Adjustment of status, Canadian with no proof or entry

[David49 0]

Hello all, this is my first post here. My question is regarding adjustment of status for a Canadian with no proof of entry into the US.

I'm Canadian and have been married to a Cuban national who's a US permanent resident for 4 years now. We've been married for 4 years and we have a 4 year old daughter that was born in the US.

One year ago my wife filed an I-30 immigrant petition for relative. Around the time she sent in the application I took a flight to Canada. After staying in Canada for a week I attempted to take a flight back to the US. I was denied entry, because their records showed I flew into the US a year before and flew back to Canada a week ago.

I waited another couple of weeks and through friends found people that were driving to New York. I shared the car ride with them and got across the border at the Peace bridge, Buffalo. The immigration officer didn't take all our passports, only the driver's.

A year has passed (I overstayed) and my wife received the I-30 petition approval notice.

My question is if I apply for adjustment of status, whether the circumstances I described would constitute reason for my application to be denied.

Also whether I should apply under category A; having the approved petition for relative, or category F; being the spouse of a Cuban national.

Thanks in advance for any help.

[Inky 1,110]

Hi, your not adjusting from a family visa, you never got the family visa because you never went to an interview. You are adjusting from a tourist status.

[David49 0]

Hi, you are correct. Sorry I guess I put it in the wrong forum section. Can a moderator please move it to the appropriate one.

Edited September 11, 2010 by David49

[Dakine10 5,452]

You probably should talk to an attorney. Entering the way you did, I'm not sure you will be eligible under the CAA.

As a spouse of a Cuban national, many provisions of the Cuban adjustment act apply to you but it seems you were not admissable AND entered without inspection at the time of entry. According to the information on USCIS CAA page, you are not eligible if not admissible. I'm not personally familiar with the CAA so I'm not really trying to answer, just raising the issue.

[milimelo 4,412]

Moving to AOS from tourist, student, work visa.

[HeatDeath 430]

The OP did NOT enter without inspection. "Entering without inspection" means swimming a river or hiking through the wilderness. The car the OP was in went through a CBP border station, and the OP was counted as an occupant of that car. That means the OP was inspected [however briefly and inadequately] and entered the US as a Canadian tourist, which status they have since overstayed. Whether or not they would have been found inadmissible if inspected more closely, they were admitted legally as a Canadian tourist. If they never spoke to the CBP officer they probably didn't even misrepresent themselves. They got spectacularly lucky is what they did.

OP: If you are found to have misrepresented yourself to the CBP officer who admitted the car you were in, that could be grounds for denial of your AOS. If you never spoke to the officer, and the officer never even asked for your passport, you probably didn't misrepresent yourself, unless the driver of the car said specifically that you were all returning to Canada that day, or something like that. The precise words that were exchanged (and far more importantly, the precise records the CBP officer took) matter, but you're probably ok. You might want a one-time consult with an immigration attorney to confirm, though.

I have NO idea how the "spouse of a Cuban" thing interacts with any of this. That's perhaps another question for the attorney. But I am certain you did not enter without inspection and am 85%+ certain you did not misrepresent yourself at the border, and therefore remain eligible for AOSing from Canadian tourist status.

[David49 0]

Thanks for the replies.

I'm %100 sure there's no record of me particularly entering the US as all the officer asked me was what's my citizenship, and never took mine or the other two passengers in the car passports, only the driver's. Is this not effectively the same thing as entering without inspection when it comes time to prove when I entered, if such proof is required at some point? Do they just accept at AOS that being a Canadian and entering the US by car such a thing is possible?

I already spoke to one immigration lawyer here in the US and he didn't know. I'm looking for a more informed lawyer to consult but it's the weekend, frustrating.

I could also go back to Canada and wait for the interview and visa there. I'm afraid that having been denied entry a year prior, in my passport is written I-275 executed, I will not be given a visa based on the approved I-30 petition for relative, or I will not be let pass at the border even if I have the visa.

Going back to Canada to wait for this will put us in great difficulty as my wife can't manage everything, we have a 4 year old daughter, by herself.

[Harpa Timsah 13,258]

I have to agree with HeatDeath on this one that you were inspected. You presented yourself at the border with papers and the CBP inspected you (maybe if only by eyeballing you). It was his/her choice not to look at your passport; not yours.

As to the Cuban thing, why not go and make Infopass and ask them? If you are worried about getting caught or something, perhaps your wife could go and ask them. I went to Infopass and asked them about my options and they gave me a pack of forms with relevant codes and such highlighted for me. They could tell you what category you would put.

So I think now the question is, if you tried for AOS and were denied, what would the next step be? And what are the chances of getting denied? Would the reason be "previously inadmissable due to overstay?" But you are back in now, so any ban was clearly not effective. I am presuming if it were denied, you would go home and file a hardship waiver, and because of your daughter I think it would get accepted easily. Hopefully people more familiar with waivers can help more... I don't want to suggest a course of action that would make things worse...

My question is... why did you fly home after overstaying a year? You should have filed CONCURRENT I-130/I-485 then and just waited it out for a few months. But, that's neither here nor there now I suppose. Good luck.

EDIT: Oh dear... I have just realized that you entered with intent to immigrate the last time, which definitely changes your eligibility. Man, what a can of worms.

Edited September 12, 2010 by Harpa Timsah

[David49 0]

Thanks for the reply.

It is a rather complicated situation at this point. I realize full well now I shouldn't have left, but at the time I felt I had to.

What is infopass?

If AOS is not likely to happen, seeing as how there is no record of me coming in, I could go back to Canada and wait for the visa there, it will be like I was never here for the last year and therefore done nothing against immigration law. I will only do this as a last resort if I cant do AOS. The only thing standing against me at that point will having overstayed 1.5 years ago, and that my wife and daughter will have to make it on their own for I don't know how long.

[Inky 1,110]

If you have a Ban from your overstay, you might be able to apply a waiver not sure. But thats only after you are denied at your visa interview ( IF that happens )

I would go with the INFOPASS appointment or go to a really good immigration lawyer.

Go here, make an infopass appointment, bring your passport to get in. Usually no cellphones allowed in the building. https://infopass.uscis.gov/info_en.php

Edited September 12, 2010 by Inky

[David49 0]

I can't recall for sure but I don't think I have a ban. I'm remembering something being said about trying again after 6 months, after it was done the officer that wrote me up wasn't harsh with me.

How can I find out what restrictions if any are on my record?

That infopass makes me nervous, too much information necessary to give up front, and my questions involve discussing possibilities that they're not going to be sympathetic to.

Edited September 12, 2010 by David49

[Inky 1,110]

I can't recall for sure but I don't think I have a ban. I'm remembering something being said about trying again after 6 months, after it was done the officer that wrote me up wasn't harsh with me.

How can I find out what restrictions if any are on my record?

That infopass makes me nervous, too much information necessary to give up front, and my questions involve discussing possibilities that they're not going to be sympathetic to.

Then going with finding a really good immigration lawyer and see what they say to your questions may be better if the infopass you feel isnt the right option.

For finding out the restrictions and stuff im not sure someone else might know but that is a good thing to check on too so you know a little more about what your headed into.

I hope you can get this all sorted out.

[Harpa Timsah 13,258]

Thanks for the reply.

It is a rather complicated situation at this point. I realize full well now I shouldn't have left, but at the time I felt I had to.

What is infopass?

If AOS is not likely to happen, seeing as how there is no record of me coming in, I could go back to Canada and wait for the visa there, it will be like I was never here for the last year and therefore done nothing against immigration law. I will only do this as a last resort if I cant do AOS. The only thing standing against me at that point will having overstayed 1.5 years ago, and that my wife and daughter will have to make it on their own for I don't know how long.

If you were to go back, they would probably check your passport so they would know you had been there, just not for how long. Your current overstay would NOT just disappear. I really think you should get over this whole inspection thing, unless you are not telling us the whole story and were laying under a blanket hidden in the backseat or something. You can ask the other Canadians, but I think your status is Canadian visitor (which works like a B-2) and for I-94 you put none - Canadian visitor. Like I said, it's not your fault you weren't given a stamp in your passport, unless you aren't telling us something.

The real issue is if your overstay and denial at entry and the reason for that. And your intent at the border this time. So you have an approved I-130? Why didn't you apply for I-485 at the same time? Can you afford to try for the AOS and have a waiver plan if it gets denied? That's where you need an attorney. Good luck.

[Dakine10 5,452]

The OP did NOT enter without inspection. "Entering without inspection" means swimming a river or hiking through the wilderness. The car the OP was in went through a CBP border station, and the OP was counted as an occupant of that car. That means the OP was inspected [however briefly and inadequately] and entered the US as a Canadian tourist, which status they have since overstayed. Whether or not they would have been found inadmissible if inspected more closely, they were admitted legally as a Canadian tourist. If they never spoke to the CBP officer they probably didn't even misrepresent themselves. They got spectacularly lucky is what they did.

OP: If you are found to have misrepresented yourself to the CBP officer who admitted the car you were in, that could be grounds for denial of your AOS. If you never spoke to the officer, and the officer never even asked for your passport, you probably didn't misrepresent yourself, unless the driver of the car said specifically that you were all returning to Canada that day, or something like that. The precise words that were exchanged (and far more importantly, the precise records the CBP officer took) matter, but you're probably ok. You might want a one-time consult with an immigration attorney to confirm, though.

I have NO idea how the "spouse of a Cuban" thing interacts with any of this. That's perhaps another question for the attorney. But I am certain you did not enter without inspection and am 85%+ certain you did not misrepresent yourself at the border, and therefore remain eligible for AOSing from Canadian tourist status.

Sorry, but people do it all the time by hiding in cars too. It's not that David wasn't inspected, its that he will have to prove he was.

The problem now is David has no entry documentation and he was NOT eligible to enter as a tourist without a visa due to his prior inadmissability. In the OP's situation, he can not enter and withold relevant information to gain entry the way he did. He was simply not eligible to enter the USA this way.

David, you will have a chance to explain to USCIS why you don't have entry documents. The problem is as you guessed, there is no way for them to confirm this. If you convince them that you were inspected the problem is that if you were inadmissable at the time of entry (which I believe you were) or if you misrepresented the facts, (which I think you did by concealing your inadmissability) then you have committed a deportable offense as defined in ACT 237 of the INA.

ULTIMATELY, we are all posting opinions here and you know what they say about that.

David, you need to find a good immigration attorney to sort out your options.

[Dakine10 5,452]

I can't recall for sure but I don't think I have a ban. I'm remembering something being said about trying again after 6 months, after it was done the officer that wrote me up wasn't harsh with me.

How can I find out what restrictions if any are on my record?

That infopass makes me nervous, too much information necessary to give up front, and my questions involve discussing possibilities that they're not going to be sympathetic to.

David, I really think you should talk to a competent immigration attorney FIRST. I would not go to infopass unless you are sure you were not inadmissible in the first place. If you were inadmissible at your last entry, you are deportable now.

If you overstayed by 6 months or more the first time, chances are good that you triggered a ban.

If you WERE admissible, that makes things a WHOLE lot better. I really hope you were because a lot going forward hinges on that.

Your case is very complex. You really do need to get things sorted out legally 1st.