IR1 with hopes of restored B1B2

[carmel34 3,635]

3 hours ago, Alex & Val said:

she was here maybe around 7 months

Her tourist visa was cancelled for this reason, and she won't be getting another one anytime soon.  Get married in Canada on one of your visits to Toronto, and start the CR-1 spousal visa process if you want to live together in the US.  It takes 1-2 years, and in that time it sounds like she'll have Canadian citizenship.  Good luck!

[AVL1 1]

As others have stated, this misrepresentation can become an issue. It is solved via waiver filed. Waiver can only be filed after CO issues a denial.

 

With the IR1 - @ interview is when this would be told to spouse, and at that time be informed that waiver must be filed

 

If we will be proceeding with an IR1, does anyone see the benefit of filing for a B1B2 after filing the I-130?

 

We see three benefits even with the expectation that it will be denied:

1. Filling out a new B1B2 visa application completely without errors (showing past inadmission, showing past overstay) will show the CO during IR1 interview that most recent application was 100% accurate and will put more paper between the previous approved visa application that had the issue of misrepresentation.

 

2. From what we understand B1B2 visa denial will not affect IR1 in any negative way if all is 100% truthful and accurate

 

3. If past misrepresentation comes up at B1B2 interview (which will undoubtedly be before then IR1 interview) the possibility to file a 212 waiver will occur that much sooner. 

 

Thoughts?

[Boiler 45,549]

Lots of issues and nobody knows the timing, certainly now IR1 looks more likely. I doubt this is waiver territory 

[mushroomspore 3,044]

2 hours 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.

Absolutely incorrect. B application is most likely a waste of time and money.

[Lucky2Lucky 2,526]

2 hours ago, Alex & Val said:

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.

Visitors can not work legally while in the US -even remotely. She violated  the terms of her visa in addition to the overstay. I don’t see how she would get another b2 visa with the overstay, the visa revoked and working illegally. You can definitely try to apply and it gives you peace of mind - but odds do not appear in her favor. If you aren’t ready to get married yet (understandably so) then why rush it. You can always visit Canada, presumably.

[AVL1 1]

7 minutes ago, mushroomspore said:

Absolutely incorrect. B application is most likely a waste of time and money.

 

8 minutes ago, mushroomspore said:

Absolutely incorrect. B application is most likely a waste of time and money.

I see that we have been operating under the wrong assumption. We consulted an attorney who indicated that as long as she was not performing any USA specific duties taking away from the USA job market and solely working for her Canadian company on Canadian matters it would be the same as any foreign answering business phone calls while on vacation or visiting relatives here or a USA visitor to Italy answering e-mails in Italy. Which it was…

 

We will go through the time and money to apply for the B1B2 and expect a denial if there no negatives from a denial and our three perceived benefits make sense:

 

We see three benefits even with the expectation that it will be denied:

1. Filling out a new B1B2 visa application completely without errors (showing past inadmission, showing past overstay) will show the CO during IR1 interview that most recent application was 100% accurate and will put more paper between the previous approved visa application that had the issue of misrepresentation.

 

2. From what we understand B1B2 visa denial will not affect IR1 in any negative way if all is 100% truthful and accurate

 

3. If past misrepresentation comes up at B1B2 interview (which will undoubtedly be before then IR1 interview) the possibility to file a 212 waiver will occur that much sooner. 

 

[mushroomspore 3,044]

13 minutes ago, Alex & Val said:

 

I see that we have been operating under the wrong assumption. We consulted an attorney who indicated that as long as she was not performing any USA specific duties taking away from the USA job market and solely working for her Canadian company on Canadian matters it would be the same as any foreign answering business phone calls while on vacation or visiting relatives here or a USA visitor to Italy answering e-mails in Italy. Which it was…

 

We will go through the time and money to apply for the B1B2 and expect a denial if there no negatives from a denial and our three perceived benefits make sense:

 

 

We see three benefits even with the expectation that it will be denied:

1. Filling out a new B1B2 visa application completely without errors (showing past inadmission, showing past overstay) will show the CO during IR1 interview that most recent application was 100% accurate and will put more paper between the previous approved visa application that had the issue of misrepresentation.

 

2. From what we understand B1B2 visa denial will not affect IR1 in any negative way if all is 100% truthful and accurate

 

3. If past misrepresentation comes up at B1B2 interview (which will undoubtedly be before then IR1 interview) the possibility to file a 212 waiver will occur that much sooner. 

 

Sorry the lawyer gave you bad info. As @Luckycuds said in their comment, the official Department of State webpage about B1/B2 plainly states work is not allowed under that visa. It's advisable to obtain info directly from government websites. Even lawyers sometimes give bad and/or outdated info. VJ is also much more reliable as we are applicants going through these processes in real time.

 

Having a "correct" B1/B2 visa application ultimately will not matter nor will it affect the spousal visa application in any way, positively or negatively. It also will not erase or "balance out" her overstay and her unauthorized work. Ultimately, spouses of US citizens are forgiven of overstay and unauthorized work when their green card is approved. However until they actually become a spouse of a US citizen and their green card is approved, overstay and unauthorized work cannot be overcome. Almost 100% chance that her new B1/B2 application will be denied and adding more denials to her record is not going to provide any benefits. But it's your guys' lives so it's up to you. The bottom line is that the spousal visa is essentially her only way of coming to the US now but that involves her permanently moving so that can only be done after you guys marry and are ready to make the permanent move. Other option is her getting a work visa (which is hard).

Edited August 15, 2021 by mushroomspore

[SalishSea 17,839]

3 hours 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.

Huh?   This is patently untrue.  With all of the issues going on here, she will be lucky to get an immigrant visa, let alone another B2.  

 

 

Edited August 15, 2021 by Jorgedig

[Rocio0010 5,579]

13 minutes ago, Jorgedig said:

Huh?   This is patently untrue.  With all of the issues going on here, she will be lucky to get an immigrant visa, let alone another B2.  

 

 

This is a classic example of people interpreting the laws however they want to. Even if an attorney told you it’s fine, is ALWAYS a good idea to get a second or even a third opinion. 
 

[Rocio0010 5,579]

This is a genuine question for anybody here. Since OP is uncertain about reason for denial, can they request a FOIA to find out, and not make the same mistake again? @Jorgedig @Chancy

[SalishSea 17,839]

1 minute ago, ra0010 said:

This is a genuine question for anybody here. Since OP is uncertain about reason for denial, can they request a FOIA to find out, and not make the same mistake again? @Jorgedig @Chancy

I wouldn't even bother.  It will be because of immigrant intent.

[Crazy Cat 41,898]

4 hours 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.

Do you have a reference for that.  A B2 is a visitor visa.

[Crazy Cat 41,898]

2 hours ago, Alex & Val said:

If we will be proceeding with an IR1, does anyone see the benefit of filing for a B1B2 after filing the I-130?

I don't see the value of filing for a visitor visa before after an I-130 is filed.  She has a record, and will likely be seen as a risk to stay in the US illegally.  

[mushroomspore 3,044]

7 minutes ago, Crazy Cat said:

Do you have a reference for that.  A B2 is a visitor visa.

OP said a lawyer told them that:

1 hour ago, Alex & Val said:

 

I see that we have been operating under the wrong assumption. We consulted an attorney who indicated that as long as she was not performing any USA specific duties taking away from the USA job market and solely working for her Canadian company on Canadian matters it would be the same as any foreign answering business phone calls while on vacation or visiting relatives here or a USA visitor to Italy answering e-mails in Italy. Which it was…

Btw, it absolutely is not the same as a US tourist going to Italy and answering work emails. Every country has their own laws and it is the traveler's responsibility to research and understand their individual visa and that specific country's laws regarding what is or what is not allowed on that visa inside that country. Nobody gets a pass and ignorance is not a defence accepted in court.

 

5 minutes ago, Crazy Cat said:

I don't see the value of filing for a visitor visa before after an I-130 is filed.  She has a record, and will likely be seen as a risk to stay in the US illegally.  

Agreed. OP seems stuck on this idea that a "truthful" B2 application will help them somehow but it won't. Best bet is for them to marry and file for the spousal visa and get rid of any ideas of simply visiting the US in the meantime. OP's girlfriend's privilege of being in the US as a temporary visitor/tourist is completely over.

[AVL1 1]

26 minutes ago, mushroomspore said:

OP said a lawyer told them that:

Btw, it absolutely is not the same as a US tourist going to Italy and answering work emails. Every country has their own laws and it is the traveler's responsibility to research and understand their individual visa and that specific country's laws regarding what is or what is not allowed on that visa inside that country. Nobody gets a pass and ignorance is not a defence accepted in court.

 

Agreed. OP seems stuck on this idea that a "truthful" B2 application will help them somehow but it won't. Best bet is for them to marry and file for the spousal visa and get rid of any ideas of simply visiting the US in the meantime. OP's girlfriend's privilege of being in the US as a temporary visitor/tourist is completely over.

Thank you for your response. Not stuck on anything and open to all comments and suggestions which is why we’ve come here for comment and interpretation. Some good points that we were unaware of have already been brought up. 
 

We genuinely thank the community for that - it’s invaluable as we plan our process and future. We asked the B Visa question to receive a response to see if anyone thinks it could negatively IR1. We will of course consult a different attorney.

 

Does anyone have recommendations they could PM to us or reply here? Topics would mainly be the waiver and misrepresentation.