Left (and RETURNED) without AP but now have AOS interview

[English Muffin 59]

OP, you might want to consider asking your question here http://britishexpats.com/forum/forumdisplay.php?f=57

You don't need to be British to participate and there are some very knowledgeable people on that board.

[EstebanTrabajos 7]

Answering the OP question...

YES, you are in BIG trouble, they will notice you have a NEW I-94 and record of your latest entry coming from Canada, besides the point that entering from Canada or Mexico didn't make any difference...

Besides I'm guessing you used your visa weaver to enter the last time huh? that is visa fraud since you entered with the intention to immigrate permanently not as a temporary visitor.

Time to contact an immigration lawyer

Edited March 3, 2009 by TävôLuDô

[TonyDanza 0]

OK thanks guys!

I will goto the interview, not offer any info, but answer all truly and honestly. That is what I had planned anyway unless I found out different here.

To the above poster, as stated in my previous post, I did not commit visa fraud as I entered on a tourist visa with no intention of ever getting married. It had not even been discussed. It came up on a US holiday my wife and I took after I overstayed my tourist visa (minor offense for Canadians) and we did it spontaneously. An oportunity raised its head, the moment was right, we were madly in love and had been together 5+ yrs, and we just did it spur of the moment Vegas style. This was NOT visa fraud. Just sometimes things in life happen like that. In this case they did. But enough of that.

Also as a Canadian I do not have an i-94. Even the last time I entered I never recieved one also. This time I filled it out on the plane and then at customs they took it from me. The only record I have of an entry exit is a stamp in my Mexico issued (through a Canadian embassy) passport. So no i-94 for Canadians.

Anyway, guess you have all helped enourmously. Anyone know what happens if I dont get my AOS. Do they just send me a letter to please leave the country to which I leave and then am able to re-apply for a spousal visa? Just wondering the what if's. Thanks guys n gals! Your 10 sec of help on replying to my questions has been really appreciated.

[lucyrich 19]

To the above poster, as stated in my previous post, I did not commit visa fraud as I entered on a tourist visa with no intention of ever getting married.

You don't seem to understand the meaning of visa fraud as it relates to entering on a tourist visa.

Whether you intended to get married isn't a major issue, but whether you intended to leave at the time you stated you would leave is a very serious issue.

Any time you enter as a tourist, either via a tourist visa, the visa waiver program, or as a Canadian visitor (Candians are allowed visa-free entry under some circumstances, very similar to the VWP but under a slightly different section of the law), you are acknowledging that your stay in the US is temporary and that you intend to return home at the duration of your stay. The officer is trained to ask you two questions: "What is the purpose of your trip?" and "How long will you be staying?". If you answer either of those questions in a way that does not reflect your actual intent, it is visa fraud, and carries a lifetime ban.

When you entered the first time, perhaps you didn't intend to marry and adjust status.

But what were you thinking when you re-entered the second time? If you're going to tell us you intended to go on and catch your connecting flight to Canada, then how do you avoid that you intended to abandon your Adjustment of Status? If you're going to tell us that you intended to stay in the US to attend the AOS interview and see what would happen, then you committed visa fraud at the time of entry.

[Kez/JWolf 6]

To the above poster, as stated in my previous post, I did not commit visa fraud as I entered on a tourist visa with no intention of ever getting married.

You don't seem to understand the meaning of visa fraud as it relates to entering on a tourist visa.

Whether you intended to get married isn't a major issue, but whether you intended to leave at the time you stated you would leave is a very serious issue.

Any time you enter as a tourist, either via a tourist visa, the visa waiver program, or as a Canadian visitor (Candians are allowed visa-free entry under some circumstances, very similar to the VWP but under a slightly different section of the law), you are acknowledging that your stay in the US is temporary and that you intend to return home at the duration of your stay. The officer is trained to ask you two questions: "What is the purpose of your trip?" and "How long will you be staying?". If you answer either of those questions in a way that does not reflect your actual intent, it is visa fraud, and carries a lifetime ban.

When you entered the first time, perhaps you didn't intend to marry and adjust status.

But what were you thinking when you re-entered the second time? If you're going to tell us you intended to go on and catch your connecting flight to Canada, then how do you avoid that you intended to abandon your Adjustment of Status? If you're going to tell us that you intended to stay in the US to attend the AOS interview and see what would happen, then you committed visa fraud at the time of entry.

I have to agree, The first time you entered you say you had no intent to remain and file for AOS but when you entered the US last week you clearly had intent to remain. So yes you have committed Visa fraud, now if you will get away with it I can not say, but remember that if you do get away with it and get approved at anytime down the road USCIS could find you misrepresented yourself and revoke any immigration benefits you have received including citizenship.

You need to discuss this with a lawyer or you could be doing something that could effect you for the rest of your life. You made a foolish mistake in leaving the US, Please don't make another one by not dealing with this major issue in the proper manner.

[Old Dominion 26]

It's one of those rare cases for which a lawyer is REALLY needed. USCIS is good about overlooking something like this that took place years before an AOS application was filed. But this is very recent, and you had the pending AOS interview.

[EstebanTrabajos 7]

I agree with the 3 previous posters,

Visa fraud is not related solely to marriage, it means you "entered" the country fully knowing you were going to do something completely unrelated to the visa's main purpose.

For example,

Get married with a tourist visa

Get married with a student visa

Study with a tourist visa

etc etc

Edited March 3, 2009 by TävôLuDô

[EstebanTrabajos 7]

To the above poster, as stated in my previous post, I did not commit visa fraud as I entered on a tourist visa with no intention of ever getting married. It had not even been discussed. It came up on a US holiday my wife and I took after I overstayed my tourist visa (minor offense for Canadians) and we did it spontaneously. An oportunity raised its head, the moment was right, we were madly in love and had been together 5+ yrs, and we just did it spur of the moment Vegas style. This was NOT visa fraud. Just sometimes things in life happen like that. In this case they did. But enough of that.

Ahhh you JUST re-entered the country pal, you are now in a whole new situation than when you FIRST entered.

Why do you think that AP exists?

IF you didn't have an I-94 before, voila! you have it now with a date showing that you entered w/o an AP and after you filed for AOS.

Edited March 3, 2009 by TävôLuDô

[TonyDanza 0]

OK understanding your point. I did missunderstand thinking that it was visa fraud based on a missrepresentation the first time regarding the marriage. I did overstay my first visa which I had not planned. People told me that was probably ok to get overlooked, but yes now I have this recent exit & entry. I had been abiding by the laws the previous 5 years before this each summer coming for holiday and then returning home. I just got carried away with my then girlfriend (now wife) and remained longer than I should have the final time. We also had not planned on the marriage as I said.

Then this time, this last re-entry which was obviously a horrible mistake and awful decision, perhaps the most regretable of my life as it looks thus far, the BCP officer asked me how long I intended to stay in the US. I guess that is what you are reffering to here as the primary 'fraud' correct? I didnt lie however as I never said I was leaving the next day on the continuing flight. I said not sure but going to visit a few people and then after a month or so, head back to Canada as I figured I would if I either got a green card or didn't. I guess I looked at it as shades of grey. I didnt lie, I just didnt offer forth all the info I had and I also answered truthfully all the questions he asked. I know, I know, but I was staring down a full on refusal and AOS claim abandon if I didnt show for the interview, so I played it as best I could at that point. Either way, I thought I am going to head back to Canada after this interview unless they tell me to stay again, (like a stupid dog I will learn the command the second time that's for sure.)

I know this all sounds so totally crazy and I even appreciate you're all suggestions and ridicule but I did what I did. Sometimes people just snap and do things they shouldn't have when they're emotions and family are involved. Clearly I messed up big time and totally regret it, but whats done is done thus far. People have different cracking points, and that was foolishly mine.

I apologize to all who follow the gameplan to a tee, and abide by all the rules. I was a stupid kid and made a stupid choice and I guess it reflects badly on us as a whole (immigrants).

Moving forward, I am trying to salvage what little tiny window of opportunity I have left to life with my wife and earase my bad choices. I appreciate your help in doing that.

Edited March 3, 2009 by TonyDanza

[Minya's wife 24]

Moving forward, I am trying to salvage what little tiny window of opportunity I have left to life with my wife and earase my bad choices. I appreciate your help in doing that.

Your whole emigration journey so far has been characterized by 'not following the rules' and either a gross lack of understanding of just what those rules are, or an equally gross disregard of them. Either way, you really need legal assistance before you do anything further....before you head in to your AOS interview. Given that your initial adjustment of status was done from an overstayed tourist visa....and now you've got this leaving and re-entering without AP thing, you are not really showing a willingness to follow the rules (at least on paper you're not). Such a totality of circumstance may be looked at negatively by the interviewing officer.

I would not follow your initial game plan of

I will go to the interview, not offer any info, but answer all truly and honestly. That is what I had planned anyway unless I found out different here.

You need legal assistance if you hope to sort out the mess you've created....and have any hope at salvaging that little tiny window of opportunity to life in the US.

[LaL 418]

the BCP officer asked me how long I intended to stay in the US. .... I said not sure but going to visit a few people and then after a month or so, head back to Canada as I figured I would if I either got a green card or didn't. I guess I looked at it as shades of grey. I didnt lie, I just didnt offer forth all the info I had and I also answered truthfully all the questions he asked.

That is a bold faced lie no matter how you slice it.

Edited March 3, 2009 by LaL

[Kez/JWolf 6]

I wish I could find the link to the post about the elderly couple who entered the US years and years ago and told a lie to the CBP officer. Now years later the wife was getting her Citizenship and the truth came to light. They had lied all those years ago, they are now awaiting their Deportation Hearing, While their USC children and grandchildren fight to try to stop them being sent back to a country they have not lived in for decades.

So even if you somehow manage to get approved for AOS you still have to remove conditions and then if you choose to file for citizenship, during both of these processes you will be asked about trips outside the US, you can not lie as they have a record of any entry you have made where you were issued a I-94, so they will see that you misrepresented yourself on your last entry.

You owe it to your wife and child to sort this out now. Seek legal advice before you make an even bigger mistake.

[DanielParul 50]

I followed your entire previous thread and VJ members advised you to not make this mistake of entering the US again without a proper spouse visa. You did. I just have a feeling that you will be back here after your AOS interview asking for advise on what to do since it was denied or whatever. Please consult an immigration attorney as this situation is beyond VJ. Hoping it all turns out right for your wife's sake.

[lucyrich 19]

I didnt lie however as I never said I was leaving the next day on the continuing flight. I said not sure but going to visit a few people and then after a month or so, head back to Canada as I figured I would if I either got a green card or didn't. I guess I looked at it as shades of grey. I didnt lie, I just didnt offer forth all the info I had and I also answered truthfully all the questions he asked.

You do need very good experienced legal advice, and you need to FOLLOW it.

In the first thread I remember, you said you were advised not to leave the US while AOS was pending, but had disregarded that advice and left anyway, and you wanted advice as to how to fix it. People advised you not to return to the US. Now you say you disregarded that advice and returned, and want to know what you can do to fix it.

Remember, immigration law isn't about whether or not you're a good person. It's not about your morals, or whether or not you can have a clear conscience. It doesn't always make sense. But it's about whether or not your specific circumstances allow you to get the benefits you're seeking under the existing laws. You have to learn the arbitrary rules and follow them, even when they don't make sense. There are plenty of unforgiving traps in immigration law. Sometimes people can screw their lives up horribly forever by doing something that I would consider the moral equivalent of jaywalking, or driving 56 mph in a 55 mph zone. The punishment doesn't always fit the crime. That's why it may help to have a lawyer there to explain the nuances of the rules to you, and help explain to you what may happen if you choose another route.

To have a finding of misrepresentation in immigration terms, you do not necessarily have to be guilty of telling an outright lie. Merely concealing or misrepresenting a material fact is enough. It's a fairly broad thing. And historical events may come up at any future time during the process.

Also, in immigration matters, you have the burden of proving your eligibility. It's not like a criminal trial where they have the burden of proving beyond all reasonable doubt that you lied. You may have the burden of proving via a preponderance of the evidence that you did not misrepresent or conceal a material fact at any time during any of your dealings with immigrations officers.

Since it's up to you to prove your representation was accurate, the fact that you have no record of exactly what was spoken is not in your favor.

[geezer 1]

You may want to read up on removal proceedings and be prepared for the possibility of being detained at the AOS interview.

If it was me I would not proceed further without legal representation.