My Wife (Canadian Citizen)'s Situation Help & Advice Please!

[s4837 0]

I am an American citizen myself. My wife is a Canadian citizen.

After searching high & low for helpful information, I am still utterly confused. Please allow me to describe the situation as clearly as I can. Your help on the exact steps to take would be greatly appreciated.

My wife and I have known each other for about 20 years now since we were teenagers. She is a Canadian citizen who studied in grad school in the U.S. with a student visa, and then worked for a couple of different companies in the U.S. through her TN visa. These are all pretty straightforward.

In January, 2008, she moved from another state to be with me in Oregon and left her job and let her TN visa expire. In both 2008 and 2009, she went to Panama at least twice, each time for just a few days. At the end of 2009, she went to Asia with me briefly for a few days and we returned together. When we went through immigration in Portland, Oregon, we told immigration we were engaged and they didn't even blink and just said okay, and let us through. Throughout all this time, she simply traveled with her Canadian passport.

In August, 2010, we got married in Oregon.

In early October, 2010, she had to attend a funeral in Taiwan for about two weeks, so she went there. Since she has simply been traveling with her Canadian passport, we didn't think much of it. However, when she returned through San Francisco, the custom folks stopped her and explained to her that because she overstayed last time (over 180 days, which we stupidly were not aware of the rule), they could not let her come in to the country. They also told her that since she is now married to me, she should come in with a different visa.

They gave her the option of "withdraw entry" rather than "denied entry", and emphasized to her over and over that doing so means that even though it would be on the record, it would not have any negative impact on any applications she may submit in the future. (I had to look it up, there really is such a thing as "withdraw entry".)

The immigration officer also told her that since she overstayed last time, she needs to get a "wavier" if she wants to enter. They gave her the option of going back to Canada or Taiwan (or wherever, really), and she decided that she would go to Taiwan for now as she can have someone there to pick her up right away there.

Amazingly, they let her call me multiple times throughout from the immigration office area. The immigration officer also got on the phone and reassured me repeatedly there is "no penalty" and not to worry (Apparently though, as it turned out, I do need to worry since they didn't let her enter.).

On a side note, I can't stand the thought of not being with her even for just a few days. So sad.

The question is then, what should we do?

There are two goals here:

• Short term: We would like her to be able to come in the country ASAP so we can be together again instead of several months from now.
  
• Long term: We would like for her to get a green card and have everything permanently resolved.
  

The only thing I know for sure that we need to do for her immediately is:

She needs to get a waiver for her previous overstay (why they didn't just tell her that when she traveled in and out during 08 and 09 is beyond me).

I have lots of questions:

• What if she is not granted a waiver? Then what do we do? They made it sound so easy for Canadians, is it true?
  
• What is the next step to take care of her status permanently? With K3, CR-1/2, and other visas, it is very confusing and I am not sure exactly what to do, and where to do it (in terms of location to get a speedy resolution).
  
• Surely this happens a lot to Canadian citizens in the U.S. Is there a proven way that is the most sensible, speedy, and correct approach to take care of her status.
  

I would have been happy to rent an apartment in Canada and just spend time with her there, except we JUST bought a really nice house as part of our preparation for getting married earlier this year.

Please, I am desperate and really need to know exactly what to do. Thank you.

I plan to update this thread as things progress (hopefully quickly) to help others whom may be covered be similar situations, but for now, I need actionable advice on exactly what to do. Thank you...

Edited October 23, 2010 by s4837

[amykathleen2005 441]

You need to file for a CR-1 to bring her over on a spousal visa, this will take many many months, but it is the only option you really have as she was acting as though she was a permanent resident and overstayed.

[s4837 0]

You need to file for a CR-1 to bring her over on a spousal visa, this will take many many months, but it is the only option you really have as she was acting as though she was a permanent resident and overstayed.

I would understand that as a long term and proper solution, which we absolutely need to do and will definitely do so.

In the mean time, isn't there a way for her to visit, not for an extended period but rather so we can still see each other from time to time while we wait for CR-1 to be processed?

[s4837 0]

You need to file for a CR-1 to bring her over on a spousal visa, this will take many many months, but it is the only option you really have as she was acting as though she was a permanent resident and overstayed.

* My previous reply was submitted accidentally and I couldn't edit it, so please allow me to complete my reply...

I would understand that as a long term and proper solution, which we absolutely need to do and will definitely do so and get it started ASAP.

In the mean time, isn't there a way for her to visit, not for an extended period but rather so we can still see each other from time to time while we wait for CR-1 to be processed? From what I could find in the last couple of days, this seems to be a common issue run into by Canadians due to the common use of TN visa for Canadians and the ease of travel in both directions. Again, from what I read on the web, Canadians who are in a similar boat still visit their spouses while waiting, just that I couldn't find any details on the proper procedure - unless now we are being overly cautious with everything. We want to do it the right way and still be able to see each other...

[amykathleen2005 441]

I doubt that she would be able to visit you in the US while the visa is processing because she has the ban from her overstay. You will overcome the ban with a waiver I believe filed after the interview at the consulate (which is effectively one of the last steps). You can still go to Canada and visit her or you can meet up in a third country.

[s4837 0]

I doubt that she would be able to visit you in the US while the visa is processing because she has the ban from her overstay. You will overcome the ban with a waiver I believe filed after the interview at the consulate (which is effectively one of the last steps). You can still go to Canada and visit her or you can meet up in a third country.

The immigration officer specifically told her that there was no penalty and no ban, and she was allowed to withdraw her application of admission. Here is where I am confused - It seems there is a significant difference between being "denied entry" and "withdraw entry".

She was given an I-275 "Withdraw of Application for Admission" and that she will need to show ties to Canada (which she does have ties) in the future. The form itself is detailed here: http://www.naftatnlawyer.com/ifm-172-withdrawal-of-applica/

He did also say that she should enter with a different type of visa rather than just with the passport.

This is like splitting hair and yet a very important difference to understand and proceed exactly correctly; otherwise, it could go really wrong unnecessarily.

As for your suggestion, seeing each other in Canada is one of the options we will consider, just that due to my work, that will take several months, if not longer, to arrange on that alone.

Edited October 23, 2010 by s4837

[amykathleen2005 441]

Just because she was not denied does not mean that she does not have a ban. That is why she needs the waiver.

[s4837 0]

Just because she was not denied does not mean that she does not have a ban. That is why she needs the waiver.

amykathleen2005, I want to thank you for your replies.

I will need to talk to her again before I have anything more at this point and will update accordingly. If there are other Canadians who hang out here with similar experience and can share it, it would be most appreciated.

[s4837 0]

amykathleen2005, I want to thank you for your replies <--- in case that was not clear, I am very grateful and that was not a sarcastic comment - I see that I quoted you above and hopefully that didn't come across the wrong way.

Oh, the immigration officer told her that he has a wife from a foreign country and made the exact same mistake before becoming an immigration officer, and had to straighten things out himself at that point too. He appeared to be sympathetic and trying to be helpful. It was nice of him and hopefully indeed that was the case.

[Hugglebuggles 60]

Unfortunately Canadian citizens are not exempt from US immigration laws. We cannot live in the US without a proper visa or residency status. When your wife let her TN visa expire in February of 2008 and did not leave the US shortly after, she became out of status and thus has been living in the US for almost 3 years illegally. The fact she was not "caught" sooner when she left then reentered the US is really amazing. I would say it's lucky, but given the situation you have found yourself in now, lucky definitely is not the word for it.

As you are already married, the only course of action to bring her here as your spouse would be to file for a CR-1 visa. Unfortunately this comes with a rather long processing period of almost 1 year. I understand your desire to be with her ASAP, but these things take time and there really is no way around it.

Many of us visited our American fiance(e)s and spouses in the US while going through the immigration process. There is no rule saying she cannot do this, unless she was issued a ban when she attempted to enter the US. Since you said she was told she would need a waiver to reenter, it sounds like she was issued a ban. Is there anything in her passport, or was she given anything at the POE that indicates any specifics? An overstay of over 1 year is suposed to come with a 10 year ban. As far as the waiver process, I really have no idea how that works.

I am sorry that you are now separated from your wife and that you are now in for a long journey to be together again, but I'm not really sure what you were both thinking? Did you think she could just freely live in the US without a proper visa or Green Card? Because that is a fairly common misconception when it comes to Canadian citizens, and a very costly one. Hopefully someone with solid advice will stop in and help. I wish you luck!

[s4837 0]

Sigh... Indeed, it sounds pessimistic.

I talked to her very briefly a few minutes ago during her layover. She found my overwhelming concern a bit strange in the sense that she said the immigration officer told her "Everything is fine, just get your ducks in a row." Then, he shook her hands, and said, "See you when you get your visa."

I also got some clarification - She said the immigration officer told her she would need a waiver if she wants to get a B1/B2 visa, but not for K3 or CR-1. Obviously, that could take a long time too.

At this point, I am even concerned that the immigration officer might be mistaken. She said he did the paperwork meticulously, including her travel in-and-out of U.S. a couple of times since 2008.

Edited October 23, 2010 by s4837

[Armenia 18]

Sigh... Indeed, it sounds pessimistic.

I talked to her very briefly a few minutes ago during her layover. She found my overwhelming concern a bit strange in the sense that she said the immigration officer told her "Everything is fine, just get your ducks in a row." Then, he shook her hands, and said, "See you when you get your visa."

I also got some clarification - She said the immigration officer told her she would need a waiver if she wants to get a B1/B2 visa, but not for K3 or CR-1. Obviously, that could take a long time too.

At this point, I am even concerned that the immigration officer might be mistaken. She said he did the paperwork meticulously, including her travel in-and-out of U.S. a couple of times since 2008.

Your wife had been able to get in and out of the US on just her passport because, being a Canadian, she can do so on the Visa Waiver Program. This program, though, still has limitations. It's only good for 90 days (http://travel.state....t_1990.html#vwp). Your wife just got lucky these past two years that customs/immigration officers did not dig deeper into her records.

As others have said, if you want her in the USA permanently, then apply for the CR1 visa.

As to her being able to visit you in the USA, she probably will not be able to do so on the Visa Waiver Program again. She could try getting a B2 (tourist) visa but there's no guarantee that she will be granted one. She's going to need a waiver for that as there's a question on page 2 of Form DS-156 (non-immigrant visa application) asking "Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?".

[Armenia 18]

Your wife had been able to get in and out of the US on just her passport because, being a Canadian, she can do so on the Visa Waiver Program. This program, though, still has limitations. It's only good for 90 days (http://travel.state....t_1990.html#vwp). Your wife just got lucky these past two years that customs/immigration officers did not dig deeper into her records.

As others have said, if you want her in the USA permanently, then apply for the CR1 visa.

As to her being able to visit you in the USA, she probably will not be able to do so on the Visa Waiver Program again. She could try getting a B2 (tourist) visa but there's no guarantee that she will be granted one. She's going to need a waiver for that as there's a question on page 2 of Form DS-156 (non-immigrant visa application) asking "Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?".

Oopppss, my bad. It's not the VWP that's applicable to Canadian citizens. It's the Western Hemisphere Travel Initiative (WHTI). http://www.travel.st...hout_1260.html. I don't know if there is a limit on the number of days you can stay.

[Krikit 1,164]

In order to properly answer your questions, do you have exact dates on the travel outside the US? This will make a difference on whether your wife is subject to the 3 year bar, the 10 year bar, or no bar at all. In fact, I have read a legal brief where the time doesn't start clicking for Canadians until they've actually been processed by ICE and had their day in court. It was posted on VJ a couple of years ago but I apologize for not saving the link. I would recommend a consult with a good immigration attorney.

This site specializes in waivers and has an attorney (Laurel Scott) who does weekly chats: Immigrate2US

You can also read the Waivers section on VJ: Link

This site is also helpful: CBP FAQ's

Welcome to VJ, and good luck.

[canadian_wife 1,822]

I was denied entry, it will be EXCEPTIONALLY more difficult for her to enter the US now - honestly, her short term plan will be to apply for a B/2 with a waiver showing how she MUST enter the US - and to be with you is not a sufficient answer. Even then her stay in the US (due to the overstay) will be extremely limited.

I'm sorry for your situation, I know how it stinks. However, you must start the spousal visa process as soon as you can as it appears that is your quickest way to get her to the US

Good luck