What do I need to do: Overstay from Canada, married to American

[kebandre 0]

I came to the U.S. in around 2005 to go to college on a student visa. In 2007 I decided school was no longer the direction I wanted to go so I notified my school and told them I wouldn't be joining them the next semester, a week or 2 later I returned to Canada and surrendered my student visa at the border. Several weeks later I returned back to the US as a tourist and stayed there until today. So that's about 5 years I've been in the US since coming in as a tourist. A year ago I met my current wife and we married last month.

I don't have the money to pay lawyers (the ones I saw quoted me $4K and $5k). Both however reassured me that it was an easy process due to my entering legally into the US and being from Canada (as opposed to someone from, say, Mexico or Middle East I assume). I don't have a criminal record in either country and neither does my wife who is born and lived in the US her entire life. I have never worked illegally, though I have sold some items on eBay.

So I want to know what do I have to do to gain legal status here in the US now that I am married to my American wife.

I've done a little bit of research and it looks like I might need an adjustment of status. Not sure if this is correct.

I understand that there are some people who work in law offices such as a clerk or a temp that offer to help guide you in the proper direction as long as you do the work for a minimal fee. If such a thing exists, are there any in the Los Angeles area?

Edited July 23, 2012 by kebandre

[canadian_wife 1,822]

http://www.visajourney.com/content/i130guide2

Adjust status, this is a DIY site so it might be good for you to ask your questions here

Don't leave the US, not even with travel documents, until your green card is in hand

Good luck

[kebandre 0]

I meant to say that I am more than willing to do the work, so long as I know I am filling out the proper forms and talking to the right people.

Thanks Canadian_wife

[RandyN 10]

I came to the U.S. in around 2005 to go to college on a student visa. In 2007 I decided school was no longer the direction I wanted to go so I notified my school and told them I wouldn't be joining them the next semester, a week or 2 later I returned to Canada and surrendered my student visa at the border. Several weeks later I returned back to the US as a tourist and stayed there until today. So that's about 5 years I've been in the US since coming in as a tourist. A year ago I met my current wife and we married last month.

I don't have the money to pay lawyers (the ones I saw quoted me $4K and $5k). Both however reassured me that it was an easy process due to my entering legally into the US and being from Canada (as opposed to someone from, say, Mexico or Middle East I assume). I don't have a criminal record in either country and neither does my wife who is born and lived in the US her entire life. I have never worked illegally, though I have sold some items on eBay.

So I want to know what do I have to do to gain legal status here in the US now that I am married to my American wife.

I've done a little bit of research and it looks like I might need an adjustment of status. Not sure if this is correct.

I understand that there are some people who work in law offices such as a clerk or a temp that offer to help guide you in the proper direction as long as you do the work for a minimal fee. If such a thing exists, are there any in the Los Angeles area?

Most here have followed the Guides and have done everything themselves. Check out the Guides and, if you have any questions, those that have "been there, done that" will help you through the process. It really isn't that hard if you follow the Guides.

[dwheels76 5,468]

Read guides, don't leave the country. Your overstay is forgiven since you are married now. YAY! but read the guides than come back and ask away. I gather you'll have to do the I-130 and Adjustment of Status and a bunch of other forms. Just money but nothing close to that 4K or 5K. Thats a good thing. And we are all here to help each other.

So get to reading.

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum; the OP will need to file for AOS.

[Moomin 292]

You will be adjusting from tourist visa (AOS from tourist visa). There's a guide someone already gave you a link to. I'd suggest you read it, then read it again and collect all the personal documents you need. Remember only to include copies of your personal documents.

The Visa Journey guide is based on the instructions from USCIS(it's just more user friendly and less of a maze). The I-130 that you will be filing has those instructions, along with the i-485 instructions.

The I-130 is one form you will be needing - and because USCIS will ask for proof of you being eligible to adjust status, you will have to submit documents supporting that. Your certified copy of marriage certificate is one thing, another thing is proving you entered with inspection(stamp in passport, i-94) - this is a bit sppecial for Canadians though, since most don't get an i-94 when entering the country.

But read the guides, they are very detailed.

..And keep coming back to ask questions when in doubt.

[SBB 74]

Read guides, don't leave the country. Your overstay is forgiven since you are married now. YAY! but read the guides than come back and ask away. I gather you'll have to do the I-130 and Adjustment of Status and a bunch of other forms. Just money but nothing close to that 4K or 5K. Thats a good thing. And we are all here to help each other.

So get to reading.

Additionally, since you came as a Canadian tourist, I believe you haven't technically overstayed as you haven't have a judge or immigration authority adjudicate you have done so.

[Ryan H 3,812]

Additionally, since you came as a Canadian tourist, I believe you haven't technically overstayed as you haven't have a judge or immigration authority adjudicate you have done so.

That's not correct, a foreign citizen is only has an authorized stay for a specific amount of time starting when they enter. If the foreign citizen does not leave the US and does not officially extend their authorized stay, then they incur overstay by law.

[SBB 74]

That's not correct, a foreign citizen is only has an authorized stay for a specific amount of time starting when they enter. If the foreign citizen does not leave the US and does not officially extend their authorized stay, then they incur overstay by law.

Yes, but there's an exception for Canadian tourists who arrive without a visa or I-94. They don't become Out of Status until some sort of action or adjudication by DHS determines them to be so.

[Ryan H 3,812]

Yes, but there's an exception for Canadian tourists who arrive without a visa or I-94. They don't become Out of Status until some sort of action or adjudication by DHS determines them to be so.

Please provide a link to an official government source that states this.

Edited July 24, 2012 by Ryan H

[Moomin 292]

Please provide a link to an official government source that states this.

http://shusterman.com/unlawfulpresence-canadians.html

...however the stamp in passport or having an i-94 seems to triumph the "exemption". Entering on a K1 = stamp.

[Kathryn41 3,205]

Yes, but there's an exception for Canadian tourists who arrive without a visa or I-94. They don't become Out of Status until some sort of action or adjudication by DHS determines them to be so.

Not true. https://help.cbp.gov...TJuZVgxbA%3D%3D

(note - this is the official US government border site and not a lawyer's website)

A Canadian citizen is allowed to visit the US for a maximum of 6 months per year or per visit unless given different permission by a Visa or by the border authority upon entry. When a Canadian crosses the border they have a de-facto B-2 Visitor's visa without having the paperwork. Once those 6 months have expired, the Canadian visitor is out of status. It does not require USCIS (formerly DHS) to take any sort of action against them. The same overstay rules apply as well. If a Canadian overstays their 6 months by 6 months - in other words, is in the US for a year without leaving, then they would incur an automatic 3 year ban on re-entry when they do leave. If they are in the US for a year past their allowed 6 months, they incur an automatic 10 year ban.

A visitor is expected to spend at least as much time out of the US as in the US, so if someone stays in the US more than 6 months in a year, they will find that they are required to file a tax return with the IRS or file proof that they have maintained closer ties to their home country than to the US. This applies for Canadians as well.

It is unlikely that the USCIS will do anything about overstay Canadians until something brings them to USCIS' attention - for example, taking a cruise to the Bahamas from Miami and finding themselves denied re-entry. This happened to a former client who moved in with her US boyfriend. She was there for 5 years and then they left the US for a cruise. When she tried to re-enter, she was denied entry. Since there was no way for her to stay on the cruise ship, she was placed in a detention center. She was there for 4 months while the Canadian Consulate and her parents worked to secure her deportation to Canada. She now has a 10 year bar.

This is why, if you have legal grounds to adjust status - aka - apply for a green card based upon a marriage to a US citizen - you do that before you leave the US for any reason. Once the green card (AOS) application is approved any out-of-status or overstay time is forgiven - but not until that application is approved. Leaving the country without that approval will mean not only a 10 year ban but also the forfeit of the application, as USCIS views that as abandonment of the petition.

(Here also is a non-Government link that addresses the issue raised by the lawyer's website above: http://www.aboveborder.com/node/13 The key is that Canadians enter on a de-facto B-2 visa which has a maximum 6 month limit).

Edited July 24, 2012 by Kathryn41

[Harpa Timsah 13,258]

Not true. https://help.cbp.gov...TJuZVgxbA%3D%3D

(note - this is the official US government border site and not a lawyer's website)

Thank you Kathryn! This rumor has been floating around for a few weeks on this site and I am glad to have a source to confirm what I believed to be true. Thanks!

[bigdog 376]

K- is right on, good luck.