What happens if my B2 Visa expires soon but I am in the process of applying for I-485?

[AmazonGoddess 0]

I traveled from Canada to USA on B2 Visa on Dec 21, 2016. Since a 6 months duration is granted, I would speculate my last day here should be June 20, 2017.

 

My husband lives in USA and initially we were just planning to submit I-130 after I leave. But after much research we discovered, I-130 takes a year to process and once I leave I cannot enter again/very risky if I attempt to enter before I am approved. 

 

So I decided to stay back and file I-130, I-485 and I-131. They say it takes about 60-90 days for I-131 Advanced Parole to be approved and documentation to be received. Now under my B2 visa I have only 60 more days. 

 

1.    What happens once my visa expires on June 20th and I have yet to receive my documentation for I-131?

 

2.    Also, is it legitimately 60-90 days or have there been cases it took longer? Because I would like to go back to Canada ASAP as I have a wedding reception to plan for in October.

 

3.    If after 90 days, I have yet to receive the advanced parole documents and I decide to travel back to Canada without them? What happens then? Do I just have issues reentering or does this cause problems with my pending I-130 or revoke it immediately?

 

4.    Let’s say I don’t submit anything at all. And I go back to Canada instead. The next time I attempt to enter the USA, do I have a risk of not getting a B2 considering I was already here for 4 months from Dec 2016 – Apr 2017? Or will I be granted a different visa as opposed to the B2 if I say my purpose of travel is to “visit my husband”, instead of “vacation or pleasure”? 

 

[Hypnos 6,576]

1) Nothing. 

 

2) 90 days is USCIS' processing goal, but it can take longer. 

 

3) Your I-485 would be considered abandoned and would eventually be denied by USCIS. The I-130 would proceed, but you'd then be pursuing an immigrant visa instead of obtaining a green card through AoS. 

 

You would probably not be allowed to enter the country again anytime soon without a visa. 

 

4) Generally you're required to spend more time outside the US then inside when entering as a tourist. If you left after four months it would then be advisable to spend at least four months in Canada before again attempting entry. It's possible you may get in earlier; it's also possible you'd just be denied entry and told to obtain a visa instead. 

[aleful 1,905]

hi

 

unless you have your AP, if you leave before having it, your case will be considered abandoned, and they won't let you in again, so you would have to go through consular processing in your country and the i485 closed, plus the waste to time and money

 

overstay is forgiven. did you also send in the i765 EAD work permit?

 

[agripa 100]

I would strongly recommend you consult a lawyer before filing for an adjustment of status; here's the official recommendation on VisaJourney :

Quote

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.
 

 

[AmazonGoddess 0]

11 minutes ago, aleful said:

hi

 

unless you have your AP, if you leave before having it, your case will be considered abandoned, and they won't let you in again, so you would have to go through consular processing in your country and the i485 closed, plus the waste to time and money

 

overstay is forgiven. did you also send in the i765 EAD work permit?

 

Yes, we are going to submit I-765 EAD as well. I am worried what if the AP travel does not come in 90 days because I do need to be back in Canada ASAP. 

Edited April 22, 2017 by AmazonGoddess

[geowrian 22,335]

I wouldn't say it's very risky to enter again with a pending I-130 petition or visa application, but you do need to show ties to return home.

 

1) Once you apply for AOS as the spouse of a USC, you are in a period of authorized stay pending a decision.

2) It's currently taking 90-120 days on average.

3) If you leave the US with a pending AOS application but without AP, your AOS application will be abandoned and you will need an immigrant visa. Travel to the US on an non-immigrant status/visa is unlikely as you have declared immigrant intent by filing for AOS. It's possible, but a very, very tough sell to say you won't file for AOS again if they let you in again.

4) Only way to know is to try, but a general rule of thumb is to spend twice as long outside the US as in it. CBP has the final say, but staying 4 months in the US and then wanting to come back soon after will probably appear that you are living within the US. Additionally, spending over 6 months in the US within a year has tax and healthcare implications, as well as implications for your Canadian status in terms of healthcare, IIRC.

 

[AmazonGoddess 0]

6 minutes ago, agripa said:

I would strongly recommend you consult a lawyer before filing for an adjustment of status; here's the official recommendation on VisaJourney :

 

We were already married on August 2016 in USA. We have two wedding reception coming up - one in October in Canada and another one in November in California.

 

My intention to travel this time was to visit for couple months. But I decided to stay back until April. Now, we are discovering if I go there is a high chance, I cannot enter USA

- in August for Bachelorette

- or in November for the reception in California

 

We were just with an immigration lawyer. And he recommends that I stay back and we file 130, 485, 131 and 765 altogether. 

Edited April 22, 2017 by AmazonGoddess

[Transborderwife 4,666]

Just now, agripa said:

I would strongly recommend you consult a lawyer before filing for an adjustment of status; here's the official recommendation on VisaJourney :

 

No need.  Lawyers over complicate things.  Your quote is about entering with intent which OP did not and intent was established on entry.  Null and void

[geowrian 22,335]

2 minutes ago, agripa said:

I would strongly recommend you consult a lawyer before filing for an adjustment of status; here's the official recommendation on VisaJourney :

 

That's irrelevant here. Intent was not to stay in the US, and intent is determined at POE. OP changed their mind after entry.

[geowrian 22,335]

8 minutes ago, AmazonGoddess said:

Yes, we are going to sunmit I-765 EAD as well. I am worried what if the AP travel does not come in 90 days because I do need to be back in Canada ASAP. 

Assuming it's not an emergency as defined by USCIS (doesn't sound like it is based on what you've stated), then your best options are either 1) not return to Canada until you have AP in hand, or 2) only file for the I-130 and then do the CR-1 visa route (and try to visit in the meantime).

Edited April 22, 2017 by geowrian

[Suss&Camm 2,213]

13 minutes ago, AmazonGoddess said:

Yes, we are going to submit I-765 EAD as well. I am worried what if the AP travel does not come in 90 days because I do need to be back in Canada ASAP. 

If that is a concern then I'd recommend going back and going with the original plan. There is no guarantee you will get AP in 90 days. Currently it's been taking 90-130 days for ppl. One year might sound a lot but many ppl here on VJ have and are going through the same thing.

[AmazonGoddess 0]

12 minutes ago, geowrian said:

I wouldn't say it's very risky to enter again with a pending I-130 petition or visa application, but you do need to show ties to return home.

 

1) Once you apply for AOS as the spouse of a USC, you are in a period of authorized stay pending a decision.

2) It's currently taking 90-120 days on average.

3) If you leave the US with a pending AOS application but without AP, your AOS application will be abandoned and you will need an immigrant visa. Travel to the US on an non-immigrant status/visa is unlikely as you have declared immigrant intent by filing for AOS. It's possible, but a very, very tough sell to say you won't file for AOS again if they let you in again.

4) Only way to know is to try, but a general rule of thumb is to spend twice as long outside the US as in it. CBP has the final say, but staying 4 months in the US and then wanting to come back soon after will probably appear that you are living within the US. Additionally, spending over 6 months in the US within a year has tax and healthcare implications, as well as implications for your Canadian status in terms of healthcare, IIRC.

 

I'm a Canadian citizen. 

 

Could you please explain this a bit more in terms of implications on Canadian status in Healthcare, IIRC?  Is the implications the same even if I do submit I-485 and I am required to stay until I get AP? 

 

 

[AmazonGoddess 0]

Just now, Suss&Camm said:

If that is a concern then I'd recommend going back and going with the original plan. There is no guarantee you will get AP in 90 days. Currently it's been taking 90-130 days for ppl. One year might sound a lot but many ppl here on VJ have and are going through the same thing.

Yeah it wouldn't be a problem normally. Except, I have to be in Canada for the wedding reception in October held by my parents. As well, I would have to be back in California in November for another wedding reception held by my husband's family. 

[geowrian 22,335]

5 minutes ago, AmazonGoddess said:

I'm a Canadian citizen. 

 

Could you please explain this a bit more in terms of implications on Canadian status in Healthcare, IIRC?  Is the implications the same even if I do submit I-485 and I am required to stay until I get AP?

I'll defer to other Canadians for specifics, but my understanding is that you must be physically present in Canada for 6 months of the year in order to qualify for the Canada Health Act coverage:

http://www.hc-sc.gc.ca/hcs-sss/medi-assur/faq-eng.php

"Most provinces and territories also require residents to be physically present 183 days annually, and provide evidence of their intent to return to the province. "

 

The implications apply to anybody outside Canada for 183 days (barring certain exceptions that are beyond my understanding, but US immigration aspects are not one of them).

Edited April 22, 2017 by geowrian

[Suss&Camm 2,213]

Just now, AmazonGoddess said:

Yeah it wouldn't be a problem normally. Except, I have to be in Canada for the wedding reception in October held by my parents. As well, I would have to be back in California in November for another wedding reception held by my husband's family. 

Unfortunately wedding plans is smth you have to plan around immigration and not the other way around. There is no guarantee that you will be able to do that. You might end up spending tons of money on two receptions and only be able to be present for one of them.