AOS i-485 from TN, total mess, please help!

[leash5 3]

Hi,

I have been living and working in the USA since 2005 on a succession of TN Visas, a TN Visa being basically a non-immigrant intent temporary work visa, issued for one job at a time. During all of that time, I sincerely never intended to immigrate the USA.

I was issued my last TN Visa in March of 2008, with an expiry of March 2009. After a few days on my job, it didn't work out, and I took another job without applying for a new TN. I was completely careless about learning the rules as I never thought I would be attempting to immigrate. STUPID! SO basically, after much reading, I have now learned that the TN I was working under during 2008-2009 was invalid, as they are only good for the one job they are issued for, so I was/ am in a period of long overstay/ out of status.

I got engaged to a USC (who I had been dating and living with since 2006) in March 2008. We got married in Canada in January 2009 as I wanted to be married in front of my family and friends. So basically, I left the country (single) and returned (married) on what turns out to be an invalid TN. Aaack! When we came across the border after our marriage, the border guard asked us almost nothing-- if he had, I may have been alerted to possible difficulties, and stayed in Canada while attempting to sort this out. All he asked was "you were born there?" (a very small town in the north). I said yes, he said go ahead. He didn't even swipe our passports or ask us what we had been doing or where we were going.

At the time of our marriage, and for about a year after, our intention was to have my husband immigrate to Canada. I stopped working here in April of 2009, and stayed here with him while we filed for his Canadian immigration and then waited for his Canadian status to be approved. I didn't think much about what the overstay or status during the border crossing might mean, as I thought I was moving back to Canada.

I applied to University in Canada and was accepted, and I my husband was accepted as a permanent resident of Canada. We were going to move this past spring.

As the date drew near, my husband asked me to instead consider immigrating to the USA. His job is going well here and he fears being able to continue in his career in Canada. I have a lot of faith in his abilities, so I said yes, I would apply for a green card.

Questions/ summary:

1) I recently found out I was technically in overstay-out of status when I left for my marriage in Canada and then re-entered the USA. Will this prevent me from being approved to adjust status and get a green card?

2) Would that be considered an illegal entry?

It was due to complete stupidity on my part, and i do have my university acceptance letter in Canada, as well as my husband's visa to enter Canada as a permanent resident-- thus (hopefully) proving that when I crossed into the USA I did not intend to immigrate here permanently.

3) OR, would my entry to the USA during overstay/ out of status trigger a 10 year ban if discovered during the review of my green card paperwork? When we entered back in after our marriage I could be considered having already overstayed by 11 months, and now it's been more than 2 years.

4) My biggest worry is being banned from the USA forever (I honestly think this may cause a huge amount of friction in my marriage, and perhaps divorce, not to mention sadness at never being able to see any of my American family and friends again....). And I also worry about being deported-- how long it would take, if it might happen at my AOS interview, etc. I am almost obsessed with worrying about this.

Can anyone help at all? Did I make a huge mistake in applying?

Thanks so much.

Edited July 20, 2010 by leash5

[Leigh Ann 8]

I don't know anything about a TN visa so I can't give you specific advice. What I can tell you thought, is that generally, overstays are essentially ignored for the spouses of US citizens. The typical advice is now just NOT to leave the US again. Stay here until you get your green card. Hopefully someone with more experience will come along with more advice.

[HeatDeath 430]

1 ) You are currently in the US on a legal status [which is to say that a CBP officer inspected you (however inadequately) and let you in] - you did not enter without inspection. And you are married to a US citizen. This combination is usually sufficient to adjust status.

2 ) An illegal entry would require either entering the US without presenting yourself to US Customs (Entry without Inspection) or lying/deliverately obfuscating your status to a CBP officer (Misrepresentation). You haven't actually done either here, so you're probably ok. You can expect the immigration officer at your probable AOS interview to ask you some pretty hard questions about it, but stick to your guns, telling the whole truth and nothing but the truth - that at no point did you ever misrepresent yourself to any government official regarding anything even tangentially related to immigration.

3 ) Bans are triggered upon exiting the country. Theoretically, you may have triggered one upon leaving the first time. but if that was the case, I would think the CBP officer should have noticed it upon your attempted reentry. Your best bet is to stick to the statement of facts above - you entered with inspection, you at no time misrepresented yourself to any government official, and you are therefore legally in the US at the moment. As far as I know, all entries to the US using a visa will result in you having an I-94 and/or a passport stamp that indicates clearly what status you entered under. If you have no stamp from this most recent entry you are likely a de facto Canadian tourist. It is legal to adjust status from that, if you are married to a USC. Again, the fact that your were admitted as a tourist means that, even if they are technically entitled to put you under a 10 year ban, they have not done so yet, and cannot do so until you leave the country again.

4 ) Any deportation and ban would, I think, be initiated by the immigration officer in response to information that comes to light at your AOS interview. I don't believe anything is likely to happen, one way or another, prior to that. In the absolutely worst possible case scenario, you'll likely be given 30 days to leave the US voluntarily, and a 10 year bar. There are options to appeal that, but you would DEFINITELY need an immigration lawyer if that happens. In fact, a one-time consult with one now would be a few hundred dollars very well spent, I think.

It is far more likely that, as a courtesy to your USC husband, your previous out of status situation will be forgiven and you will receive permanent resident status. One member here, Just Bob, spent almost a decade out of status in the US before marrying and adjusting status. USCIS will forgive a lot, as a courtesy to your USC spouse, assuming you haven't committed one of the three dealbreakers - Entry without Inspection, Material Misrepresentation, or Misrepresenting yourself as a US Citizen - and you haven't done any of those, so you should most likely be ok, even if the situation is a little uncertain at the moment.

You've heard this before, but it bears repeating - for the love of all that is holy, DO NOT LEAVE THE US. You have been very fortunate. Pray your brains out for that to continue, but you should be ok.

[leash5 3]

Thanks so much for your thoughtful reply. Everything you have said is my "best case scenario" and it is such a relief to hear someone else come up with it as well!

[SaraDee 9]

Thanks so much for your thoughtful reply. Everything you have said is my "best case scenario" and it is such a relief to hear someone else come up with it as well!

I wouldn't worry too much. A close friend is in a very similar situation. I went to a lawyer with her and she said, "Everything should be fine as long and you stay in the US till you get your green card." She also said that they probably won't even bring up the TN visa at all in the interview, but if they do just tell the truth. I think she went to a few lawyers and they all told her the same thing.

You are here on a valid status and your past overstay and work will be forgiven as long as you didn't use someone's social security info or did not pose as an American citizen.

Also, make sure to pay any taxes you owe the govt, even from the job you took after you left the TN position. You will not get a green card without paying your taxes.

Good Luck!!!

[leash5 3]

I wouldn't worry too much. A close friend is in a very similar situation. I went to a lawyer with her and she said, "Everything should be fine as long and you stay in the US till you get your green card." She also said that they probably won't even bring up the TN visa at all in the interview, but if they do just tell the truth. I think she went to a few lawyers and they all told her the same thing.

You are here on a valid status and your past overstay and work will be forgiven as long as you didn't use someone's social security info or did not pose as an American citizen.

Also, make sure to pay any taxes you owe the govt, even from the job you took after you left the TN position. You will not get a green card without paying your taxes.

Good Luck!!!

Thanks! I am totally up to date on my taxes. What mostly worries me, again, is that i did leave and enter the USA after having overstayed by 11 months, technically. I consulted a lawyer, and she said I had almost no chance of getting a green card, and that they would discover all of this with my background check. But it's the kind of thing where I won't know unless I try, and if I just leave for Canada without trying, I will definitely be banned, so I guess I may as well give it a shot! I just really also fear what kind of talking ot I might get in the interview and some kind of possible deportation on the spot. Hopefully that is just me being paranoid!!

[JimVaPhuong 4,863]

I tend to agree with HeatDeath here. You didn't enter the US illegally. You were paroled into the US by an immigration officer. There's nothing illegal about a Canadian being paroled into the US with an expired visa in your passport, since Canadians can be admitted without a visa. In addition, CBP has the authority to adjudicate and/or reauthorize a TN visa at the border.

What exactly happened at the border? Did the CBP officer examine your passport and see the TN visa, and then admit you after asking only the one question? Did you specifically tell the CBP officer that you were entering with the TN visa? I'm just trying to figure out if there's any chance of a misrep at the border.

[leash5 3]

we drove up to the border after a really long wait, and literally all he did (that i could see-- my husband was driving) was take our two passports, look at the first page of mine, ask, in a shocked voice, "you were born there?" (very small first nations town) and then said we could go through. we got no stamps, and he did not, to my knowledge, see my TN-- he certainly did not ask about it.

in my experience this is not entirely unusual. I spent most of my life living in a town very close to the border and many times have driven through without them even taking my passport out of my hand.

however, in this case, i wish he HAD asked questions, so i would have known if i was doing something wrong, or received some kind of documentation.

[leash5 3]

p.s. in regard to "There's nothing illegal about a Canadian being paroled into the US with an expired visa in your passport, since Canadians can be admitted without a visa."

i think we're only allowed to be in the US for 6 months of the year, unless we have an active visa. so as i was coming back in after an 11 month overstay, with a visa that was technically invalid, therein lies the problem. as i mentioned, not thinking i was ever going to immigrate, i had totally not looked into any of these rules, so was unaware i was doing anything wrong-- not at all a good excuse, but true.

[HeatDeath 430]

If you received no passport stamps, then you were admitted as a Canadian tourist. If your TN visa had played any role in your most recent admittance, there would be a stamp in your passport to document that.

You are a Canadian tourist, and are currently in the US legally (and will continue to be legal until 6 months after this most recent admitance). You stated no particular intention to remain in the US to the border officer, and therefore did not misrepresent yourself. Better yet, it sounds as if you actually (please clarify) had no immigrant intentions at all when you crossed the border. This means you've done nothing wrong, even in principle. The border officer formed an impression of your intentions that was completely accurate - you wanted to enter the US as a tourist, having no immigrant request, and he admitted you as a tourist with no immigrant intent.

Remember, there is no legal requirement to volunteer info to a border officer, only to answer all of their questions with the truth, the whole, truth, and nothing but the truth. I'm guessing he couldn't tell you two were married from just your passports, but he could tell you were a couple with two different nationalities, and it was his responsibility to determine if a relationship with immigration-risk implications existed. When I drove through a land PoE with my now-wife from Canada into the US 2 years ago, the border officer most certainly noticed that we were a Canadian and an American, and considered me an immigration risk until we told him we were planning to do a fiance visa.

I stand by what I said earlier. You are in the country on a legal status. No misrepresentation has occurred, and you are married to a USC. You can probably expect a bit of a grilling at the AOS interview, but there should be no significant legal obstacles to you adjusting status.