My wife was planning on returning to Canada after our baby was born but fractured her pelvic bone in the process. She is out at least 6 months and they don't want her traveling for a few months but her 6 month per calendar year stay would expire. In fact, the doctors don't want the baby traveling for a few months either. The K3 process was started while she was here.

A few questions

1) Could she cancel her K3 application and file for Adjustment of Status from here?

OR

2) Could she apply for a "Visa" extension and continue the K3 process or would that raise a red flag? This way, she will return to Canada when she recovers.

Thanks for your input.

If she entered with a visa, which visa category? If no visa, please indicate.

Canadians can visit the US for up to six months of each calendar year without any visa. He's put "visa" in quotes because it's only a theoretical thing rather than an actual visa.

To the OP - I have never heard of a similar experience, but logically it seems you could do it as she did not have intentions to immigrate upon her entry but obviously there are complications she intended to immigrate after gaining the K3 visa. I think for your case a lawyer, or at least a consultation with one, would be a good idea. I'm really sorry to hear about your situation - I hope your wife and baby are totally well soon.

I think you might want to contact an immigration attorney to pursue your options. She didn't enter with intent to stay and is only staying because of her health and the baby's health (and you have doctor's notes/letters backing it up).

I don't know if she could extend her 6 months though... but yes, a consult with an attorney is probably in order.

I am aware of the non visa requirements for Canadians but did not wish to presume there was no visa when there could be. I agree with consulting an attorney. This is an unusual situation but certainly not unheard of. I expect there is an appropriate procedure for dealing with it. Perhaps some sort of waiver.

Okay, I did find that one can file an I-539 to extend a B2. While Canadians don't always get their passports stamped with B2, sometimes they do and that is the category that they are admitted under as a visitor. They don't however normally get issued an I-94. The I-539 is $300 and who knows how long it takes to get processed.

For the OP, see what an attorney has to say and good luck!

Thanks for your input and concern. Her passport was not stamped, and no I94 given, typical entry for a Canadian I guess, with the presumption that they don't stay more than 6 months per calendar year.

Now, are you all suggesting that we hire an attorney and apply for an adjustment of status or to extend the Visa and continue with the K3?

Thanks for your input and concern. Her passport was not stamped, and no I94 given, typical entry for a Canadian I guess, with the presumption that they don't stay more than 6 months per calendar year.

Now, are you all suggesting that we hire an attorney and apply for an adjustment of status or to extend the Visa and continue with the K3?

See an attorney for a consultation and basically see what they say. They will let you know which is the right way to go.
Also what about an infopass appointment with the USCIS? See what they say.

Yes to what Kim&James said - basically, see what the lawyer says. But hopefully there will be a way for her to adjust status under these circumstances as there was no intent upon this entry to stay without returning for the visa. Even having to return to Canada for the K3 visa interview and waiting for it to be processed would be hard for her until she has fully recovered.

There was a couple on VJ a couple of years ago who had a very simmilar situation... wife was pregnant and came to visit her husband in the US from canada.... while here she went into prem labour and was advised not to travel, also the baby was still in the hospital.... they took advice from an immigration lawyer and were able to file for AOS and were approved with no problems....

I would make an appointment with a Immigration lawyer and see what he/she has to say....

Good Luck

Kez

Sounds really promising for them then.

Hello again, after speaking to two lawyers, they are both suggesting I go the AOS route. My question is, can't I file the paperwork myself instead of wasting thousands of dollars on them to file the AOS paperwork for me? I can see if they were representing me in court or something or attending the interview, neither of which they are doing or do you still feel it is better I spend the money?

Also, they would not tell me how to cancel my current I130/I129 K3 paperwork that's currently pending, do any of you know how I can cancel those applications?

Thanks again

Oh yeah, I made an Infopass appointment, maybe I can cancel the applications there?

Those are petitions, not applications. I think you'll have a much better idea how to proceed, once you have your infopass appointment. You need an approved I-130 to complete the adjustment of status. It's the I-129F you would withdraw at some point. I don't see any urgency in doing that. It will be interesting to hear your report after the infopass appointment.

You do NOT want to cancel the I-130 it is needed for AOS as well. The I-129F maybe needs to be cancelled though I am not 100% sure because there are those who just don't follow up the I-129F after it's approved. You may want to ask your lawyer again about the I-129F and whether you need to contact USCIS to cancel it and on what basis. I'm curious why the lawyer didn't tell you want to do about your existing petition.

If you feel confident you can file the AOS by yourself, then by all means but your situation is a little different than most AOS cases. Your wife never had any intent to stay but now can't leave for awhile because of medical issues. Hopefully some others will chime in. I think if it were me, I'd have a lawyer since the situation changed mid-petition.

But the current I130 shows that she was going to be in Canada to receive the visa (whether CR1 or the K3), I would think that would have to change to the local office here in the US, thus I was thinking I would have to re-file the application.

The lawyers just sounded like they wanted the fees and they would handle it, no details on how they would go about canceling the current petitions...

Someone correct me if I'm wrong, but I don't think it matters what it said on the I-130 as to where you're going to apply. For AOS purposes there needs to be a pending or approved I-130, you don't need to cancel this one and file another one. The purpose of the I-130 is to establish the relationship between you and your wife and to make a visa number available to her when approved (someone clarify if I didn't get that 100%).

Since USCIS started retaining approved I-130 for those who also filed the I-129F, USCIS is most likely going to assume that you're going the K3 route and using the I-130 for AOS anyway (that's what my I-130 approval notice says).

The above agrees with my understanding completely. I'm pretty sure this and more will be cleared up at the infopass appointment.

OK, I spoke with two lawyers and they don't want me to talk to USCIS, they want me to cancel my appointment. Not only that, but all they told me is they would handle the paperwork with canceling the K3 and explain the reason behind the change via a letter. They would not detail as to how they would change the I130 petition to be a US location for Visa pickup as opposed to a Canadian consulate as listed on the form. I hate being totally in the hands of lawyers. I have nothing to hide, what could I say wrong to USCIS?

You/they don't have to change the I-130 to reflect a U.S. location as you do not interview in the U.S. based on an I-130 alone. Your wife willl interview for permanent residency with a filed I-485. All an approved I-130 does is grant an immediately available visa number to be used for either consular processing for a CR-1/IR-1 (first processing through the NVC) or for adjustment of status (I-485). There is no visa pickup in the U.S.

There are many people who put down a consular post in their I-130 petition only to change their mind by abandoning processing at the NVC, file for and enter on a K3 and file for AOS instead. The fact that they put down a consular post on their I-130 was of no consequence.

If the lawyers are not answering your questions and explaining everything clearly, you may wish to seek different legal counsel.

Hope this helps!

What the lawyers have said leaves a bad taste in my mouth. If I were you, I'd keep the appointment and file AOS yourself or look for a better lawyer.

It's unclear to me where the thoiught "change the I-130 petition to be a US location for visa pickup" came from. If a lawyer said that, I think he's full of beans. If it was your thought, then you simply asked the wrong question, IMO. Visa's are issued at Consulates outside the US only and are used to enter the USA. You are already here. If you had a visa, you'd need to leave the US and re-enter to use it. I think what the lawyers would be attempting is to arrange for you to adjust status to permanent resident instead of interviewing for a visa, or possibly just arranging a longer stay on emergency humanitarian grounds, so you can interview later. A letter would likely be the first step in either of those cases.

If I were you, I wouldn't be happy with the way either lawyer explained their plan to you.

OK, here's what I was told from my Infopass appointment.

The first guy at the window was unsure as to how to go about canceling a K3 so he got someone else from the back.

Basically, I need to do an AOS but the procedure to do that is complicated.

The 485 needs to be filed with either an approved 130 NOA2 notice or a brand new 130 application at the same time.

The problem is I cannot have two 130 petitions in at the same time.

Option 1:
If I wait for a NOA2 on the 130 based on my 7/15/07 NOA1 date, my wife will be out of status as her 6 month visitor status will expire in November. He initially was thinking of letting her visitor status expire (which I was shocked) because he said there is often a 180 day grace period for overstays (never heard that before). That way we wait for a NOA2 with the current 130 petition and then file a 485. We would write USCIS and request the 129 K3 be withdrawn.

Option 2:
The other option is to write USCIS requesting the 130 petition and 129 K3 applications to be withdrawn and start all over with a brand new 130/485 AOS application. In the end, the officer thought this was the best route.

Overall, the lawyers and even the first USCIS officer were unsure as to how to pursue this, well, the lawyers appeared sure but I don't think they knew exactly the proper way to do this. I am happy I went and did not cancel the INFOPASS appointment.

What do you guys think about Option 2?

Thanks for all your great advice and support.

BTW, the USCIS officer did not like the fact that a Canadian consular post on line 22 was listed on the current 130 application, he said they would have to request the documentation from the consulate to be sent to the local office which could be a problem.

I was wondering where you were!



Did they explain why you couldn't use your pending I-130 NOA1 with the I-485? There are a number of people here who entered on a K3 without an approved I-130 that used their pending I-130 with their I-485. I'm just curious as to their reasoning for cancelling the I-130 and starting with a new one.

As for the paperwork at a consular post... your I-130 is still pending, correct? Which means it's still at USCIS. It doesn't even get to the consulate until after approval and after months of processing at the NVC.

Overstays do tend to be forgiven upon marriage to a USC. I like option two but withdrawing both petitions seems somewhat cumbersome. I would think allowing both petitions to go through to NOA2 stage would cause your I-130 to be held for AOS anyway. (Option 1 above) I'm not sure the local USCIS offices are aware of this because it doesn't impact them directly. You could then withdraw the I-129F and file for AOS. You really shouldn't have too much trouble getting AOS approved, since the same local USCIS office pretty much recommended the same. I might go back to them with this proposal and see what they think of it. Show them this and see if it changes their mind about option 1.

http://www.uscis.gov/files/pressrelease/PN_i-129f.pdf

I think they can enter on a K3 without an approved 130 but they made it clear that for the 485, they needed an approved 130 or a fresh application with the 485. Like you, I thought a NOA1 would have been enough and I asked but he said no.

Even if the 130 is still at USCIS, he seemed concern that it will be a problem down the line when it gets to the consulate, then requested to be forwarded to the local office.

Interesting that you said that the local USCIS office might not be aware of that, it seems at times yesterday that the left hand of USCIS does not know what the right hand is doing.

If we allow both petitions to go through to the NOA2 stage, which is what was initially recommended, my fear is she overstays and it's not forgiven at the interview.

Thanks for the link, it states "USCIS will retain approved Forms 130 for retrieval upon the beneficiary's eventual application for adjustment of status, unless the petitioner clearly states on form 130 that the beneficiary will use the consular process." That's where I think the problem is (unless I am not understanding this), I clearly stated on line 22, consular process.

On line 22 of the 130, I filled out the part stating:

"If your relative is not eligible for Adjustment of Status, he or she will apply for a visa abroad at the American consular post in:"

I filled in "Montreal, Canada". Was that not the right thing to do on a 130 petition for and then an eventual K3 application?

Or did that notify USCIS that we are going the CR1 route and not entering on a K3 visa and then doing the adjustment of status?

That is the normal way to fill out the I-130. Those who have done it that way and later filed the I-129F have been having their I-130's held. Evidently "clearly indicate" means something more than listing the name of a Consulate. I've been recommending special notes in red ink saying "Consular Processing Please" etc. They are taking the filing of the I-129F as indication you will use the K3 and adjust status later.

I am thinking that you are with me still in withdrawing the applications to avoid going out of status.

I am still confused as to why a NOA1 from the current 130 isn't enough to file with the 485....

Well, I think it is sufficient if sent along with a letter explaining the medical inability to travel.

I think it is sufficient as I've seen others do it here before (re: using the I-130 NOA1 with the I-485).

Yes you can do AOS without waiting for the I-130 to be approved.... you just send a copy of the I-130 NOA1 along with your AOS packet.... both the AOS and the I-130 will be approved at your AOS interview.... this is what we ended up doing as we had sent in the I-130 first before we found out I could stay in the US and file for AOS. so we sent a copy of the NOA1 along with the AOS packet... we too had put that we were going to use a consulate office outside the US... it was not a problem...

Kez