Not Sure What to Do and the Best Course of Action

[c3847 0]

My wife and I got married in August, 2010. She is a Canadian and I am a U.S. citizen. I will try to explain as concisely and to the point as possible.

From about 2004 to 2006, my wife worked in the U.S. under the TN Work Visa in the U.S.

2007 - She quit her job and moved with me to another state, which meant she was on her visitor visa now.

2007 to 2008 - She went in and out of the U.S. several times to travel.

2010 - August - we got married.

2010 - October

She went out of the U.S. to attend her grandmother's funereal.

Upon returning to the U.S. at the end of October through San Francisco airport, she was informed by immigration that she had previously "overstayed" since she stayed for over 6 months without leaving. She is a Canadian and that means she can stay up to 6 months at a time (the visa is usually granted upon entry). We did not know that until immigration stopped her. They advised her to withdraw her entry to avoid being denied entry, which she did. They said she should get either a visa waiver or perhaps a different visa to re-enter.

My wife went back to Canada after that.

2010 - Nov.

Upon reading documents at USCIS.gov, I applied for I-130 for her in November.

2010 - Dec.

In December 2010, she went through port of entry between British Columbia and Washington. She was going to ask the border officer if she could visit me. She handed the border officer both her Canadian passport and her enhanced driver license (which is used for border-crossing by land. I have a Passport card for the same purpose). The border officer looked at the passport and license, swiped one of them (not sure which one), and just waved her to cross border, so she did.

In other words, she crossed the border legally and with inspection and of course we have been spending time together since.

A bit more background -

We filed the I-130 application with her Canadian address. I have every reason to think that the I-130 will be approved soon. We have been together for 19 years with records and pictures to prove it, so I would think that I-130 would be approved as there is no question about the marriage.

Here are the questions I am hoping the knowledgeable folks can help me with.

- Should I go ahead and apply for adjustment of status for her? It seems like it would be faster by quite a bit based on the stats I can find.

- If I am going to apply for adjustment of status for her, should I wait until I-130 is approved?

- Does it matter that I-130 is currently in process?

- If her adjustment of status is denied, can we still go through the route of the standard application process (the I-130 I already sent in with her Canadian address as her residence)?

I am sure that everyone here knows the gut-wrenching process and agony a lot of these things cause so I appreciate feedback from your experience and advice on the best approach. It really isn't that complicated but it is hard to know the most appropriate course of action to take care of her status for good in a relatively timely manner.

Thank you.

Edited March 20, 2011 by c3847

[c3847 0]

In case it wasn't clear - We have been together for 19 years and finally got married last year. Probably has very little bearing to my questions, but just wanted to clarify.

Edited March 20, 2011 by c3847

[ValerieA 350]

Although I did not have a previous overstay, I did easily AOS from a B-2 visa (granted at the border, also) while my husband had an I-130 filed for me (and an I-129f, since the K3 was a valid option at that time). Due to personal reasons, we switched to AOS after my allowed time in the US was up. The only question I got on it at the interview was "what visa did you enter on?" I answered truthfully, and that was the end of that. Overall, much faster than a CR-1, and yes, if AOS fails, she can always return to Canada and you can pursue the CR-1 at that time; although then you will need to file a waiver, also, which is more time-consuming and expensive.

We filed after our I-130 was approved, but I have heard it is not a problem to file while it is still in process. Just make sure you include a copy of your NOA1 with your AOS package, if you do decide to go that route.

Good luck, whichever path you choose!

[Brother Hesekiel 2,236]

I did not detect your wife's overstay in your initial post. Yet, why would you even want to pay an additional $1,070.00 for AOS and risk problems if your wife can file a CR-1 visa and keep visiting you while it's being processed? She can now stay with you in the US 'til the I-130 is being approved, then return to Canada, get the CR-1 application going, come back until she has her interview, attend it, and then enter the US again as a Green Card holder. She could work immediately and there would be no AOS process and costs, no waiting for months. Wouldn't that be the better option?

[ValerieA 350]

I did not detect your wife's overstay in your initial post. Yet, why would you even want to pay an additional $1,070.00 for AOS and risk problems if your wife can file a CR-1 visa and keep visiting you while it's being processed? She can now stay with you in the US 'til the I-130 is being approved, then return to Canada, get the CR-1 application going, come back until she has her interview, attend it, and then enter the US again as a Green Card holder. She could work immediately and there would be no AOS process and costs, no waiting for months. Wouldn't that be the better option?

I have much respect for JustBob, he has lots of good, sound advice. I will just point out a couple of things, to play devil's advocate:

1. You will have additional fees of $330 (DS-230) + $74 surcharge at the NVC stage (can't remember if you have to also pay the $88 AOS review fee, also, I believe so).

2. You do not mention where in Canada your wife lives. CR-1 interviews are done in Montreal, so unless you live close, you are looking at some pretty significant travel costs for your interview - especially if you live in Western Canada.

3. There is no guarantee your wife will be allowed back into the US again until she has her CR-1 visa. Next time she crosses, they may decide to take issue with her previous overstay again.

4. Montreal is super backed up, and it is taking 5 months or more from the start of the NVC stage to interview day at Montreal.

However, if you start the AOS process, she can not cross back into Canada until she has her Green Card (AOS, start to finish, took me just over 3 months). Also, she is not supposed to work during that time.

OK, 4 things, not just a couple. Whoops.

[c3847 0]

ValerieA and Just Bob, thank you for your thoughtful replies. Allow me to clarify a few things.

- We know and found out that she previously overstayed because the immigration officer told her so in San Francisco airport and advised her to withdraw entry so they wouldn't have to deny her entry technically due to overstay, which would have been a more serious record in her travel history (that's what they told her). However, there is no question that they made a note that they explained to her about her overstay at that time. They did tell her that she should get a visa or waiver to visit me due to her previous overstay, and that it would also be up to the port of entry if she wanted to re-enter. As mentioned previously, we were fortunate at port of entry and 3 months ago she entered legally and with inspection. Our plan was exactly as what Just Bob wrote, but there is always the risk of not being able to enter again due to the previous overstay. The more I think about it the more worried I am about the risk of being denied re-entry to visit me while waiting for CR-1.

- We are on the west coast. As lovely as Montreal is (beautiful city - been there), the cost of going to Montreal alone is going to overshadow any additional cost of AoS.

- AoS is now being seriously considered because

1) Comparing the timelines, AoS is far shorter than CR-1, even though CR-1 is already in process. AoS is still going to end up being faster by several months. As pointed out by ValerieA, the wait time from the start of NVC to interview by itself is already long, and we are still waiting for NOA2. (I didn't realize such significance of timeline until now.)

2) I am concerned that there is no guarantee they will let her enter again if they take issue with her previous overstay. It will all be up to the officer at port of entry. We may run out of luck and not meet such a nice officer next time. My understanding is that if you end up with an active denial of entry, it can easily cause problems.

3) She would not be working while we wait for AoS. She also wouldn't be crossing back into Canada while waiting for AoS.

We were not planning on filing for AoS initially, which is why I sent in the I-130 petition with her Canadian address and we were planning on going through the standard process. However, the more I understand AoS, the more it appears it is something we should seriously consider due to timeline, risk of re-entry, and other considerations.

Are there any downsides to trying the AoS route? That's the thing - I can't seem to come up with any downside to it but I want to make sure I am not missing anything.

Thank you again.

Edited March 20, 2011 by c3847

[c3847 0]

Please allow me to bump this topic and ask this... Thank you.

Are there any downsides to trying the AoS route in our situation? It just seems there isn't any, and I would very much like to be sure I am not missing any possible downside that I should be aware of.

[Myopia 93]

Please allow me to bump this topic and ask this... Thank you.

Are there any downsides to trying the AoS route in our situation? It just seems there isn't any, and I would very much like to be sure I am not missing any possible downside that I should be aware of.

You could be denied. That's about it.

You could be denied at the K1/CR1 stage too.

[Harpa Timsah 13,258]

One downside is that if she does have a ban on her head from the previous overstay then it is still in effect, even though she is in the US now. If she has the ban then she will not be eligible for a GC and will have to file waivers to try to overcome the ban. The same will be for normal I-130 process.

[Krikit 1,164]

Sounds like you're better off adjusting status instead of going the CR-1 route. Canadians are treated as "Duration of Status" and don't start accumulating unlawful presence until the ruling.

Link

Edited to add.... please make sure you consult with a qualified attorney before making any decision.

Edited March 21, 2011 by Krikit

[Myopia 93]

One downside is that if she does have a ban on her head from the previous overstay then it is still in effect, even though she is in the US now. If she has the ban then she will not be eligible for a GC and will have to file waivers to try to overcome the ban. The same will be for normal I-130 process.

I was thinking the same thing but wouldnt she be able to file the I-601 from within the US if she was approved?

[Harpa Timsah 13,258]

I was thinking the same thing but wouldnt she be able to file the I-601 from within the US if she was approved?

Yes, I think so.