Adjustment of status, Canadian with no proof or entry

[David49 0]

I only recently received the approved I-30, so I couldn't apply for AOS before.

I believe I can go back to Canada with only a citizenship card? and use their walk through border crossing. In this case will there be a record?

Thanks for bringing to my attention the important point about possibly having been inadmissible for my last entry, and how that affects things now. How can I find out whether I had a ban?

I'll be seeing an immigration lawyer Monday. The problem is finding one that's experienced with all the factors of my situation.

[David49 0]

With regards to being denied entry a year ago this is what it says in the paper I received; "Subject is inadmissible to the US under section 212(a)(7)(A)(i)(I) of the INA, immigrant without document." Does this indicate whether I have a ban, and for how long? The more I try to remember the more I'm sure I was told not to try to enter again for 6 months. Is there a 6 month ban?

A big thank you to those who brought to my attention that my entering at the time I did is very bad for my case.

[David49 0]

I found this information, is it correct?

In layman's terms, 212(a)(7)(A)(i)(I) means immigrant not in possession of an immigrant visa. Every applicant for admission to the U.S. is considered to be an immigrant unless and until he can establish entitlement to a nonimmigrant visa classification.

By previously overstaying you failed to establish that you were a bona fide nonimmigrant visitor. As such, the officer found you to be an immigrant without an immigrant visa.

You were allowed to withdraw your application for admission in lieu of expedited removal. You are not subject to a bar of any length, but you must obtain a new visa in order to apply for admission to the U.S.

[Inky 1,110]

Ok, since you were IN THE USA, and married.

You COULD HAVE filed the I-130 and the AOS - AT THE SAME TIME, and just gone the rout of AOS instead of applying for a visa.

Since you did not and you only applied for the I-130. You cant AOS, You would have to go back to canada, have a medical and interview, pass the interview and get a visa. I think that is where you are getting confused with the concurant filing. You cannot just file the I-130 inside USA and then after that apply for AOS based on the "approved" I-130 it does not work that way.

If you are to disregard the approved I-130, you need to apply for aos cost of 1010$, with all the evidence you have. Then you would have an interview and IF you passed you would get a green card based on a tourist married to an american -NOT- on the approved I-130 or your wife because she is cuban.

You super need to talk to that lawyer on monday. If you dont think hes good or you dont like his answers just go find another lawyer and ask him etc etc till you find the one you think can best help you. This is one can of twisted pickels! but I hope you can sort it out weather you have to go back to canada or what.

[David49 0]

Thanks for the reply.

You cannot just file the I-130 inside USA and then after that apply for AOS based on the "approved" I-130 it does not work that

I don't believe this to be correct. This is from the I-485 instructions, further in the instruction about which documents to send along with the application, it says to send a copy of the approved I-30 if applicable. I have the approved I-30.

Edited September 12, 2010 by David49

[ValerieA 350]

This is incorrect:

Since you did not and you only applied for the I-130. You cant AOS, You would have to go back to canada, have a medical and interview, pass the interview and get a visa. I think that is where you are getting confused with the concurant filing. You cannot just file the I-130 inside USA and then after that apply for AOS based on the "approved" I-130 it does not work that way.

If you have an approved I-130, you can send the I-485 package with a copy of the approval notice. They do not have to be filed together. The catch lately is that, if you file them separately, you pretty much have to wait until you actually receive the I-130 approval to file the I-485 or things are getting messed up. OP, you have the approval, just make sure you send a copy of it with you AOS package.

Edited September 12, 2010 by ValerieA

[Serenaty 0]

Hi David49 I believe I may have an almost identical situation.

I entered the states in 06 on a visit. Overstayed and eventually got married to my USC husband. my entry was via the train where they looked at my BC and Health card. My passport was empty. When it came time to prove my entry I still had the train ticket confirmation so i included that in my package. When it comes to Canada its hard sometimes to prove entry bcecause we were able to enter w just a bc and photo id. i know things are different now but when i travelled thats all u needed. I have had no problems thus far and just received my EAD. If you have any questions feel free.

[David49 0]

Thanks for the replies.

Serenaty, when filling out the I-485 it asks for date and place of entry. Among the required documents to attach it asks for a passport with the stamp. It's a fact that Canadians crossing the border by car do not get a stamp, so it's a photocopy of a blank passport that I would send. So far I'm giving them what they need to see.

At what point were you asked to prove your entry? If you were asked to prove it, was it via mail correspondence or in person during an interview?

[Dakine10 5,452]

With regards to being denied entry a year ago this is what it says in the paper I received; "Subject is inadmissible to the US under section 212(a)(7)(A)(i)(I) of the INA, immigrant without document." Does this indicate whether I have a ban, and for how long? The more I try to remember the more I'm sure I was told not to try to enter again for 6 months. Is there a 6 month ban?

A big thank you to those who brought to my attention that my entering at the time I did is very bad for my case.

It appears they did not allow entry as a tourist because of your immigrant intent. 212(a)(7)(A)(i)(I) means you were inadmissible as a tourist because you were an intending immigrant.

(A) Immigrants.-

(i) In general.-Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission-

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a)

That seems like good news since they also said you could come back in six months, it would indicate that you were not subject to an entry ban at the time of entry. They denied you because they considered you an intending immigrant at that entry.

There is still the problem of entering as a tourist the second time. I still think the attorney visit is needed but things appear to be looking up. As long as you didn't misrepresent yourself the second time, I feel a lot better now.

[Dakine10 5,452]

The other thing with the attorney is finding out if it is best for you to apply for AOS using the CAA eligibilty vs the spouse of a permanent resident vs waiting till your spouse is a USC.

Since your wife is not a US citizen, some of the normal protections of applying as the spouse of a USC will not be available. Spouses of USC's do not need a waiver for overstaying. You may. That could significant for yor case.

There appear to be many benefits to applying via the CAA, but I'm just not familiar enough with it to know if it's a better option for you.

The 3rd option to ask the attorney is if you should wait until your wife is a USC for you to adjust status. This will help with your overstay but the risk is waiting longer without a status. It may be the only option though.

If your second attorney is also not helpful, don't hesitate to post questions with some of the online immigration attorney's who have forums. You may find one who is more familiar with all the aspects of your situation.

Edited September 13, 2010 by Dakine10

[Dakine10 5,452]

Hi David49 I believe I may have an almost identical situation.

I entered the states in 06 on a visit. Overstayed and eventually got married to my USC husband. my entry was via the train where they looked at my BC and Health card. My passport was empty. When it came time to prove my entry I still had the train ticket confirmation so i included that in my package. When it comes to Canada its hard sometimes to prove entry bcecause we were able to enter w just a bc and photo id. i know things are different now but when i travelled thats all u needed. I have had no problems thus far and just received my EAD. If you have any questions feel free.

The big differences are you were not already married when you entered and your spouse was a US citizen. The former means you don't look like you entered as a tourist with intent to immigrate and the latter means your overstay was not held against you. Those are the 2 issues David will have to overcome.

[David49 0]

Thanks for the reply.

If by CAA you mean Cuban adjustment act, then for that I must be in the US for a year and a day before I apply for AOS. Seeing as how I was not allowed to enter the US for six months after being denied entry, something I didn't recall until this thread, I will need to wait another six months from now. And I will still face the same problem of being without proof of entry. Although it is "required" going this route that I overstay.

My wife has one more year to go before she can apply for citizenship. It says in the paperwork we received "If a period of one year passes without communication to the NVC, all submitted fees and documents expire and must be resubmitted to resume the immigration process." I'm taking this to mean that if we don't use the approved I-30 waiting for my wife to become a citizen we will lose the approved I-30.

[Starburst 4]

Thanks for the replies.

Serenaty, when filling out the I-485 it asks for date and place of entry. Among the required documents to attach it asks for a passport with the stamp. It's a fact that Canadians crossing the border by car do not get a stamp, so it's a photocopy of a blank passport that I would send. So far I'm giving them what they need to see.

At what point were you asked to prove your entry? If you were asked to prove it, was it via mail correspondence or in person during an interview?

I never had a stamp in my passport that showed my date of entry. What I did was, write up a letter stated that I entered the country as a tourist, through X port and was inspected by an immigration officer. I then signed it, and it included it anywhere that they need an I-94 on the forms. You could try and do this as well.

I was never asked or questioned at my interview about my entry to the US.

I wish you the best of luck. I hope you can find a good lawyer that can help you through everything!

/starburst

[David49 0]

Well this is almost year later and my AOS was just denied. The reason stated is "there is no evidence that you were inspected and admitted into the US", which was my concern in posting this thread to begin with.

There is no appeal of this decision.

I may file a motion to reopen or reconsider with form I-290B within 30 days. This will cost $630.

My wife is 3 months away from getting her citizenship, the citizenship application was already sent in.

Can you please recommend a course of action?

I'd like to speak to an immigration lawyer but have doubts they can do anything.

I'm considering going back to Canada, and reentering the US (this time through an airport where there will be a record). My question is; when I'm interviewed by the immigration officer and asked what is the purpose of me traveling to the US and how long will I stay, if I say I'm going to visit my daughter and coming back in 2 weeks and I'm allowed to enter, then reapply for AOS, would I have misrepresented myself and then not be eligible again?

[Brother Hesekiel 2,235]

I'm Canadian and have been married to a Cuban national who's a US permanent resident for 4 years now.

Unless I'm missing something here, you are not eligible to adjust status as you are in the F2A priority category. Thus your waiting time is about 3 years and 4 months after your spouse's I-130 has been approved.

Edited August 6, 2011 by Just Bob