Canadian spouse - Can I apply for AOS when *out of status*?

[canadagal55 0]

Hello everyone. I am a 55 year old Canadian woman who met my American citizen husband online 2 1/2 years ago. I have since been to the states to visit him and his family 4 times. The 4th time, I came to the US at the end of October, 2014 to visit after 9 months being physically apart to see if we still felt the same. I had a return ticket to go back to Canada for 4 months later. The border official asked me at the airport where I was going to get the money to stay that long. I said I was now able to access retirement funds and that I needed to get away from the Canadian cold winter, all true.

Two weeks after I arrived, my boyfriend proposed to me in front of his children. We decided to get married the following week, along side his children at the courthouse. This was not a first marriage for either of us, both of our parents were dead, so a small wedding was perfect. Our decision to get married right away was to then start the immigration procedure from the states, I would go back to Canada, therefore we would not have to spend so much time apart. Unfortunately, that plan did not work as his ex-wife decided to move his children to another state, so we had to move and did not have a permanent address for filing until now. Time is running out for me as the border official stamped my Canadian passport April 20th. Canadian are not under the visa waiver program but are admitted under the N.A. Free Trade Agreement I believe. I did not need to apply for visa. So, I am trying now to apply for an Adjustment of Status from within the USA.

My first question is do I have to be *in status* to file my immigration documents or can I be *out of status*? I still have to get my medical done and we are having his cousin sign an Affidavit of Support. So time is running out.

My second question is if we filed documents and needed more evidence (say for Affidavit of Support -- need to attach 2014 Income Tax Transcripts but have not received from US Government yet -- so attach Income Tax Form filed instead and say we will forward transcripts later) - how long do they give you to submit that evidence?

My third question is just say for some chance we could not filed evidence required and application was rejected, could I still return to Canada without a ban, since I would be *out of status*?

Thank you so much everyone for your help. This is a great forum and I am so glad I found it. Anne

[Ninti 0]

From my experience with my wife's time Out of Status your open to trouble depending on who you get at the border. We had everything but the green card last time and they denied her because the Out of Status is not Forgiven until the Green Card is issued. However we did have the right travel forms and ok for her to leave, but the re-entry is up to the discretion of the agent you get coming back. If the Passport says to re-enter by April 20th, I would do it and then make plans to come back. You have a while anyway as it sounds like some of the forms are not going to be fast and it takes them months to do anything.

[miggg 3]

If you've already filed your 2014 taxes, and they were accepted by IRS.GOV, you can just get a copy of your transcript online immediately.. Just a heads up. We did so and just included a printout in our package.

[ValerieA 350]

Overstay is forgiven for the spouse of a U.S. citizen - do not leave the country until you have the AP or green card. There is a guide up top for adjusting your status.

[Hypnos 6,578]

1) Immediate relatives of a US citizen, such as a spouse, do not need to remain in-status in order to be eligible for AoS; they need only prove that they entered the country legally, which you usually do by submitting a copy of your I-94 or CBP passport stamp.

2) If you receive an RFE then you are usually given 87 days to respond to it; if you fail to respond to the RFE within the allotted time, or your response is itself deficient, then your I-485 will be denied.

3) To trigger the three year bar you need to have overstayed for at least 180 days (so for you ~December); and to trigger the ten year bar you need to have overstayed for at least 365 days (~April 2016). Any time spent in the US whilst your I-485 is pending does not count as overstay.