Does applying for Spousal Visa adjust status and not violate visa end date?

[mytotoro 0]

Hi,

 

I am a Canadian citizen and my partner is an American citizen. We have discussed marriage (and the visa process) but haven't made any concrete plans because we were planning to do it next summer.

 

I recently entered the US and the immigrations official stopped me for secondary and was about to deny me entry into the United States.

 

I have never overstayed any visas but my pattern of being in the US for periods of time and only leaving the US for a couple of days for travel is very similar to 'living' in the US and the customs official said that with this pattern, it would be a matter of time before I was denied entry. They allowed me entry this time but gave me a shortened limited stay B1/B2 visa status until late Janurary.

 

My question is - if my girlfriend and I proceed to get married and send in our package, what happens to my personal B1/B2 status?

1. Would I need to leave by the late Jan deadline (otherwise I overstay my visa?)
2. How do I keep my application active if I leave the country? I thought leaving the country = automatic abandonment of the application

 

Thanks

[pushbrk 12,876]

Leaving the country constitutes abandoning an adjustment of status application.  You've posted in the immigrant spouse VISA forum.  To secure a spouse visa, one leaves the USA on time, no matter when the petition is filed, and then completes the immigrant visa process with a medical exam and interview at the US Consulate in Montreal.

 

Time to do the homework and study the difference between adjusting status from within the USA, and applying for a spouse visa.  The result is the same ultimately, but the processes are very different.  Also, the "package" is not the same.

Edited October 24 by pushbrk

[mytotoro 0]

ah sorry, I should have been more specific - I am currently in the US so we would be sending the I-130, I-485, & I-131 concurrently.

 

I've been told that once the I-485 is submitted, my status would automatically adjust to 'authorized stay' upon receipt. I'm looking for where I can find that confirmation or more details (DHS or USCIS website) - the reason is that I don't want to overstay my current B visa.

Edited October 24 by mytotoro

[NorthByNorthwest 351]

11 hours ago, mytotoro said:

ah sorry, I should have been more specific - I am currently in the US so we would be sending the I-130, I-485, & I-131 concurrently.

 

I've been told that once the I-485 is submitted, my status would automatically adjust to 'authorized stay' upon receipt. I'm looking for where I can find that confirmation or more details (DHS or USCIS website) - the reason is that I don't want to overstay my current B visa.

 

Just to be clear, while your I-94 is valid you are lawfully present, if you file I-485 (after getting married) your status changes to being in period of authorized stay once the I-94 expires. That's the gray zone of immigration where you are not accruing unlawful presence, and you can not leave the country until you have an approved AP/I-131. And of course you can't work either until you have an approved I-765.

[appleblossom 2,479]

11 hours ago, mytotoro said:

ah sorry, I should have been more specific - I am currently in the US so we would be sending the I-130, I-485, & I-131 concurrently.

 

Not sure I'd take the risk of AOS personally given the situation. Were you questioned on entry about the reason for your visit? Did they ask you at any point about any intention of staying?

 

This recent thread may be worth reading - 

 

[mam521 2,062]

What do you do for work presently?  

 

You have a choice between marrying and adjusting status right now because you are present in the US, or leaving and proceeding with consular processing. 

 

You cannot leave and come back and then adjust because you've now premeditated the marriage and adjustment process, so reentering with the intention of adjusting constitutes fraud.  Your trip to secondary has flagged you, so expect your application to be further scrutinized - do NOT lie to a CBP officer and commit fraud.  

[mytotoro 0]

19 minutes ago, mam521 said:

What do you do for work presently?  

 

 

I'm currently unemployed (but I have enough money to go for several years without work as I did pretty well in my previous job). I'm looking to do a tech startup and have been making a lot of sales pitches and calls ( I'm very cognizant of not breaking employment laws so it's all just relationship building and hypothesis testing - no money or transactions have happened).

 

21 minutes ago, appleblossom said:

Were you questioned on entry about the reason for your visit? Did they ask you at any point about any intention of staying?

I was pulled into secondary and they just asked about my pattern of being in the US. I was very transparent that I was just taking a break from work. The discussion never turned to marriage or potential of marriage. My gf and I were not planning to consider marriage until after next summer (partially due to the travel restrictions and just wanting our relationship to grow further).

 

1 hour ago, NorthByNorthwest said:

if you file I-485 (after getting married) your status changes to being in period of authorized stay once the I-94 expires. That's the gray zone of immigration where you are not accruing unlawful presence, and you can not leave the country until you have an approved AP/I-131. And of course you can't work either until you have an approved I-765.

 

Yeah, I finally found clarification on this : https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3#footnote-17. My interpretation is that if someone goes through AOS and it's approved successfully, this rule basically makes it so that the visa overstay did not break any laws. I wanted to do my own research but I'll probably find and retain a lawyer to assist with our process.

Quote

 

a noncitizen whose adjustment of status application is pending is in a period of stay authorized and does not accrue unlawful presence.

 

 

[appleblossom 2,479]

10 minutes ago, mytotoro said:

I was pulled into secondary and they just asked about my pattern of being in the US. I was very transparent that I was just taking a break from work. The discussion never turned to marriage or potential of marriage.

 

 

It's not whether they asked about marriage, it's whether you said at any point you'd be returning home. Did they ask you about your intentions for how long your stay would be, or leaving?

[mytotoro 0]

1 minute ago, appleblossom said:

It's not whether they asked about marriage, it's whether you said at any point you'd be returning home. Did they ask you about your intentions for how long your stay would be, or leaving?

 

Ah I see what you mean. And yes, I already had a flight out of the US (mid January). And I was clear about that and showed him the booking on my Air Canada app.

[mam521 2,062]

4 minutes ago, appleblossom said:

 

It's not whether they asked about marriage, it's whether you said at any point you'd be returning home. Did they ask you about your intentions for how long your stay would be, or leaving?

This.  You don't appear to have that strong of ties to Canada, so I'm not surprised you've been flagged.  I'd anticipate future issues.  

[pushbrk 12,876]

Sounds to me like you have a handle on it.  You didn't intend to marry and adjust status at the time of entry.  You have clearly been misusing the B visitor privilege, but if they let you in, I wouldn't worry about further issues with immigration, provided you don't leave the USA before you have advance parole.  Note that advance parole and EAD, are approved together and the EAD ID card makes reference to your advance parole.