Canadian spouse who came to US before Covid travel bans ( no i-130 filed yet). Can we apply for AOS?

[rosebuds 0]

I am an American citizen and my husband is Canadian. We were married in a small ceremony in Canada last February (2019) but have not yet filed I-130 for a lot of reasons. We both live close to the border and have been together in a long distance relationship for going on 11 years now, so it worked out fine for us to visit back and forth regularly until we had the money saved up to file.

 

Shortly before border travel bans between US and CAN were enacted, my husband came to stay with me with the intention of staying for a couple weeks. He took that amount of time off work (he works in a restaurant), and when we crossed together, he was admitted entry with no issue. We travelled together because his car was in disrepair, and it's not uncommon for us to drive back and forth together when visiting one another. However, once he was here, things in MI took a sudden sharp turn south in regards to Covid.

 

Rules about crossing have been confusing and somewhat difficult to follow since, and we were unsure of what would happen should we try to cross back into Canada together. His work was understanding of the situation, especially as they had to reduce staff hours due to Covid restrictions themselves, and so he decided to stay here for as long as possible. Now that we are coming up to his 182 days and having to plan to bring him back to Canada, I am heartbroken at the idea of having to be here alone and unable to see my husband with uncertainty of when borders will be open. Both of our mental health has taken a huge hit, as we both already struggle with anxiety/depression outside of the Covid crisis and everything else going on at this time.

 

Our original plan was to file for I-130 once he was in Canada and we were planning to file that as soon as I come back from taking him home...However, I would like to know if there is any way at all possible that we could instead file for an AOS and allow him to stay here instead? I own my home and make enough money that I could support both of us until he gets his Green Card, and his family/friends in Canada would be able to at least visit him here during that time if he could not travel.

 

We are just struggling mentally and want nothing more than to be together at this time. 😞 

Edited September 2, 2020 by rosebuds
Typos

[Xyrstine 224]

Yes, you can.

 

Here is the guide to file for I-130 alongside AOS. You have to bear in mind that there are restrictions imposed upon travelling for the beneficiary whilst this process is ongoing.

 

Good luck!

 

 

[geowrian 22,338]

Yes, you can file an I-130 + I-485 packet concurrently to do AOS.

[rosebuds 0]

Thank you both for your prompt replies!

 

Should we be worried about denial given this circumstance? Will we be in trouble if he overstays while we are waiting for these packets to go through? My greatest fear is that my spouse will be banned entry due to an overstay right now. We can't really afford a lawyer, and trying to navigate this has been a scary and frustrating process.

[geowrian 22,338]

Denials can happen for any number of reasons, but there must be a reason. Is there a particular reason you're concerned about?

Unlawful presence does not accrue while the I-485 is pending.

[rosebuds 0]

No reason other than him potentially being in the US for too long this year, as his 182 days are up in a few weeks

[geowrian 22,338]

6 minutes ago, rosebuds said:

No reason other than him potentially being in the US for too long this year, as his 182 days are up in a few weeks

By a 182 day limit, I'm assuming that's what his I-94 says?

Either way, overstay is not a bar for AOS as the IR of a USC.

[carmel34 3,650]

2 hours ago, rosebuds said:

My greatest fear is that my spouse will be banned entry due to an overstay right now.

If he stays in the US and you file for adjustment of status, he can't leave the US until getting AP, currently taking quite a few months, if he does he will abandon the AOS process and you'll have to start over.  Once he has the AP card, he should be allowed back in the US if he leaves to visit Canada while waiting for the AOS interview and green card since that's the purpose of AP.  Good luck!

[rosebuds 0]

9 minutes ago, carmel34 said:

If he stays in the US and you file for adjustment of status, he can't leave the US until getting AP, currently taking quite a few months, if he does he will abandon the AOS process and you'll have to start over.  Once he has the AP card, he should be allowed back in the US if he leaves to visit Canada while waiting for the AOS interview and green card since that's the purpose of AP.  Good luck!

Okay. We are definitely okay with that.

 

Thank you everyone for your help. I am so relieved given this info. 😅

Edited September 2, 2020 by rosebuds

[pushbrk 13,076]

2 hours ago, carmel34 said:

If he stays in the US and you file for adjustment of status, he can't leave the US until getting AP, currently taking quite a few months, if he does he will abandon the AOS process and you'll have to start over.  Once he has the AP card, he should be allowed back in the US if he leaves to visit Canada while waiting for the AOS interview and green card since that's the purpose of AP.  Good luck!

While the above is essentially correct, "he cannot leave" should be replaced with "If he leaves before getting AP, he won't get back in and will abandon the AOS process".  Nothing prevents him from leaving.  Getting back in is the issue, not leaving.

[Ontarkie 14,420]

~~Thread moved to AOS from Work, Student, and Tourist visa - the OP is asking about the AOS process.~~

[HRQX 4,145]

13 hours ago, rosebuds said:

and his family/friends in Canada would be able to at least visit him here during that time if he could not travel.

Might be inconvenient for them to visit him if the land and ferry entry restrictions continue: https://www.federalregister.gov/documents/2020/08/21/2020-18470/notification-of-temporary-travel-restrictions-applicable-to-land-ports-of-entry-and-ferries-service

They'll most likely have to fly into the US: