Travelling to Canada with AP

[SRNCR 6]

Just now, Ash.1101 said:

Oh yeah luckily we're past AOS phase. It only took my husband 77 days from the time we submitted the packet to GC approval. It was incredibly fast. 

So lucky! Most people are waiting forever now depending on the field office. 

[Going through 5,671]

There are definitely loopholes in the immigration system; not all of them good.  Immigration reform is needed to close many of them as seems to be the plans now with our new administration.

 

A consultation with a 2nd lawyer is a good idea---ask him/her about what the first one suggested...I'm interested in whether they would agree with that being the best route for you to take.

[SRNCR 6]

2 minutes ago, Going through said:

There are definitely loopholes in the immigration system; not all of them good.  Immigration reform is needed to close many of them as seems to be the plans now with our new administration.

 

A consultation with a 2nd lawyer is a good idea---ask him/her about what the first one suggested...I'm interested in whether they would agree with that being the best route for you to take.

I will update with what they say tomorrow afternoon. 

[Ryan H 3,834]

***Post violating the TOS (abusive language) removed; Administrative Action taken.***

[SRNCR 6]

Hi all, sorry I completely forgot to update!

 

Long story short, the lawyer said she wasn't sure and they would need to research the effect of leaving the country and coming back. Though, she did say it would clear the issue of coming on a VWP, whereby they (think they) could deport me without a hearing, and the fact that an exit and entry could clear that, confers a new immigration status, doesn't it?

 

We also spoke in length about a case I raised with her called freeman v. gonzales, 444 f.3d 1031 (9th cir. 2006). The person involved was a widower who came on the VWP and was denied her AOS after her husband died. The court held that "Concurrently with the filing of the I-130 and I-485 forms, the Immigration and Naturalization Service (INS) granted Mrs. Freeman a work authorization, effectively treating her as no longer simply a visitor subject to the 90-day limitation of the VWP." They also said "As we shall explain, the text and purpose of this complex statute, along with DHS's action in Mrs. Freeman's case, persuade us that once a VWP visitor properly files an adjustment of status application, the VWP no-contest clause does not deprive the visitor-applicant of the procedural guarantees afforded any applicant seeking adjustment of status." This tells us something clear: you're no longer the status that you came with once an AOS applicant and DHS' actions demonstrate that. This case also clearly outlined a number of fundamental things that the then INS (now USCIS) posted materials/ policies of that was a clear contradiction of their behavior and/ or the law. Shows you that just because they post it, it doesn't mean they're correct. Never be afraid of standing up for your legal rights when it comes to any government agency, much less the immigration one. I say that because I see a lot of people scared of (or maybe just intimidated by) USCIS, when there is no need to be. They are bound by laws and everyone's rights are protected. Even their discretion is able to be reviewed. But, be clear, as it was stated before, you should not try and trick the system. You should stand up for your legal rights, though. 

 

In terms of how that applies to me, should I need to proceed with any application, my status would be AOS applicant, and I've maintained that status and will do until (if) I decide to withdraw and reapply through a different route. If I decide to leave the country, I think it would also be easily argued that I have a different status in that instance as well. 

 

P.S. I'm posting this for your information only, not to enter debate etc about it :). 

[Villanelle 4,122]

Is the issue with your AOS an AWA one? If so I can understand why you are researching how to switch to an employment visa. Also just FYI you posted a decision from the 9th circuit. Are you in the 9th circuit? Different circuit courts often have conflicting rulings- so some of it depends where you live... You also need to consider the cost of trying to fight USCIS. Those court case decisions you see cost the person a significant amount of money and time. First you have to get denied then appeal then appeal the appeal etc etc. During the various appeals processes (and even the AOS denial issues) there are period where you are going to be out of status and unable to work. Its just how the system is set up. Is your goal more to ensure you have a long term solid visa or to minimize time spent apart? Think about it. You may be better served withdrawing AOS and exiting and even if you spend some time out of the US- you will come back with a solid long term visa and avoid the costs of trying to appeal. 

[SRNCR 6]

9 hours ago, username_taken said:

Is the issue with your AOS an AWA one? If so I can understand why you are researching how to switch to an employment visa. Also just FYI you posted a decision from the 9th circuit. Are you in the 9th circuit? Different circuit courts often have conflicting rulings- so some of it depends where you live... You also need to consider the cost of trying to fight USCIS. Those court case decisions you see cost the person a significant amount of money and time. First you have to get denied then appeal then appeal the appeal etc etc. During the various appeals processes (and even the AOS denial issues) there are period where you are going to be out of status and unable to work. Its just how the system is set up. Is your goal more to ensure you have a long term solid visa or to minimize time spent apart? Think about it. You may be better served withdrawing AOS and exiting and even if you spend some time out of the US- you will come back with a solid long term visa and avoid the costs of trying to appeal. 

Long story short, maybe? The offense was a misdemeanor where the elements of the offense my husband was charged with actually require him to have been no more than 4 years older than the person at the time. They were 14 and 18. On the surface it looks like its excused but he was 4 years and a couple months older so we dont know and the lawyers dont know. No NOID yet. But I'm looking for options now. I dont live in the 9th circuit but would fully intend to argue that as an inconsistent application of the law would be unconstitutional. Honestly it's just going to be easier if I leave and come back with AP while I search for answers etc. I'm not going to leave now I think I've pretty much expired all bar one or two options. I'd be worried they'd deny me and I'd be stuck outside U.S. at least this way I can wait here. But I am looking for longevity. 

[Villanelle 4,122]

@SRNCR I remember your post about that now. I also seem to recall you have some legal background right? I can understand how that can make you more apt to go for a legal battle vs someone who has never had experience with courts. Personally I still firmly believe going the court route is the 'harder' way to go- and who needs that added stress and aggravation? If it can be avoided then you should avoid it. 

 

Just an FYI immigration matters (from what I know about it) are not really under the this is unconstitutional umbrella. For example. People with TPS can AOS in 13 states (6th and 9th district) because those courts ruled they can. TPS people in other states can not. If the unconstitutional umbrella theory applied it would make one districts rulings apply in all and thats not how it is. ( https://cliniclegal.org/resources/guidance-practitioners-adjustment-status-tps-recipients-sixth-and-ninth-circuits) So if you are going to continue to do research focus on your district.

 

Also I am not familiar with employment based visas and what they require. You mention lawful status and overstay and how you know the difference between them. What does the employment visa require of you? See the thing is overstay or out of status days are incredibly difficult to compute in these kinds of situations. An attny that is knowledgeable in that may be able to help but from my observations they are usually just as clueless as everyone else and ultimately it comes down to USCIS deciding what counts and what doesnt.

 

It seems the attny you spoke to advised you since you came on the VWP and filed AOS and theres a chance the AOS will be denied for you to exit the US before 180 days and re-enter on the AP you got from filing the AOS- so that IF or when the AOS is denied they do not go back and say 'oh you entered on X date with VWP and have been here since- so you past your 180 allowed VWP time and 181 days + on is now counted as overstay. 

 

I do not believe leaving and coming back with AP would solve that. My thinking is your last entry if you did that would have been under AP but I dont believe that overrides the VWP clock that would be used to calculate when you are overstay IF the AOS is denied. 

 

I am going to tag @geowrian as he knows very specific aspects of immigration policies to see if he can add anything to this. 

[SRNCR 6]

1 hour ago, Villanelle said:

@SRNCR I remember your post about that now. I also seem to recall you have some legal background right? I can understand how that can make you more apt to go for a legal battle vs someone who has never had experience with courts. Personally I still firmly believe going the court route is the 'harder' way to go- and who needs that added stress and aggravation? If it can be avoided then you should avoid it. 

 

Just an FYI immigration matters (from what I know about it) are not really under the this is unconstitutional umbrella. For example. People with TPS can AOS in 13 states (6th and 9th district) because those courts ruled they can. TPS people in other states can not. If the unconstitutional umbrella theory applied it would make one districts rulings apply in all and thats not how it is. ( https://cliniclegal.org/resources/guidance-practitioners-adjustment-status-tps-recipients-sixth-and-ninth-circuits) So if you are going to continue to do research focus on your district.

 

Also I am not familiar with employment based visas and what they require. You mention lawful status and overstay and how you know the difference between them. What does the employment visa require of you? See the thing is overstay or out of status days are incredibly difficult to compute in these kinds of situations. An attny that is knowledgeable in that may be able to help but from my observations they are usually just as clueless as everyone else and ultimately it comes down to USCIS deciding what counts and what doesnt.

 

It seems the attny you spoke to advised you since you came on the VWP and filed AOS and theres a chance the AOS will be denied for you to exit the US before 180 days and re-enter on the AP you got from filing the AOS- so that IF or when the AOS is denied they do not go back and say 'oh you entered on X date with VWP and have been here since- so you past your 180 allowed VWP time and 181 days + on is now counted as overstay. 

 

I do not believe leaving and coming back with AP would solve that. My thinking is your last entry if you did that would have been under AP but I dont believe that overrides the VWP clock that would be used to calculate when you are overstay IF the AOS is denied. 

 

I am going to tag @geowrian as he knows very specific aspects of immigration policies to see if he can add anything to this. 

Yes I'm a lawyer in my home country. I agree if I can avoid it, I will. But I may not be able to. 

 

I will look more into it actually applying only to those in the court jurisdiction. Thank you! It seems so backward to me that a country as advanced in protecting the rights of it's citizens would allow a Federal Law and the application thereof to apply only to some states. I honestly think it would be very difficult for the government to overcome a petition for a Writ of Mandamus or even so far as Habeas Corpus which sought an equal application of the INA across each state.

 

The employment visa requires me to maintain lawful status and not accrue unlawful presence. I'm not accruing unlawful presence as I lodged my i485 prior to my VWP expiring, however, I've failed to maintain status (I think?) because I don't have a valid visa right now. Realistically though, pending the previous issue about whether or not I could expect to apply the law consistently across all states, I've maintained a new "status" by applying for AOS. Both attorneys I've spoken to on this have said I should leave prior to the 180 days being up since my VWP expired as that would fix my issue. I've done more research into what people write in the status box when reapplying if they've gone and returned on AP and been denied for some other reason. They write "DA" which is the correct status after you've been paroled. On the USCIS website they say they don't count what happened on your last stay, so technically if this creates a new entry, I'm thinking it also wipes out whatever happened on the VWP. I wish this was not new ground and the attorneys could give me something better than "I don't know".