AOS after coming thru Canadian Border

[usmalu 0]

Hi All,

Even though, I have been a member for a long time, never posted any and regret that. Following is my situation;

Married to a naturalized US citizen for 6 years and have a 31/2 year old child and another on the way. A little history; I entered through canada in 2001 before 9/11 happened, to attend an interview with canadian consulate for canadian residency visa. Because of 911, I got denied the canadian residency visa as per the canadian interview officer. So I decided to stay back. I am not a canadian national and came to canada on a tourist visa. When I was entering thru the border to the USA, all of us gave the CBP officer passports and my interview letter and the officer said the computers are shut down and no way they can check anything. And he told us "you can go". So I entered the USA. Am I inspected and admitted? If so, Can I adjust my status here? How can I prove that?

I am not eligible for 245(I).

Please give me some advises and links to check on or similar cases or any laws. Thanks a lot.

Edited December 2, 2010 by usmalu

[juliava 80]

What country do you come from and what kind of visa did you use to enter US?

There are some missing pieces in your puzzle...

[usmalu 0]

What country do you come from and what kind of visa did you use to enter US?

There are some missing pieces in your puzzle...

I am an Indian and didn't have any US visa on my passport. Thanks

[VanessaTony 3,567]

Do you have ANY visa or anything in your passport (like an I-94)?

As an Indian you would have required a visa to enter the US. Unless you have proof that you didn't lie and/or break the rules you need to leave. If they have no proof of your entry you might NOT get a ban.

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are enquiring about adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for **

Edited December 2, 2010 by Vanessa&Tony

[usmalu 0]

Do you have ANY visa or anything in your passport (like an I-94)?

As an Indian you would have required a visa to enter the US. Unless you have proof that you didn't lie and/or break the rules you need to leave. If they have no proof of your entry you might NOT get a ban.

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are enquiring about adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for **

I only had a canadian visitor's visa. I know I am required to get a visa but the border officer let me in. I didn't understand what you mean by "if they have no proof of your entry you might NOT get a ban". Please explain. thanks

[zooch76 9]

Are you sure you aren't forgetting anything? I find it VERY hard to believe that the CBP officer let you into the country without a visa because the computers are down. They have backup systems/manuals/books they can check to see what countries require visas and which do not. Especially post 9/11, they would make you wait until their computers were back up instead of just letting you through without checking anything.

[VanessaTony 3,567]

I only had a canadian visitor's visa. I know I am required to get a visa but the border officer let me in. I didn't understand what you mean by "if they have no proof of your entry you might NOT get a ban". Please explain. thanks

Okay. You entered without a visa. Illegal.

You have no proof of entry so they will assume illegal entry. Can't adjust from that. You can't adjust without proof of entry.

You have overstayed. When and if you leave the US (which it sounds like you'll have to do as without a visa you can't adjust) you will get a ban depending on how long you've been out. You stated Sept 11 had just happened so it's been over a year so 10 year ban. Which can be overcome with a hardship waiver.

As there is no proof (so you say) of your entry they might not know how long you overstayed so you might not get a ban. Highly unlikely but possible if you can "sneak out".

I find it highly unlikely, as they will, that you were just "waved through". You might have them claim that you said you were a USC (illegal and lifetime ban). Who knows. I just highly doubt they will ever let you AOS while in the USA.

[usmalu 0]

Are you sure you aren't forgetting anything? I find it VERY hard to believe that the CBP officer let you into the country without a visa because the computers are down. They have backup systems/manuals/books they can check to see what countries require visas and which do not. Especially post 9/11, they would make you wait until their computers were back up instead of just letting you through without checking anything.

this happened before 911 and my fellow passengers also handed the officer their passports and he gave back to them saying the computers are down. Its weird, but true. The question is, can I still be adjusted here? How can I prove that? thanks

[usmalu 0]

Okay. You entered without a visa. Illegal.

You have no proof of entry so they will assume illegal entry. Can't adjust from that. You can't adjust without proof of entry.

You have overstayed. When and if you leave the US (which it sounds like you'll have to do as without a visa you can't adjust) you will get a ban depending on how long you've been out. You stated Sept 11 had just happened so it's been over a year so 10 year ban. Which can be overcome with a hardship waiver.

As there is no proof (so you say) of your entry they might not know how long you overstayed so you might not get a ban. Highly unlikely but possible if you can "sneak out".

I find it highly unlikely, as they will, that you were just "waved through". You might have them claim that you said you were a USC (illegal and lifetime ban). Who knows. I just highly doubt they will ever let you AOS while in the USA.

NEVER claimed a USC. thanks

[VanessaTony 3,567]

NEVER claimed a USC. thanks

I didn't say you did. I said they might THINK you did seeing you have no visa and no proof of entry. A USC wouldn't need that.

There is no way for you to adjust that I can see. I think you need to see an immigration attorney and see what they say.

[JimVaPhuong 4,863]

Why would the Canadian government send you to a Canadian consulate in the US to apply for a Canadian residency visa when you were already in Canada, and they knew you didn't have a visa to enter the US? The Canadian government knows darn well they can't give you permission to enter the US. Even with the "computers down", why would a CBP officer waive you through without either a Canadian passport or Canadian Permanent Resident card?

There are aspects of your story that just don't wash.

In order to adjust status you will need proof you entered the US legally. You don't have any such proof, and apparently neither does the US government. Without this proof, they will assume you crossed the border without inspection.

You will definitely receive a ban when you leave the US. Your entry may not have been recorded, but your exit will be. They may not know at the time you leave that you've overstayed by a year, but they'll definitely know when you go to a US consulate to apply for an IR1 visa. Your marriage certificate establishes your presence in the US on the day you were married. That alone is enough to establish you were unlawfully present for more than a year. There may be loads of other evidence, as well. Ever have a bank account in the US? Ever rent an apartment? Ever file an insurance claim? Ever have a job? Ever have an encounter with a law enforcement officer? The list goes on and on. It's practically impossible to live completely under the radar.

If you want to get a green card then you'll need to leave the US. Your spouse can file an I-130 on your behalf. You'll need an I-601 waiver to get a visa.

[usmalu 0]

Why would the Canadian government send you to a Canadian consulate in the US to apply for a Canadian residency visa when you were already in Canada, and they knew you didn't have a visa to enter the US? The Canadian government knows darn well they can't give you permission to enter the US. Even with the "computers down", why would a CBP officer waive you through without either a Canadian passport or Canadian Permanent Resident card?

There are aspects of your story that just don't wash.

In order to adjust status you will need proof you entered the US legally. You don't have any such proof, and apparently neither does the US government. Without this proof, they will assume you crossed the border without inspection.

You will definitely receive a ban when you leave the US. Your entry may not have been recorded, but your exit will be. They may not know at the time you leave that you've overstayed by a year, but they'll definitely know when you go to a US consulate to apply for an IR1 visa. Your marriage certificate establishes your presence in the US on the day you were married. That alone is enough to establish you were unlawfully present for more than a year. There may be loads of other evidence, as well. Ever have a bank account in the US? Ever rent an apartment? Ever file an insurance claim? Ever have a job? Ever have an encounter with a law enforcement officer? The list goes on and on. It's practically impossible to live completely under the radar.

If you want to get a green card then you'll need to leave the US. Your spouse can file an I-130 on your behalf. You'll need an I-601 waiver to get a visa.

For a canadian residency, the appplicant must be outside of Canada, so I chose to come to USA.

Thanks.

[Kathryn41 3,205]

Usmalu is correct. If you start the processing of Canadian Residency requests outside of Canada then it has to be finished outside of Canada. If it is started from within Canada then it can be concluded from within Canada although the applicant needs to leave Canada and re-enter to activate the status. The application processing center for the US is in Buffalo, NY.

You did not enter the US illegally, Usmalu. You were inspected at a Canadian/US border and allowed to enter. Do you remember the exact border crossing, date and time of crossing? Do you still have a copy of your interview letter for the Canadian Consulate? It is my belief that yes, you can apply to adjust status as you entered legally (were allowed in by the guard) and when the Canadian residency was denied, you then decided to stay in the US. You did not enter with the intent of staying. You were not married to a US citizen at the time and it appears you were in the US without status for a number of years before you got married as well.

Things were more lax on the Canadian - US border just prior to 9/11 and yes, they did change after 9/11 so I can definitely see the border officer waving you through even though their computers were down, since you had a valid reason to be in the US, presented valid identification and at that time were not intending on staying. I would say you do qualify to file the I-485. You will need to gather whatever evidence you can to prove your legal entry - the letter from the Canadian Consulate would be useful for that, and if you are still in touch with any of the others who entered with you at the same time, notarized statements from them explaining that the guard allowed you all to enter even though the computers were down. Did he stamp your passport at all? Being able to give a precise date, time and place of entry will allow them to check back in their records and they may see that their computers were down on such and such a date, verifying your statement.

Edited December 5, 2010 by Kathryn41

[usmalu 0]

Usmalu is correct. If you start the processing of Canadian Residency requests outside of Canada then it has to be finished outside of Canada. If it is started from within Canada then it can be concluded from within Canada although the applicant needs to leave Canada and re-enter to activate the status. The application processing center for the US is in Buffalo, NY.

You did not enter the US illegally, Usmalu. You were inspected at a Canadian/US border and allowed to enter. Do you remember the exact border crossing, date and time of crossing? Do you still have a copy of your interview letter for the Canadian Consulate? It is my belief that yes, you can apply to adjust status as you entered legally (were allowed in by the guard) and when the Canadian residency was denied, you then decided to stay in the US. You did not enter with the intent of staying. You were not married to a US citizen at the time and it appears you were in the US without status for a number of years before you got married as well.

Things were more lax on the Canadian - US border just prior to 9/11 and yes, they did change after 9/11 so I can definitely see the border officer waving you through even though their computers were down, since you had a valid reason to be in the US, presented valid identification and at that time were not intending on staying. I would say you do qualify to file the I-485. You will need to gather whatever evidence you can to prove your legal entry - the letter from the Canadian Consulate would be useful for that, and if you are still in touch with any of the others who entered with you at the same time, notarized statements from them explaining that the guard allowed you all to enter even though the computers were down. Did he stamp your passport at all? Being able to give a precise date, time and place of entry will allow them to check back in their records and they may see that their computers were down on such and such a date, verifying your statement.

Thanks for info. Unfortunately, I do not have any contact with co-passengers. No stamping at all. But I have all the docs showing my canadian application and all the dates and timing of crossing. Any more you can think of, please reply. Thanks a lot.

[juliava 80]

Still it doesn't make sense.

As far as I remember from the official immigration to Canada website, you may apply for Canadian residency from ANY country in the world, but you are required to have LEGAL presence in that country while they process your application. For applicants from inside US, it is required to have a legal presence for minimum 1 year. Did you have that?How did you prove it?