IR1 with hopes of restored B1B2

[Crazy Cat 41,898]

4 minutes ago, Alex & Val said:

We asked the B Visa question to receive a response to see if anyone thinks it could negatively IR1

I hope you realize that the answer is that a denied or revoked B visa, in itself, should not affect a spousal visa.  In the unlikely event of misrep or bar, then it would be a different story.  Good luck on your journey.  What a ride!!!!

Edited August 15, 2021 by Crazy Cat

[mushroomspore 3,044]

4 minutes ago, Alex & Val said:

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.

B visa application will not negatively affect spousal visa. But there is no benefit either. As stated, her privilege of visiting the US is effectively over. The only recommendation you will get is to marry, file spousal visa and do the waiver with an experienced US immigration lawyer IF your case gets to that point.

[African Zealot 1,455]

5 hours ago, mushroomspore said:

Ultimately, spouses of US citizens are forgiven of overstay and unauthorized work when their green card is approved.

I always thought this is for adjustment of status. Is it also applicable for consular processing?

[HRQX 4,145]

6 hours ago, African Zealot said:

Is it also applicable for consular processing?

There is no general inadmissibility section* for unauthorized employment (see INA 212). For those adjusting inside the US there are adjustment bars and certain applicants are exempt to the adjustment bars (i.e. IR of US citizen, VAWA-based applicants, etc. https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6)

 

*That is why those that do a provisional waiver (Form I-601A) before leaving the US for Immigrant Visa interview only have a waiver for their unlawful presence and still get their Immigrant Visa despite any unauthorized employment that they did.

Edited August 16, 2021 by HRQX

[Kai G. Llewellyn 838]

So given the current waiting times for the I-130, NVC and Montreal Consulate, I would say it's a safe bet that she'll absolutely get her IV after 300 days if nothing is expedited. After she gets her IV she'll have 6 months after her medical to use her IV to enter the US. So at a bare minimum, you'll be looking at 360 days, but I'd say she'd have way more than that. Plus she can delay any step of the process prior to her IV issuance.

 

Regarding Canadian citizenship, she does not need to intend to live in Canada to apply or be granted her Canadian citizenship. She can get to 300 days of physical presence then apply (I would suggest having a decent amount over 1095 days in Canada for citizenship if there's an issuer with the physical presence calculation). If she moves out of the country after then, she can still see that process through to completion as long as she maintains her Canadian PR (2 years in Canada out of every 5). In fact, that's what I'm doing exactly right now. The only requirements are is that she needs to be able to take the test and Oath in Canada as well as be able to receive notices from Immigration Canada.

 

Personally, I wouldn't bother with the B-1/B-2, given your plans and prior overstay she'll have a tough time getting a new one. Especially given that her new one was also cancelled.

 

It is held on VJ that working on a B for a foreign employer and being paid outside the US is considered illegal work. This is an area of law which has not been clearly defined and I'm aware of several cases where someone even mentioned to a CBP officer that they were remotely working for their Canadian employer on their visit without issue. I have yet to see a case where someone has had their visa cancelled and/or denied entry *specifically* over it.

Edited September 17, 2021 by Kai G. Llewellyn

[Mike E 11,739]

16 hours ago, Kai G. Llewellyn said:

I have yet to see a case where someone has had their visa cancelled and/or denied entry *specifically* over it.

I’ve seen entry denied and visas canceled specifically but indirectly because of remote work.  
 

Because the alien is a remote worker, often a free lancer, this enables the alien to live anywhere and maintain income.  So the alien ends up making too many, too frequent trips of too long of a duration and eventually encounters a CBP officer who puts an end up to it because the alien appears to be living in the USA.  
 

How much is too many, too frequent, and too long, is in the subjective eye of the CBP officer.  However once it gets to that point telling CBP “but it’s ok I’m just a remote worker” just compounds the inadmissibility because the alien is admitting weak ties to the country of citizenship.  
 

So one off “short” term remote worker stints might be ok from CBP’s perspective and maybe even the rest of DHS’s perspective.  Anything else is going to enhance the risk.  

Edited September 18, 2021 by Mike E

[Kai G. Llewellyn 838]

4 hours ago, Mike E said:

I’ve seen entry denied and visas canceled specifically but indirectly because of remote work.  
 

Because the alien is a remote worker, often a free lancer, this enables the alien to live anywhere and maintain income.  So the alien ends up making too many, too frequent trips of too long of a duration and eventually encounters a CBP officer who puts an end up to it because the alien appears to be living in the USA.  
 

How much is too many, too frequent, and too long, is in the subjective eye of the CBP officer.  However once it gets to that point telling CBP “but it’s ok I’m just a remote worker” just compounds the inadmissibility because the alien is admitting weak ties to the country of citizenship.  
 

So one off “short” term remote worker stints might be ok from CBP’s perspective and maybe even the rest of DHS’s perspective.  Anything else is going to enhance the risk.  

I mean, I'm in agreement. The issue isn't specifically the remote work, it's moreover that it lends the ability for long stays, de facto residence in the US and that the employment itself can't be used as a tie to home which is what impacts future entries. What I mentioned is that I haven't see a case where the only thing CBP found was that the visitor was intending to work remote and deny them entry over it. There were usually other factors that played into it.

[jan22 3,056]

Some of this may sound harsh, but I'm not trying to be mean -- rather, I'm trying to show the reality of the situation.

 

First, as long as she disclosed the overstay and it was discussed with the consular officer at the February visa interview, there is absolutely no way that would contribute to a finding of misrepresentation even though "6 months" was written on the application -- that issue has already been resolved though the issuance of the visa.  So, there is to be "fixed" by applying for another B2 visa.

 

Second, I don't believe the overstay was the reason for the visa cancellation.  It seems more likely that she was denied for having immigrant intent by using the B2 to essentially live in the US.  She stayed in the US for 7 months last year -- that would indicate to the immigration official that she didnt have strong ties that would require her to leave the US.  You didn't say when she left the US after the overstay, but apparently fairly shortly after her return to Canada she was applying for a new visa and then used it to return to the US early thIs year.  You also don't say how long she stayed on that February visit.  But however long it was, it might begin to look like a pattern of too much time in the US vs time outside the US to the immigration officer when she tried to enter once again this month.

 

Third, after an overstay, a denial of entry, and a visa cancellation -- there is no chance she will be issued yet a third B2 visa.  The visa cancellation was not "erroneous" -- it was a decision of the immigration offticer that she no longer qualifIed for the vIsa based on her travel history, her level of ties outside the US, etc.  A consular officer will respect that decision and will not over-rule it immediately --  they will want some time to pass so they can see stoner ties to Canada.  Plus, they know that even if they do issue a new visa, it is unlikely that an immigration officer would grant entry to the US anyway. 

 

Fourth, none of the issues discused will interfer with getting an immigrant visa approved.

 

So, you need to make your decisions on how you are going to move forward without a B2 visa.  Goof luck!