Married on Visitor Visa

[evergreen 0]

My husband (then my boyfriend) came to the U.S. from Canada on a visitor visa Even though he had a valid Canadian passport, and even though Canadian citizens are not supposed to need a visa with a valid passport, he was issued a "visitor visa" at the border, requiring him to return to Canada in three weeks. This was because the border agents did not feel that he had sufficient "ties to Canada". He had with him his lease, utility receipts, and proof of income in Canada, but apparently not enough evidence of his "ties" for these particular border agents.

During that three weeks (the period approved by the border agents), we called USCIS, and were told that we could apply online for an extension of the visitor visa, which we did. He stayed in the U.S. awaiting approval of the extension, but returned to Canada before the extension was approved or denied. Overall, he stayed in the U.S. for six months. Longer than the original three week visitor visa, but the usual legal limit for a Canadian visitor to the U.S.

While he was in the U.S., a few months after he arrived, we got married. He did not come to the U.S. with any intent to marry me while on a visitor visa, but we later decided (2 1/2 months after he arrived) to get married.

Also, as I stated, while still waiting for the extension of his visitor visa, despite our marriage, he returned to Canada on his own at the six month mark.

We filed an I-130 (CR1) petition, and an I-129F (K3) petition.

We expect to have an interview at the end of September or early October for our K3.

Will the circumstances described above cause any problems at the interview (at the consulate) or POE (border)?

Thanks!

Edited September 9, 2006 by evergreen

[Kez/JWolf 6]

You could have done AOS after you got married and before he returned to canada.... that way he could have remained in the US with you....

Now he is back in canada you are doing the best route I am sure you will get asked about why he overstayed his visa.... if it will cause you any problems I can not say... that will depend on the interviewing officer....

Good Luck

Kezzie

[evergreen 0]

But is it considered "overstaying" when he applied for an extension of the visa through USCIS BEFORE it expired? So that the entire time he was here in the U.S. AFTER it expired, the status of the visa was then pending due to the extension application?

Yes, when I contacted the USCIS after our marriage, an operator/representative told us that he must return to Canada and we must file an I130. Unfortunately, this was before I was on the visajourney forum, and we believed this operator was correct - she stated that there were NO other options. Had we checked this forum, or called an attorney, we would have discovered that he could stay in the U.S. if we filed an Adjustment of Status application! However, by the time we found this out, he had already returned to Canada.

Obviously we weren't intending to use the visitor visa to avoid the usual processes, because we hadn't intended on getting married, didn't know anything about the immigration process at the time we married nor afterwards (or else he would have remained in the U.S. and applied for AOS) and did not benefit in any way from marrying in the U.S. while he was on the visitor visa.

This makes sense to me, but I'm worried that the over zealous border patrol agents may latch onto this and use it as a reason to deny his visa, even though so far we have made every attempt to do everything appropriately and legally.

[evergreen 0]

But is it considered "overstaying" when he applied for an extension of the initial visitor visa through USCIS BEFORE it expired?

So that the entire time he was here in the U.S. AFTER it expired, the status of the visa was then pending due to the extension application?

When I contacted the USCIS after our marriage, an operator/representative told us that he must return to Canada and we must file an I130. Unfortunately, this was before I was on the visajourney forum, and we believed this operator was correct - she stated that there were NO other options. Had we checked this forum, or called an attorney, we would have discovered that he could stay in the U.S. if we filed an Adjustment of Status application! However, by the time we found this out, he had already returned to Canada.

Obviously we weren't intending to use the visitor visa to avoid the usual processes, because we hadn't intended on getting married, didn't know anything about the immigration process at the time we married nor afterwards (or else he would have remained in the U.S. and applied for AOS) and did not benefit in any way from marrying in the U.S. while he was on the visitor visa.

This makes sense to me, but I'm worried that the over zealous border patrol agents may latch onto this and use it as a reason to deny his visa, even though so far we have made every attempt to do everything appropriately and legally.

[evergreen 0]

[immigration and Nationality Act, 8 U.S.C. 1001, et. seq, as amended:

(B) ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(B)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

(II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.

(III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

(IV) Battered women and children.-Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if "violation of the terms of the alien's nonimmigrant visa" were substituted for "unlawful entry into the United States" in subclause (III) of that paragraph.

(iv) Tolling for good cause.-In the case of an alien who-

(I) has been lawfully admitted or paroled into the United States,

(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and

(III) has not been employed without authorization in the United States before or during the pendency of such application,the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

Edited September 9, 2006 by evergreen

[evergreen 0]

Also, on the I-212 Waiver Application, it states that you are able to reapply for admission WITHOUT filing the I-212 if you voluntarily departed from the U.S. without expense to the U.S. Government and without an order of removal or deportation having been entered.

[meauxna 15]

This makes sense to me, but I'm worried that the over zealous border patrol agents may latch onto this and use it as a reason to deny his visa, even though so far we have made every attempt to do everything appropriately and legally.

Border Patrol doesn't approve or deny visas.

You really should see a lawyer about this; the specifics are a little strange.

I wouldn't go wandering off into I-212 land either--I don't think you'll find that applies to his case. NORMALLY the time spent during a non-frivilous application for extension does not count as 'overstay' but you have a VERY unique fact set in that:

1- he was issued a 'visa' at the border. I'm curious how that was accomplished.

2-he was specifically allowed ONLY three weeks, not the normal 6 months visa free time

2.5-AND he chose to ignore what the border agent gave him.

3-a Canadian applied for an extension at all.

It doesn't cost much to get some real answers from a real source.

Hint: don't call USCIS for advice anymore. It's a crapshoot as to what you'll hear, and they are not obligated to give you correct information. You've already seen the confusion you can get from not researching ahead of time, so I encourage you to keep at this until the interview.

[evergreen 0]

Got this from www.visacentral.net:

I applied for an extension or change of my temporary visa. While the application

has been pending, my original visa has expired. Am I 'illegal'?

No, you are still in a period of authorized stay called 'tolling'. Your stay is

authorized until BCIS makes a decision on your case. If you receive a notice that

it has been denied, you begin accumulating 'out of status' time at that point and

must leave the country immediately.

[Kez/JWolf 6]

You have answered your own question.... well done...

Kezzie

[cd1111 0]

My husband (then my boyfriend) came to the U.S. from Canada on a visitor visa Even though he had a valid Canadian passport, and even though Canadian citizens are not supposed to need a visa with a valid passport, he was issued a "visitor visa" at the border, requiring him to return to Canada in three weeks. This was because the border agents did not feel that he had sufficient "ties to Canada". He had with him his lease, utility receipts, and proof of income in Canada, but apparently not enough evidence of his "ties" for these particular border agents.

During that three weeks (the period approved by the border agents), we called USCIS, and were told that we could apply online for an extension of the visitor visa, which we did. He stayed in the U.S. awaiting approval of the extension, but returned to Canada before the extension was approved or denied. Overall, he stayed in the U.S. for six months. Longer than the original three week visitor visa, but the usual legal limit for a Canadian visitor to the U.S.

While he was in the U.S., a few months after he arrived, we got married. He did not come to the U.S. with any intent to marry me while on a visitor visa, but we later decided (2 1/2 months after he arrived) to get married.

Also, as I stated, while still waiting for the extension of his visitor visa, despite our marriage, he returned to Canada on his own at the six month mark.

We filed an I-130 (CR1) petition, and an I-129F (K3) petition.

We expect to have an interview at the end of September or early October for our K3.

Will the circumstances described above cause any problems at the interview (at the consulate) or POE (border)?

Thanks!

Do you have his receipt notice number? If so, you can check the status of that online and you can verify if it has been granted or not. That's what I did before, because I had to go home before my extension of stay was approved. Even after 3 years ago, I can still check the status online. It's not an excuse to not receive the approval notice, especially if 6 months has gone by already, because it could be lost in the mail for all you know. I hope that helps:-)

[meauxna 15]

Got this from www.visacentral.net:

I applied for an extension or change of my temporary visa. While the application

has been pending, my original visa has expired. Am I 'illegal'?

No, you are still in a period of authorized stay called 'tolling'. Your stay is

authorized until BCIS makes a decision on your case. If you receive a notice that

it has been denied, you begin accumulating 'out of status' time at that point and

must leave the country immediately.

Yes, but the questions remains: Was your SO admitted as a Canadian? As a B? He was not on a 'visa', he was given a specific return date on his I-94.

[diadromous mermaid 36]

Got this from www.visacentral.net:

I applied for an extension or change of my temporary visa. While the application

has been pending, my original visa has expired. Am I 'illegal'?

No, you are still in a period of authorized stay called 'tolling'. Your stay is

authorized until BCIS makes a decision on your case. If you receive a notice that

it has been denied, you begin accumulating 'out of status' time at that point and

must leave the country immediately.

Yes, but the questions remains: Was your SO admitted as a Canadian? As a B? He was not on a 'visa', he was given a specific return date on his I-94.

Interesting. I view it rather differently. Canadians are visa exempt, and therefore, the imprint on the I-94 is what the border agent determines his duration of authorised stay. I don't see why that would differ from a visa with a similar duration of stay. The issue, in my opinion, is if the I539 was approved or not. If not, then he accrued out of status time after the 21st day.

[Boiler 45,486]

Got this from www.visacentral.net:

I applied for an extension or change of my temporary visa. While the application

has been pending, my original visa has expired. Am I 'illegal'?

No, you are still in a period of authorized stay called 'tolling'. Your stay is

authorized until BCIS makes a decision on your case. If you receive a notice that

it has been denied, you begin accumulating 'out of status' time at that point and

must leave the country immediately.

Yes, but the questions remains: Was your SO admitted as a Canadian? As a B? He was not on a 'visa', he was given a specific return date on his I-94.

Interesting. I view it rather differently. Canadians are visa exempt, and therefore, the imprint on the I-94 is what the border agent determines his duration of authorised stay. I don't see why that would differ from a visa with a similar duration of stay. The issue, in my opinion, is if the I539 was approved or not. If not, then he accrued out of status time after the 21st day.

An overstay of 6 months, or is it 180 days, triggers a ban.

Either way this does not seem the case taking a worst case scenario.

His chances of another non immigrant entry would seem remote.

[evergreen 0]

The US border gave my Canadian husband (we were not married at the time) an I-94 good for three weeks. We called the USCIS and applied online for an extension of the I-94. When a decision had not been made on the I-94 extension at the six month mark, my husband returned to Canada.

Since then, we've filed an I-129, and an I-130. The I-129 is at the consulate, the I-130 is at the NVC.

If I understand correctly, when you file for an extension, whether it is approved or denied, you are not considered illegal unless you remain in the U.S. after the denial or after the date approved by the extension.

Anyway, I'm getting so many different answers here that I think I'll talk to an attorney. Any suggestions?

[kitkat1 5]

Anyway, I'm getting so many different answers here that I think I'll talk to an attorney. Any suggestions?

Schedule a 1/2 hour phone consultation or email consult with Laurel Scott - she's the attorney from www.visacentral.net and is an expert on waivers and overstays. It's not expensive and will be money well spent to clarify for you -- once and for all. Good Luck.