Canadian living in US with IR-1 visa will I be able to visit canada and then enter back to US?

[js0622 4]

My case is a little difficult and I need some answers to a few questions.. Im a Canadian citizen and I married a US citizen in canada, after that I just went through the boarder on the canadian/american treaty or visitor visa, I didint need to apply for anything, they just let you through. I have been living with my husband here in the US since, its been about a year now, and I have already gone through the I-130 process, which was approved and sent to NVS to give me a visa before I can apply for adjustment of status. I applied for i-130 2 months after entering the US. Since i thought my case is in process i didint apply for any other kind of visa.

I am waiting to start the process of a visa now. Will I be able to enter the US again if I travel with the visa? Does me staying here until now count as over staying? Am I on the right track with immigration?

[k.dlg 300]

If I understood correctly, you entered the US after you got married and then applied for an spouse visa? A IR-1/CR-1 visa is permission to enter the US with intent to immigrate, and adjustment of status is not necessary since all of the preliminary paperwork was submitted and processed before entry which is why green cards are issued shortly after arrival. Depending on how long you've been married, you would have gotten an IR-1 if you were married 2+ years, or a CR-1 if you were married less than 2 years. IR-1s are granted a 10 year green card, and CR-1s are granted a conditional green card valid for 2 years, to which they would need to remove the conditions before the 2 years is up and apply for a 10 year GC.

Since you applied within the country, you don't need and do not qualify for a visa since you're already here. You need to file the I-130 (which you already have) and the I-485 (http://www.uscis.gov/i-485) at the same time to adjust your status. Others can correct me if I'm wrong, but from what I understand, you are are overstaying right now if you have gone past the amount of time for a visitor visa. You need to file your I-485 ASAP if you do not have plans to move back to Canada.

[Boiler 45,486]

Sounds like, I would strongly]y suggest a read of the guides.

[k.dlg 300]

Sounds like, I would strongly]y suggest a read of the guides.

There's guides on here?

[NikLR 13,227]

My case is a little difficult and I need some answers to a few questions.. Im a Canadian citizen and I married a US citizen in canada, after that I just went through the boarder on the canadian/american treaty or visitor visa, I didint need to apply for anything, they just let you through. I have been living with my husband here in the US since, its been about a year now, and I have already gone through the I-130 process, which was approved and sent to NVS to give me a visa before I can apply for adjustment of status. I applied for i-130 2 months after entering the US. Since i thought my case is in process i didint apply for any other kind of visa.

I am waiting to start the process of a visa now. Will I be able to enter the US again if I travel with the visa? Does me staying here until now count as over staying? Am I on the right track with immigration?

So you've been in the USA for a year? I was going to ask you what you said to the border guards but you may be putting yourself into deep water by answering, so I won't.

Yes, you've overstayed.

You're not really on the right track. You needed the visa to move in the first place.

I think you have two directions you can take, but I think only one is the legal route however I will present both and let other, more experienced members, correct any mistakes I may have made.

You will need a I-601A waiver to be able to attend your interview in Montreal. Iif you've overstayed by 180 days+ then you have accrued a 3 year ban from the USA. Should you leave the USA without this waiver approved you will not be able to return.

Then you can continue your processing through the NVC, go to Monteal, have your interview and legally move to the USA.

http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers (this link explains the waiver)

OR

You can get your I-130 back from the NVC and apply for an adjustment of status using the I-485. Overstay is automatically forgiven for spouses of US Citizens when they successfully adjust their status. However you risk this being denied, having to leave the USA, and be banned (due to overstay and/or misrepresentation) should they have evidence of misrepresentation (aka lying to enter the USA to move.)

There's guides on here?

If you visit this site on a PC or use the "full version" on a cell phone or tablet you'll see the guides and the wiki and about 90% of the functionality you are missing if you only visit here from the mobile version:

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

http://www.visajourney.com/wiki

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~~moved to what visa do I need from IR1/CR1 process and procedures as the OP's case is more complicated than a normal IR1/CR1 process and procedure and may need to be moved to a more specific place in the future~~

[js0622 4]

I just want to mention one more thing. When my I-130 was approved it said i am not eligible to apply for i-485 and they sent my documents to NVC for processing which I am waiting correspondence from right now.

Thank you all for your replies

[Boiler 45,486]

I wonder why?

[NikLR 13,227]

Interesting...

[Harpa Timsah 13,258]

I just want to mention one more thing. When my I-130 was approved it said i am not eligible to apply for i-485 and they sent my documents to NVC for processing which I am waiting correspondence from right now.

Thank you all for your replies

Sorry, you are very confused. Your case is not difficult at all, you made it so by doing the wrong things.

You have been doing the wrong process the whole time, and are risking spending more money and being banned from the US.

All stand-alone I-130 approvals say that the person is not eligible to Adjust Status, that is because you don't send in proof of legally entering the US for such a petition. It is just standard language put on there, it is up to you to file for AOS and show them that you are eligible to adjust status.

I highly recommend you consult with a lawyer, because I don't think DIY is working for you because of all the mistakes you have made. Good luck.

Edited August 7, 2014 by Harpa Timsah

[TargetNovember14 41]

Look at the stamp on your passport when you entered into USA. That date will tell you by which time you needed to come back to Canada. If you have gone past that date, then yes you have overstayed. It depends on the number of months/years that you have overstayed.

I would definitely recommend getting an attorney. I cannot give you statistics or perfect answers on this, but i do know from personal friends with two couples where they over stayed their visa (one from japan and one from brazil) that did that. They both hired good immigration attorney's and got their AOS (adjustment of status) in the USA itself and were issued green cards. Infact for them it was a shorter process (5 months in total) because you can do both steps I-130 and 485. The last one was (from japan) was as recent as january of 2014. Ofcourse circumstances and issues are different in each case, SO I would definitely RECOMMEND getting an attorney and fixing it as soon as possible.

Best of luck in your journey.

My case is a little difficult and I need some answers to a few questions.. Im a Canadian citizen and I married a US citizen in canada, after that I just went through the boarder on the canadian/american treaty or visitor visa, I didint need to apply for anything, they just let you through. I have been living with my husband here in the US since, its been about a year now, and I have already gone through the I-130 process, which was approved and sent to NVS to give me a visa before I can apply for adjustment of status. I applied for i-130 2 months after entering the US. Since i thought my case is in process i didint apply for any other kind of visa.

I am waiting to start the process of a visa now. Will I be able to enter the US again if I travel with the visa? Does me staying here until now count as over staying? Am I on the right track with immigration?

[Teddy B 17,252]

Sorry, you are very confused. Your case is not difficult at all, you made it so by doing the wrong things.

You have been doing the wrong process the whole time, and are risking spending more money and being banned from the US.

All stand-alone I-130 approvals say that the person is not eligible to Adjust Status, that is because you don't send in proof of legally entering the US for such a petition. It is just standard language put on there, it is up to you to file for AOS and show them that you are eligible to adjust status.

I highly recommend you consult with a lawyer, because I don't think DIY is working for you because of all the mistakes you have made. Good luck.

OP, this is what you should do. And you should probably not leave the US until you have spoken to an attorney and filed the proper paperwork to adjust your status and receive your advanced parole for travel.

[NikLR 13,227]

I do think adjusting status would be easiest at this point but wanted to show the other option. thanks Harpa for bringing up the wording reasoning!