Applied for I-131 Re-entry permit shortly after arriving. Got secondary for not living in the US in subsequent re-entry

[PMVX 2]

Without providing too much specific information, I'll just include info that I think is relevant to our situation.

Got our IV issued in March with validity until May. We were not yet ready to move because the spouse would not be able to work as a pharmacist until the professional certifications required in the US are completed. Because of this, we looked into our options and we figured that our best option would be to apply for re-entry permit, go back to Canada and complete the requirements for my spouse while i get a remote job in the US and then permanently move to the US once the bare requirements are completed. Per our research, the I-131 re-entry permit can be filed even on the same day as entering the US and then returning back for the biometrics. 
 

We entered early in May via Maine land border and filed for I-131 a day after. Spouse took the TOEFL exam on the weekend and then we went back to Canada. A few days later, the TOEFL results showed that the spouse did not get the speaking score required for FPGEE so another TOEFL exam was scheduled for the first week of June.  Meanwhile, we got our I797 NOA delivered in California as that's the address we originally had in the application as well as during POE. Shortly after, we received biometrics scheduled for an ASC in California. I immediately rescheduled the biometrics appointment a few weeks early and this time requested it done in an ASC in Maine as that's the nearest one for us.

 

A couple of weeks back we re-entered the US to have our biometrics taken and we spent a little bit more time at the border entry this time. Questions about why we have not taken care of the requirements before moving in were raised. We explained to the agent that these exams have a validity expiration and that we are taking care of those requirements while in Canada and thus the reason why we applied for I-131. Eventually we were let in.  With the way things being very slow with the immigration process, it did not make sense for spouse to take the exams without knowing when the VISA would be approved although the spouse already started preparing for the exams after we received a VISA interview date sometime in Oct last year. Spouse already passed FPGEE more than 10 yrs ago but that is no longer valid and spouse need to start over with the entire process.

 

Yesterday we entered US again so that spouse can re-take the TOEFL exam today. This time we got into secondary. The issue with the certifications not being secured back then were brought up again and so we tried to explain again that we are securing those while we're in Canada and thus the reason for the I-131. We were asked for the notice of action but unfortunately we do not have it with us as I did not think that will be asked. Clearly this was an oversight on our part. I explained that the original copy is still in California. She then said that we do not have the copy because we did not live in California. At this point the agent also suggested that we misrepresented that we're living in that address but we actually are living in Canada.  The I-131 requires an address in the US so that's the reason why we put California as the address as that's the same as sponsor's address in the application. The agent also said that the I-131 is for returning residents and thus we do not qualify for the I-131 because we are not residing in the US. She also said that it looks like we're trying to game the system with what we are trying to do. We have no intention of doing as such as we know anyone should not be messing with immigration laws. We are trying to do our best so when we eventually move in about a year, we would not be a burden to our sponsors while making use of the tools available for immigrants. In the end the agent said that nothing is going to happen today and we can proceed going to our destination however we were cautioned that everything we talked about will be on the notes and what I take from it is that if this continues, we may be referred to an immigration judge and the judge will determine our status.

Is the agent correct in saying that we do not qualify for I-131 because we do not reside in the US?
If so, for purpose of immigration how long does one need to stay in an address to be considered as a resident? 

Should we have just stayed in Canada and not re-enter US until I-131 is approved?

What could have been the better option for us in this case?
 

Thanks!

[Lil bear 3,897]

12 minutes ago, PMVX said:

Without providing too much specific information, I'll just include info that I think is relevant to our situation.

Got our IV issued in March with validity until May. We were not yet ready to move because the spouse would not be able to work as a pharmacist until the professional certifications required in the US are completed. Because of this, we looked into our options and we figured that our best option would be to apply for re-entry permit, go back to Canada and complete the requirements for my spouse while i get a remote job in the US and then permanently move to the US once the bare requirements are completed. Per our research, the I-131 re-entry permit can be filed even on the same day as entering the US and then returning back for the biometrics. 
 

We entered early in May via Maine land border and filed for I-131 a day after. Spouse took the TOEFL exam on the weekend and then we went back to Canada. A few days later, the TOEFL results showed that the spouse did not get the speaking score required for FPGEE so another TOEFL exam was scheduled for the first week of June.  Meanwhile, we got our I797 NOA delivered in California as that's the address we originally had in the application as well as during POE. Shortly after, we received biometrics scheduled for an ASC in California. I immediately rescheduled the biometrics appointment a few weeks early and this time requested it done in an ASC in Maine as that's the nearest one for us.

 

A couple of weeks back we re-entered the US to have our biometrics taken and we spent a little bit more time at the border entry this time. Questions about why we have not taken care of the requirements before moving in were raised. We explained to the agent that these exams have a validity expiration and that we are taking care of those requirements while in Canada and thus the reason why we applied for I-131. Eventually we were let in.  With the way things being very slow with the immigration process, it did not make sense for spouse to take the exams without knowing when the VISA would be approved although the spouse already started preparing for the exams after we received a VISA interview date sometime in Oct last year. Spouse already passed FPGEE more than 10 yrs ago but that is no longer valid and spouse need to start over with the entire process.

 

Yesterday we entered US again so that spouse can re-take the TOEFL exam today. This time we got into secondary. The issue with the certifications not being secured back then were brought up again and so we tried to explain again that we are securing those while we're in Canada and thus the reason for the I-131. We were asked for the notice of action but unfortunately we do not have it with us as I did not think that will be asked. Clearly this was an oversight on our part. I explained that the original copy is still in California. She then said that we do not have the copy because we did not live in California. At this point the agent also suggested that we misrepresented that we're living in that address but we actually are living in Canada.  The I-131 requires an address in the US so that's the reason why we put California as the address as that's the same as sponsor's address in the application. The agent also said that the I-131 is for returning residents and thus we do not qualify for the I-131 because we are not residing in the US. She also said that it looks like we're trying to game the system with what we are trying to do. We have no intention of doing as such as we know anyone should not be messing with immigration laws. We are trying to do our best so when we eventually move in about a year, we would not be a burden to our sponsors while making use of the tools available for immigrants. In the end the agent said that nothing is going to happen today and we can proceed going to our destination however we were cautioned that everything we talked about will be on the notes and what I take from it is that if this continues, we may be referred to an immigration judge and the judge will determine our status.

Is the agent correct in saying that we do not qualify for I-131 because we do not reside in the US?
If so, for purpose of immigration how long does one need to stay in an address to be considered as a resident? 

Should we have just stayed in Canada and not re-enter US until I-131 is approved?

What could have been the better option for us in this case?
 

Thanks!

There is always  a huge difference in just how each agent assesses each case at each entry. Technically you have done everything correctly .. but it is always the case that the individual officer makes the decision. Yes you added to the situation by not having the NOA with you.  You have been warned, and your record unfortunately  flagged , that you “may” be considered non resident because of your travel. There is no specific time period documented that would avoid this but the overall appearance as assessed by the  officer who may or may not even listen to your explanation   You may be wise to look at plan B .. move to the US asap and have your spouse meet the GC resident requirements here while waiting for the accreditation to be finalised. If you need 2 incomes, the GC holder can work .. get a job .. even if it’s not in the specialised area of expertise. When we moved to the US for the second time in 2016, I worked as a house cleaner. I am an optometrist of 40+ years, and a  registered ( in Aust) professional clinical counsellor with 15 years experience .. So i understand the big problems with international professional transfer .. but if living in the US is important, dont  throw away the GC for unnecessary delays 

[Crazy Cat 40,135]

42 minutes ago, PMVX said:

so when we eventually move in about a year

So, why even file an I-131?  

Edited June 1 by Crazy Cat

[Crazy Cat 40,135]

45 minutes ago, PMVX said:

What could have been the better option for us in this case?

Delay the Green Card until you were actually really to live in the US.....but that is water under the bridge.

[Crazy Cat 40,135]

25 minutes ago, Lil bear said:

You may be wise to look at plan B .. move to the US asap and have your spouse meet the GC resident requirements here while waiting for the accreditation to be finalised.

I think you nailed it, @Lil bear.  

[PMVX 2]

16 minutes ago, Crazy Cat said:

So, why even file an I-131?  

The spouse needs at least a year to get all the requirements. She had to prepare/study for those and these are not something that you can easily predict. Case in point the TOEFL exam, because of the anxiety she had yesterday she failed the reading part today and thus need to keep on trying. Next time she will be taking it in Toronto/Montreal alone this time because of the uncertainty with our border experience. Could it be done less than 6 months? less likely, less than a year? maybe. We just dont know and applying for i-131 just gives us that leeway that in case it can't be done in a year, then we would have extra time without having to worry about re-entering. 

Edited June 1 by PMVX

[Crazy Cat 40,135]

9 minutes ago, PMVX said:

The spouse needs at least a year to get all the requirements. She had to prepare/study for those and these are not something that you can easily predict. Case in point the TOEFL exam, because of the anxiety she had yesterday she failed the reading part today and thus need to keep on trying. Next time she will be taking it in Toronto/Montreal alone this time because of the uncertainty with our border experience. Could it be done less than 6 months? less likely, less than a year? maybe. We just dont know and applying for i-131 just gives us that leeway that in case it can't be done in a year, then we would have extra time without having to worry about re-entering. 

Could spouse complete the certification requirements while living in the US?

[PMVX 2]

39 minutes ago, Lil bear said:

There is always  a huge difference in just how each agent assesses each case at each entry. Technically you have done everything correctly .. but it is always the case that the individual officer makes the decision. Yes you added to the situation by not having the NOA with you.  You have been warned, and your record unfortunately  flagged , that you “may” be considered non resident because of your travel. There is no specific time period documented that would avoid this but the overall appearance as assessed by the  officer who may or may not even listen to your explanation   You may be wise to look at plan B .. move to the US asap and have your spouse meet the GC resident requirements here while waiting for the accreditation to be finalised. If you need 2 incomes, the GC holder can work .. get a job .. even if it’s not in the specialised area of expertise. When we moved to the US for the second time in 2016, I worked as a house cleaner. I am an optometrist of 40+ years, and a  registered ( in Aust) professional clinical counsellor with 15 years experience .. So i understand the big problems with international professional transfer .. but if living in the US is important, dont  throw away the GC for unnecessary delays 

Thank you for your input. This is one of our option. I can work remotely/in office while spouse can work as pharmacy technician (still need to pass an exam but it's easier vs the pharmacist ). Having a remote US job while in Canada and already have that same job when we re-enter would be ideal so I can take on the living costs while spouse looks for a job.
 

We will be contacting a lawyer next week to see if there's a remedy that can be done so we can avoid this issue at the border. Otherwise you are right, we might need to go plan be prematurely.

[PMVX 2]

16 minutes ago, Crazy Cat said:

Could spouse complete the certification requirements while living in the US?

Spouse can certainly do it within the US. This was the initial plan before we stumbled upon the re-entry permit option.  The downside of doing this is us earning about 75% combined income of what we currently earn in Canada taking into account the exchange rate.

But we are taking in the reality of the situation that we might need to go plan B sooner than later.

 

I have an upcoming vacation to Texas (preferred state to settle) and California (sponsors) end of this Month and that may be cancelled because of the current situation. We certainly can't move that quickly as we have to deal with selling the house or have it placed into a property management for rental if we go plan B.

 

Current options:

A: Proceed as planned if lawyer can figure this out.

B: Move to US permanently as  soon as we can.

😄 Land a remote job first and move in shortly.

D?

I'm leaning towards C if initial plan is no longer a viable option.

[Lil bear 3,897]

3 hours ago, PMVX said:

Spouse can certainly do it within the US. This was the initial plan before we stumbled upon the re-entry permit option.  The downside of doing this is us earning about 75% combined income of what we currently earn in Canada taking into account the exchange rate.

But we are taking in the reality of the situation that we might need to go plan B sooner than later.

 

I have an upcoming vacation to Texas (preferred state to settle) and California (sponsors) end of this Month and that may be cancelled because of the current situation. We certainly can't move that quickly as we have to deal with selling the house or have it placed into a property management for rental if we go plan B.

 

Current options:

A: Proceed as planned if lawyer can figure this out.

B: Move to US permanently as  soon as we can.

😄 Land a remote job first and move in shortly.

D?

I'm leaning towards C if initial plan is no longer a viable option.

Problem with A is that at point of entry there isn’t going to be anything a lawyer can do to sway the mind of the CBP officer. The lawyer can reassure you forever that you are following legal options but you’re still at the mercy of the CBP officer 

[PMVX 2]

1 hour ago, Lil bear said:

Problem with A is that at point of entry there isn’t going to be anything a lawyer can do to sway the mind of the CBP officer. The lawyer can reassure you forever that you are following legal options but you’re still at the mercy of the CBP officer 

sadly you've got a very valid point here.