Complicated Adjustment of Status, advice needed

[MaBurnie 0]

I'm new here and desperate for help/information/advice. I'll try to be brief in my explanation - if any additional info is needed, please ask!

I'm a citizen of the United States. I met a man in Toronto (via online dating) last year and we fell in love. I visited him, he visited me several times - in March, he was laid off from his job and we decided to take advantage of that situation and have a longer visit to "test" our compatibility. I drove and picked him up March 9, 2014 and returned to the US. When we went through, he told the border agents that he was going to be visiting for a few weeks, which was our intent. Well, as fate would have it, I ended up getting pregnant that first week he was in the US. I found out at the end of March. We then began to discuss long-term options and we decided that we wanted to get married. (He had already moved his stuff out of his apartment into his sister's house outside of Toronto in March so there was no immediate need to go back to Canada.)

We intended to move to Windsor, Ontario - I could do a job transfer to my company's office in Detroit and learned what paperwork I would need to fill out to be legal. Then two months later I find out my company decided they were NOT going to pay for my move. Between the costs to move, the costs of immigration paperwork and the stress of having to cross an international border in order to deliver our child, we decided to then pursue permanent residence status for him in the US. We still intend to move to Canada in about a year.

We got married in the middle of June. The pregnancy is progressing wonderfully and I have a due date for early December. My husband's status, visitor, is due to expire in approximately 3 weeks. We have encountered so many delays and questions while filling out the forms - the i485 especially. First was the question of his i94 number. After visiting our local immigration office, multiple phone calls and online searching over the last 6 weeks or so, we FINALLY got an answer this morning that he can leave that number blank. Because we entered through a land border, no i94 is issued to a Canadian citizen entering as a visitor. Great, we thought.

Then the real headache - his criminal history. Part 3, question 1b: "Have you EVER, in or outside the US been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations?" 32+ years ago, he committed some vandalism/destruction of public property and a few years before that had been "detained" for a minor drug offense. (I'm unclear on the legal terms, thus the quotes.) The vandalism charge was dropped and the drug offense was thrown out for lack of evidence. We feel he needs to answer "Yes" to this quesion. The problem is in finding the court records to document the charges. Per the i485 instructions we must file the application with the following evidence: "An original official statement by the arresting agency or applicable court order confirming that no charges were filed." and/or "An original or court-certified copy of the complete arrest record and/or disposition for each incident."

He called the court where these charges were processed and was told he would need exact dates in order to look up the non-digitized records. We think we can figure out how to do that, though if anyone has advice, please let me know. The problem is the timing. Again, we have 3 weeks until he is past his 6 month limit. The information we can find says the process to find these archived files will take around 4 months.

Now, 4 months ago would have been a great time to have started this process, but 4 months ago, we weren't even married, let alone sure of what we were going to do. And in the intervening time, we were pursuing Canadian residency for ME.

My big overly-simplified question is - what to do?! Further complicating things is that I have a house to sell in the US. I am tempted to list the house, take the money we were saving for his immigration forms and rent a place in Windsor for him to live at. I would then fill out forms I needed to and hope that all this can get settled before I go into labor. I'm afraid that he won't be able to be at the hospital (i would have to deliver in Detroit per my medical insurance) because he will have used up his alloted 6 months as a visitor.

I'm so frustrated and stressed - I know what we have chosen to do is not the most straightforward nor recommended way of going about things, but I also know we have not done anything illegal. I also feel (morally?) that we have actually done the right thing by forming a legal family unit.

Any advice on how to stay in the US legally? Any insight on completing the criminal history portion of the i485? Needless to say, I really do not want to be separated from my husband and I want to comply with all laws. Any advice is appreciated. Again, if I have not provided needed info, please ask.

[ValerieA 350]

Ugh. I don't know what to tell you on getting your records, because I was charged & convicted, so mine were straightforward to obtain. I will tell you that overstay is overlooked for the spouse of a US citizen when AOSing, so I wouldn't stress too much over that - but he can NOT leave the country until he at least gets his AP (about 90 days after filing) or his green card (3-5 months, typically, if all goes smoothly). NO trips back to Canada or the process will be abandoned.

The one little thing I will mention is that, if there is overstay, it could come back to bite him in the butt if you do move back to Canada. He would no longer have a green card, and by the timeline you give, he wouldn't be eligible for citizenship yet (3 years after approval of green card). So, when crossing into the US for a visit, it will show up on his record and the border guard may give him a hard time - and if it is longer than 180 days but not longer than a year, he would have a ban of 3 years from when he left the US. I have overstay on my record, so I am planning on getting citizenship before we move back to Canada.

Oh, I guess I should actually say it - you are fine to AOS, it is perfectly legal. But yes, you will need those records. Get multiple copies, just in case you don't leave the US and need to remove conditions & get him citizenship in the future. All steps require certified copies.

Congratulations on the marriage & the baby!

[Harpa Timsah 13,258]

You could sent the AOS without the records and wait for the Request for Evidence (RFE) they will send you for missing paperwork. But, this is risky because there is a time limit on the RFE and if you fail to provide the right stuff in time, they can deny the case. But, it is something to consider if you feel really pressed to send off the stuff now. Much better if possible to get the records expedited to you and file the package with everything (then you also get a chance in case the paperwork isn't exactly right).

Best of luck.

[MaBurnie 0]

To ValerieA: Thank you for your reply! I read your response last night and actually relaxed a little! Your suggestions make a lot of sense and I'm glad you raised the issue regarding our timeline of moving to Canada. We had a discussion this morning about how we most likely will need to stay in the US for a few years. (Then he tells me he wants to move to NYC, but I digress haha.) Question - what does "AP" mean?

To Harpa Timsah: And thank you so much for your reply too. We considered doing that, but I'm concerned that might close too many doors, so to speak, if we needed leniency later. My husband is making calls today to see about expediting the search for his records - based on what he hears on how long it should take, we'll have to weigh the risks of delaying the application and/or submitting an incomplete application.

Again - thank you both. This info has helped us a lot already! Now let's hope he finds an empathetic court clerk willing to dig through the archives and overnight his files to us!

[kehills 217]

I am tempted to list the house, take the money we were saving for his immigration forms and rent a place in Windsor for him to live at. I would then fill out forms I needed to and hope that all this can get settled before I go into labor.

FWIW, it's extremely unlikely that a CR1/IR1 would be processed and he would be able to move to the US as a resident in the time frame that you're talking about. It's better for you to figure out how to adjust status from within the United States; whether it's rushing the paperwork you need now, or filing and waiting for the RFE that Harpa mentioned, and getting that returned in time. (In other words, definitely get the paperwork, even if you don't plan on sending it in with the AOS package.)

Edited August 19, 2014 by kehills

[MaBurnie 0]

FWIW, it's extremely unlikely that a CR1/IR1 would be processed and he would be able to move to the US as a resident in the time frame that you're talking about. It's better for you to figure out how to adjust status from within the United States; whether it's rushing the paperwork you need now, or filing and waiting for the RFE that Harpa mentioned, and getting that returned in time. (In other words, definitely get the paperwork, even if you don't plan on sending it in with the AOS package.)

Thanks kehills - I think my post was a little confusing; I meant fill out paperwork for ME to immigrate to Canada (essentially abandoning the idea of us living in the US for now). Your advice makes sense though - and staying in the US is definitely our goal. Thanks again!

[ValerieA 350]

AP in this context is Advance Parole - it lets your husband leave the country and be allowed back in when he returns - basically advance permission to re-enter. I never even applied for it since I had overstay, although theoretically now that shouldn't be a problem.

[genddob 10]

The expiration of his visa is irrelevant because overstays are forgiven for the spouse of a USC. Also as soon as you file the AOS he is legally within status while it is being adjudicated.

Having said that, I'd focus on getting the court records and file the AOS when you have all your ducks in a row.

[kettlefish 10]

As genddob says marriage to a USC is special exception that forgives overstays. However, once he has overstayed, he MUST NOT UNDER, ANY CIRCUMSTANCE LEAVE THE US until he has the greencard, otherwise he will likely be barred for 3 years.

If that happens you'd have to move to Canada if you wanted to be together with the baby.

Another option would be for him to leave now, and then re-enter at a later date once you're ready to file the application. It's always better to file I-130 from within the US.