Canadian in the US - When To Go Back

[Googoobuggy 4]

Hello all,

 

My Canadian fiancé and I, the petitioner, are in the US currently. 
 

We counted our days, and it looks like in the beginning of September, it will be about 180 days that he’s been in the US. Every place I read online, I see that the maximum amount of time a Canadian can stay in the US is 182, “or approximately 6 months”.
 

During this pandemic, does this timeframe still apply? I’m just curious. I don’t want him to face repercussions for staying in the United States for too long, especially since we are at the end of our K1 Visa Process. Just wondering if anyone has seen anything about this.

[JacobP 186]

There is no automatic extensions for stay just because of the pandemic. You can check their I-94 on this site to see just how long they're allowed in, assuming they came by plane. You do have alternative options, you may try to file an I-539 to extend his visitor status, or you can skip the K-1 altogether by getting married ASAP and filing for AOS alongside an I-130. Note than an I-539 is not guaranteed to be accepted, and they will not be able to leave with a pending AOS before receiving their green card or AP. If I were you, I'd be tempted to go for AOS right away, especially because of fee changes causing the AOS/EAD/AP package to double in price starting October. I understand you're in AP in Montreal, but the embassy has not shown any signs of resuming services anytime soon.

Edited August 5, 2020 by JacobP

[Ontarkie 14,307]

The rules still apply. He will be required to self quarantine when he arrives and they are taking it very seriously handing out pretty stiff fines if caught. 

It would be best for him to head back sooner rather than later as covid numbers are going to skyrocket soon enough and they are dropping much faster back in Canada. His Canadian Health insurance also will be void if he is gone more than 6 months and takes 3 months to get it back. The last thing he wants is to get covid with no health insurance in either country. 

Edited August 6, 2020 by Ontarkie

[JB&CP 22]

6 hours ago, JacobP said:

There is no automatic extensions for stay just because of the pandemic. You can check their I-94 on this site to see just how long they're allowed in, assuming they came by plane. You do have alternative options, you may try to file an I-539 to extend his visitor status, or you can skip the K-1 altogether by getting married ASAP and filing for AOS alongside an I-130. Note than an I-539 is not guaranteed to be accepted, and they will not be able to leave with a pending AOS before receiving their green card or AP. If I were you, I'd be tempted to go for AOS right away, especially because of fee changes causing the AOS/EAD/AP package to double in price starting October. I understand you're in AP in Montreal, but the embassy has not shown any signs of resuming services anytime soon.

How likely is it that you’d be denied if you went the route of marrying and AOS while visiting on a k1 visa? 

[Zaraliaya 122]

37 minutes ago, JB&CP said:

How likely is it that you’d be denied if you went the route of marrying and AOS while visiting on a k1 visa? 

That's what I am wondering, and how would you even cancel the K1? after you got married? or before? and who would you contact to do it? Montreal(if its there)?

[Googoobuggy 4]

Thanks for the replies. I tried that I-94 website (he did come over by plane), but the information said N/A for everything...and I would be worried about cancelling our K1, and I certainly don’t want him to lose his coverage in Canada during the pandemic, so I think the safest thing would be to wait for the Montréal Consulate to open back up while in Canada. I just needed to know if there was any hope in us being able to stay. I fortunately have duel citizenship, so we won’t need to be separated, but still, it’s uprooting everything again and living away from family.  In any case, we’ll just pack up and stay there for the time being. At least it seems safer up there!

[HRQX 4,145]

3 hours ago, Zaraliaya said:

Montreal(if its there)?

It's done after marriage by letting them know that you no longer meet the "free to marry" requirement. Notify who has the petition (i.e. Montreal or NVC).

[Googoobuggy 4]

On 8/5/2020 at 9:03 AM, JacobP said:

There is no automatic extensions for stay just because of the pandemic. You can check their I-94 on this site to see just how long they're allowed in, assuming they came by plane. You do have alternative options, you may try to file an I-539 to extend his visitor status, or you can skip the K-1 altogether by getting married ASAP and filing for AOS alongside an I-130. Note than an I-539 is not guaranteed to be accepted, and they will not be able to leave with a pending AOS before receiving their green card or AP. If I were you, I'd be tempted to go for AOS right away, especially because of fee changes causing the AOS/EAD/AP package to double in price starting October. I understand you're in AP in Montreal, but the embassy has not shown any signs of resuming services anytime soon.

I mean, now ya got me thinking that we should just get married and file for AOS and an I-130. He came here on a tourist visa because I had surgery and needed help taking care of our newborn - so not with the intention to marry yet. And our relationship is considered bona fide by the Montreal Consulate...we are only in AP because his passport was water damaged ugh. He sent his new passport in, and then BOOM, covid.

 

We are just afraid of the repercussions. Of course we didn’t commit visa fraud, but we’d have to be able to prove it. I have my medical papers for proof, and we have a plane ticket for him intending to go back -we didn’t end up using it because we wanted to wait for any news about the Consulate.

 

Does anyone know how likely it would be that we got approved?

[geowrian 22,337]

9 minutes ago, Googoobuggy said:

I mean, now ya got me thinking that we should just get married and file for AOS and an I-130. He came here on a tourist visa because I had surgery and needed help taking care of our newborn - so not with the intention to marry yet. And our relationship is considered bona fide by the Montreal Consulate...we are only in AP because his passport was water damaged ugh. He sent his new passport in, and then BOOM, covid.

 

We are just afraid of the repercussions. Of course we didn’t commit visa fraud, but we’d have to be able to prove it. I have my medical papers for proof, and we have a plane ticket for him intending to go back -we didn’t end up using it because we wanted to wait for any news about the Consulate.

 

Does anyone know how likely it would be that we got approved?

1) Filing for AOS is allowed here. It's essentially starting over from scratch. Whatever Montreal did won't matter anymore, and a new medical will be required.

Note the timeline for AOS depends on local field office. Many are taking close to a year or so. Some are over 18 months.

You cannot work or travel abroad during this time. You can (and I suggest doing so) file an I-131 and I-765 alongside your I-485 to apply for AP and an EAD. Those will let you work and travel abroad (and return). ETA for those is a question mark right now given the circumstances, but expect around 6 months and hope for something sooner. It may be later even.

That said, since you were applying for a K-1 visa, you should be familiar with all these drawbacks already as they would have applied if you did the K-1 -> AOS route anyway.

 

2) There's no repercussions (other than the drawbacks noted in #1). You don't need to prove that you didn't commit fraud. You're in the US now so you're allowed to AOS.

[Zaraliaya 122]

6 hours ago, Googoobuggy said:

I mean, now ya got me thinking that we should just get married and file for AOS and an I-130. He came here on a tourist visa because I had surgery and needed help taking care of our newborn - so not with the intention to marry yet. And our relationship is considered bona fide by the Montreal Consulate...we are only in AP because his passport was water damaged ugh. He sent his new passport in, and then BOOM, covid.

 

We are just afraid of the repercussions. Of course we didn’t commit visa fraud, but we’d have to be able to prove it. I have my medical papers for proof, and we have a plane ticket for him intending to go back -we didn’t end up using it because we wanted to wait for any news about the Consulate.

 

Does anyone know how likely it would be that we got approved?

I'm starting to think the same, since I came to visit here, and expected to go back on the first, but decided to just wait and see if the consulate says anything, and now this could be an option.....
I also worry about being denied, would hate to cancel the K1, and start those forms, only to be denied, and be over my 180 days. What even happens if you overstay? Not going to be allowed back in the US? (for how long?)

[geowrian 22,337]

38 minutes ago, Zaraliaya said:

I'm starting to think the same, since I came to visit here, and expected to go back on the first, but decided to just wait and see if the consulate says anything, and now this could be an option.....
I also worry about being denied, would hate to cancel the K1, and start those forms, only to be denied, and be over my 180 days. What even happens if you overstay? Not going to be allowed back in the US? (for how long?)

If you accrue 180 days or more of unlawful presence in the US, there is a 3 year ban. At 1 year, it becomes a 10 year ban.

Unlawful presence does not accrue while there is an AOS application pending.

So unless you file after having accrued 180 days, or stay after being denied (why would you be denied?), there is no risk of a ban based on overstay alone (if actually deported, a separate ban still applies).

 

If you have a valid relationship, didn't lie to immigration, don't have a criminal or medical inadmissibility, have a sufficient sponsor for support, etc., then you should be fine.