DO not let her leave unless you are prepared for her to be living in Canada for 2 or more years. File for AOS now and STAY until it is done.

[Kathryn41 3,205]

If she leaves, she will incur an automatic 3 year or 10 year ban! She will not be allowed to return to the US, even after the paperwork is processed. Please do not take this information lightly - this is the most critical information you have at this moment. It must be taken into consideration of all of your and her actions. If she leaves the US without a green card she is not going to be coming back to the US for a very, very, very long time - no if, ands, or buts.

The USCIS will continue to process the CR-1 visa (K-3s are virtually obsolete now and are administratively closed after the I-130 is approved) and it will be denied at the interview - in approximately 1 year. You would then have to file for a Hardship waiver - which means you have to prove to the US government why it would be a hardship for you to move to Canada, not a hardship to be separated - and the earliest you can do that is at the denial interview. It will take a long time and a lot of money - possibly even as long as the ban that she would trigger if her overstay is currently less than a year. Why take this risk when you do not have to? Be patient now - short term pain for long term gain is far better than short term gain for long term pain which is what will happen if she leaves the US now before she gets a green card. Don't ever treat US border security and immigration with less than the absolute seriousness that they treat these issues - they don't make exceptions and they don't play around. They mean business and they have no sympathy.

I believe her children would be included in the I-130 but I will let someone else handle that question.

Edited July 14, 2010 by Kathryn41

[S Sundaram 0]

Thank you very much for all the information and I am not taking any of this lightly.

But just out of curiosity, how does her leaving automatically impose a ban on her. Please pardon me for my stupid questions, but I would just like to know how the automatic ban works, 'cos I read somewhere that if she came here without an intent to immigrate and goes back and files it properly that should also work. So if someone can please clarify that, i would greatly appreciate it.

I have already started the paperwork for the AOS. So thank you all for all the information.