Adjustment of status, Canadian with no proof or entry

[Harpa Timsah 13,258]

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.

I believe the OP is trying to adjust through the Cuban Adjustment Act so the wait times are all messed up.

[David49 0]

The denial of my AOS has nothing to do with wait times. I had my interview and just received the denial notice. The reason stated is that there is no evidence I was inspected and admitted to the US, so I haven’t met the burden of proof for eligibility for AOS under section 245 of the act. The notice further states that there is no appeal of this decision, that I may file a motion to reopen or reconsider with I-290B within 30 days, and that this decision leaves me without lawful immigration status and I’m therefore present in the US in violation of law. I am required to depart the US. Remaining in the US without authorization may result in the initiation of removal proceedings against me and may affect my ability to return to the US in the future.

I'm looking for advice on what options I have to gain legal status in the US at this point.

Edited August 6, 2011 by David49

[Harpa Timsah 13,258]

Well, it does have something to do with wait times, because normally you shouldn't have been eligible to file a I-485 at all because your wife is only a PR and your priority date is not current. If you tried to do something under CAA, then I don't know how it changes it... but it does appear you had an interview.

You don't have any options to gain legal status in the US at this point. You can go home and your wife can file for a spousal visa for you when she gets her citizenship. You cannot go home and come back as a canadian visitor, and try to adjust again. First, entering with clear immigrant intent on a tourist visa is illegal. Secondly, I doubt they would let you in because you have a denied I-485 which shows clear immigrant intent. You might also have a ban. Since you do not have a legal entry, there is no way to adjust status from within the US. You can try to appeal the decision and get more proof of your legal entry, or you can go home and your wife can file a spousal visa when she gets her citizenship.

[Kathryn41 3,205]

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?

YES! YES and in case you missed it YES - that is blatant visa fraud and misrepresentation and will result in a life time ban from ever entering the US!

It is visa fraud to use a visa meant for one purpose - a visit - with the full intention of doing something totally different - applying to become a permanent resident - as a means to bypass the legal process. Lying about that intent is misrepresentation and results in the life time ban. There are appropriate visas for that intent and those are the visas you need to use.

So, right now you are restricted to a sponsored spousal visa from outside of the US, unless you are able to satisfy their request for proof, in which case you can then re-apply for the AOS.

Without that proof, the only option USCIS seems to allow is for you to leave the US and your wife to begin the process all over again. Because there is a waiting period before a visa number is available for spouses of Permanent Residents you have to wait outside of the US either until that number is available or your wife becomes a US citizen. Once she becomes a citizen she would notify USCIS of her change of status in reference to the I-130 petition (it doesn't happen automatically) and a visa number then becomes available automatically and the processing of a CR-1 visa will start.

Something you need to consider - if you have been in the US and out of status for more than 180 days (and you will need to determine when they start counting your out of status days - from the date of the denial or from the date your status expired) you will have an automatic 3 year ban that will need to be overcome by your wife filing a hardship waiver. If you have been out of status for more than a year, then the ban is for 10 years.

If you leave the US and are allowed to re-enter the US (and that is a big IF under the circumstances) and say you are coming for two weeks to visit your daughter - then that is all you should do - visit for 2 weeks and then leave. In your particular circumstances anything else would be immediately perceived as visa fraud, you would be detained (and that detention might be lengthy), have an immigration hearing, be deported and banned for life.

Edited August 6, 2011 by Kathryn41

[David49 0]

I mentioned in my first post that my wife filed an I-30 and it was approved. That was the basis for my AOS application. Does the current denial make the approved I-30 no longer valid? or can the approved I-30 be used again to apply for an immigrant visa from Canada if I leave and go back to Canada? It may be a moot point since as I said my wife will be a USC in 3-4 months. What is the application I need to file from outside the US if our approved I-30 is still valid?

[Harpa Timsah 13,258]

Having an approved I-130 does not make your priority date current, but it sounds like it is current. They are two separate things.

You will have to request that the I-130 go the the NVC (National Visa Center) for consular visa processing.

I also just reread your first post and you will have a ban on your head for overstaying as well. You will have to file a waiver for your ban after your visa is denied.

Edited August 6, 2011 by Harpa Timsah

[David49 0]

How do I request the the I-30 go to the NVC?

[David49 0]

I remembered receiving the DS-3032, but we didn't act on it because I decided to go with AOS. I just called NVC and used my case receipt number with their automated system. The response gave me the NVC case number, and also said my case has been returned to CIS. The notice date on the approved I-130 is a few days short of a year old at this time. Does this mean the approved I-130 is no longer valid/can't be used for a visa application? Does this mean my wife has to submit another I-130 application? In this case it makes sense to wait until she's a USC no?

Edited August 6, 2011 by David49