IR1 with hopes of restored B1B2

[AVL1 1]

My girlfriend’s B1B2 was physically cancelled last week when she was coming in for a week long visit. It was cancelled because last year she had an overstay (due to pandemic related to all of her documents stolen during a car robbery 2 weeks prior to her departure) on her previous B1B2 visa which was inside a stolen passport. She got a new B1B2 in February and used it to visit once without issue. This time.. They cancelled it. During secondary the officer said she had an overstay. She said it was on her old visa. It was discovered that on the B1B2 visa application she put 6 months down from the dropdown for her last USA stay. She doesn’t remember what they other options were. At the time of filling out the application it was already stolen and she was here maybe around 7 months. We don’t know if that’s exactly why he cancelled the new visa but we can only assume that he felt it was his responsibility in case the Consular Interviewer somehow missed it on her I94 during her via interview. At the new visa appointment she disclosed her overstay from the previous year on previous stolen visa and of course it was on her I-94. I guess the CBP officer didn’t care that she was issued a new one.

 

We were not planning on getting married urgently, or just yet. She was not planning on anything in the USA, she had 300 more physically presence days required in Canada to get her Canadian Passport. Prior to this, we had only gone as far as “thought about it independently” about marriage.

 

Now, she is going to apply for a new B1B2 to see if there are any visa appointments available and list the “erroneous” visa cancellation as a “reason for visa appointment expedition”. In Canada right now it seems that the soonest visa appt is Calgary in 300 days. The rest are showing 999 days.

 

We hope she can find a B1B2 visa appointment within 2 months and get the B1B2. If it’s longer than that - and since there is a risk they will not issue it anyway… Then we’ll just get married. We’ve been in a loving relationship for close to two years - this just isn’t how we imagined or thought we would be getting married.

 

If the appointment is anything longer than 2 months, we plan on getting married and submitting I-130 petition. Submitting the B1B2 application as unmarried and marking that she doesn’t have a petition filed on her behalf. Then marriage and petition filed and start of IR1 process. Waiting for B1B2 appointment meanwhile and in a few months going to it, and if we have gone through with marriage to let them know there that she has since been married and petition filed. She is a highly paid executive in Canada that works as a Canadian Permanent Resident in their corporate office. It’s not like she would just come across the border and stay here to stay at home illegaly for the rest of her life to cook and clean without the profession she’s studied and worked for her whole life. That our hope why they would grant a B1B2 (no illegal immigration intention or benefit) with a petition in place. 

 

I now find myself in Toronto. We are looking for a larger appt here in Toronto until the conclusion of this mess. I’m shuffling running two businesses in the U.S. and traveling up to Toronto to be together every other week. 

 

Guys, this is the beginning of our journey. Any comments about our plan are most welcome. Any suggestions or issues to point out, etc.

 

 Be kind please, I know and realize our situation is easiest than most have it and yet it’s incredibly difficult and a sudden shift for us.

 

Thanks for taking the time to read.

 

 

 

 

Edited August 15, 2021 by Alex & Val

[Mike E 11,739]

Not sure I see the point of getting another B1/B2 visa if you plan to be married and live in the USA?
 

How did Covid prevent her from returning to Canada on time? The land border was open.  
 

When can she apply for Canadian citizenship? Abandoning that opportunity might create a lifetime of regret.  
 

 

[AVL1 1]

Mike,

 

1. Marriage and living in the USA was not something we discussed until her B1B2 was cancelled. If she had/has a B1B2 we wouldn’t be rushing into marriage or decision making. B1B2 would allow our relationship to continue without the full burden of travel and visit on just one person (me).

 

2. It was a perfect storm of a mess. Passport got stolen. Didn’t know she could go through the land border without a PR. Waited to get the Temp-PR Card, got it, and we both came down with a rough 3 week long COVID infection.

 

3. In 300-350 days she can apply for the Citizenship. We know. We are thinking about the Canadian Citizenship in this as well. Gauging by the long timelines currently - she will by applying for Canadian Citizenship before the green card has the possibility of being issued.

Edited August 15, 2021 by Alex & Val

[Boiler 45,549]

Sh can certainly apply for a B I would be surprised if she got one and do not see how she would qualify under emergency 

Presumably this job is new 

[AVL1 1]

She’s maintained this current position for 8 months now and prior to that held a similar position @ a different company.

 

During height of pandemic and during her overstay in 2020 the Canadian company was having everyone do their work remotely on laptops.

 

Definitely agree regarding near zero chance of qualifying for expedited new visitor visa appointment. 

 

 

[Chancy 6,241]

32 minutes ago, Alex & Val said:

During secondary the officer said she had an overstay. She said it was on her old visa. It was discovered that on the B1B2 visa application she put 6 months down from the dropdown for her last USA stay.

 

Hang on.  It's possible that immigration officials could view that mistake in the entry for length of previous stay as misrepresentation, regardless of your girlfriend's intention.  The DS-160 form enables the applicant to specify the exact number of days.  If the consul officer had noticed the overstay, she would most likely have been denied the B1/B2 visa.  That could mean that mistake on the DS-160 was material misrepresentation to gain an immigration benefit.

 

I think your case is out of DIY territory.  It may be time to search for a good immigration lawyer.

 

[AVL1 1]

Understood. She also had a extension for overstay filed without a determination (as she had left US prior to determination) by the time she had the appt with the consul officer. They reviewed the overstay during the visa appointment. 

[Boiler 45,549]

46 minutes ago, Alex & Val said:

Understood. She also had a extension for overstay filed without a determination (as she had left US prior to determination) by the time she had the appt with the consul officer. They reviewed the overstay during the visa appointment. 

On what basis did she seek an extension?

[Adventine 3,196]

If it were me, I wouldn't spend any more time or energy on reapplying for a B visa. It seems the odds are against you, in terms of the waiting time, the expense, the possible heartache and stress every time she would try to enter the US. I would consult an immigration lawyer about the possible perceived misrepresentation in the B visa application, and depending on their feedback, go get married, and file the spousal visa.

 

[Chancy 6,241]

4 minutes ago, Alex & Val said:

They reviewed the overstay during the visa appointment. 

 

In that previous DS-160, did your girlfriend answer "Yes" to the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

 

If you mean that the consul officer knew about the overstay, discussed it clearly with your girlfriend during the interview, yet decided to grant her another B1/B2 visa anyway, then that would mean they did not consider the mistake in the DS-160 as material misrepresentation.

 

Even so, if you decide to pursue a CR1/IR1 visa, be prepared for extra scrutiny at the interview in Montreal.  Applicants who were turned away by CBP in the past have been subjected to longer administrative processing time than other applicants in Canada.  Here's an example --

 

 

[Chancy 6,241]

1 hour ago, Alex & Val said:

During height of pandemic and during her overstay in 2020 the Canadian company was having everyone do their work remotely on laptops.

 

WAIT WAIT WAIT!  She even worked illegally while on B2 status in the US?!

 

Not only does she have a possible misrepresentation on her record, there's also illegal work...

 

[AVL1 1]

Chancy, thank you for the catch regarding the material representation possibility on the visa application. Yes discussed clearly. 
 

We will consult with attorney on this.

 

Visitors to the USA are allowed to do their Non US work while they are visiting. She was not working here illegally.

[Boiler 45,549]

Up to the CO if they determine there was a Misrep sounds unlikely 

 

I was surprised she got another B mind you

[Chancy 6,241]

1 minute ago, Alex & Val said:

Visitors to the USA are allowed to do their Non US work while they are visiting. She was not working here illegally.

 

No, they're not.  B2 status does not allow any sort of long-term work while in the US.  Location of the employer is irrelevant.

 

From https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html --

These are some examples of activities that require different categories of visas and cannot be done while on a visitor visa:

• Study
• Employment

 

At the point of entry, did CBP know that she intended to work remotely for 6 months while in the US?  If they had known and still let her enter, then I'll believe that they're fine with visitors doing remote work for non-US employers.

 

[Mike E 11,739]

3 hours ago, Alex & Val said:

3. In 300-350 days she can apply for the Citizenship.

Good.  
 

Having read though the other posts since your reply to mine, I don’t see her getting another B1/B2 visa and even if she gets one, I don’t see CBP admitting her on that status.  
 

The reason is that your answers, while truthful, aren’t going to be credible to a CO or CBPO talking to her for 15 minutes.  To either it will will look like she was living and working illegally in the USA.  
 

Get married now.  File I-130 now.  File DS-260 when her both Canadian citizenship and I-130 are  approved.  As others have written, you might be beyond DIY territory on the CR1, which I suspect will end being an IR1.