Am I crazy?

[rexalite 0]

So I've posted a bit about my situation. I'm scheduled for an interview for my CR1 Visa. I got married to my USC husband in July of 2007. We visited back and forth until September of 2007, when I entered the US with the plan of returning to Canada for my job in December. But in October, I had a complication with my pregnancy and was unable to travel. I was on bedrest for 6 months, then had my baby in April of 08. I am still in the US - 20 months now. The rules seem to be that I am not unlawfully present as my passport wasn't stamped on entry, therefore there is no overstay. Therefore, no bar, no waiver needed.

I haven't worked or anything. That is the only complication of our visa situation. I have consulted 2 lawyers about my situation. First lawyer, NY lawyer, says you need to adjust status, don't leave the country, terrible things will happen, Montreal consulate staff will boondoggle the application and it will take 9 months or so to sort it out. NY lawyer says I'll do your AOS for 7500 bucks. Montreal lawyer says go to the interview, there will be no problems, you havne't done anything wrong, it will be fine. Montreal lawyer says I'll come to the interview with you for $1000.

I can't decide what to do! I really want to go to Montreal to get it over with. I have used the search function here and can't find any case where a Canadian was denied for an overstay like mine. I don't want to adjust status as I am really nervous about being landlocked in the USA for any length of time as I have aging parents in Canada. NY lawyer said because of the overstay issue I wouldn't be able to use advance parole. I hate to feel that I can't complete the CR1 process just because I am afraid the consulate staff will make a mistake and cause lots of hassles.

So am I crazy to think about leaving the US? I can't make up my mind!

[Dakine 26]

So I've posted a bit about my situation. I'm scheduled for an interview for my CR1 Visa. I got married to my USC husband in July of 2007. We visited back and forth until September of 2007, when I entered the US with the plan of returning to Canada for my job in December. But in October, I had a complication with my pregnancy and was unable to travel. I was on bedrest for 6 months, then had my baby in April of 08. I am still in the US - 20 months now. The rules seem to be that I am not unlawfully present as my passport wasn't stamped on entry, therefore there is no overstay. Therefore, no bar, no waiver needed.

I haven't worked or anything. That is the only complication of our visa situation. I have consulted 2 lawyers about my situation. First lawyer, NY lawyer, says you need to adjust status, don't leave the country, terrible things will happen, Montreal consulate staff will boondoggle the application and it will take 9 months or so to sort it out. NY lawyer says I'll do your AOS for 7500 bucks. Montreal lawyer says go to the interview, there will be no problems, you havne't done anything wrong, it will be fine. Montreal lawyer says I'll come to the interview with you for $1000.

I can't decide what to do! I really want to go to Montreal to get it over with. I have used the search function here and can't find any case where a Canadian was denied for an overstay like mine. I don't want to adjust status as I am really nervous about being landlocked in the USA for any length of time as I have aging parents in Canada. NY lawyer said because of the overstay issue I wouldn't be able to use advance parole. I hate to feel that I can't complete the CR1 process just because I am afraid the consulate staff will make a mistake and cause lots of hassles.

So am I crazy to think about leaving the US? I can't make up my mind!

Did you enter the US illegally?

[Krikit 1,164]

On your application, what did you write down for the visitation question and how long you've been in the US? What address did you give them as to where you were living?

Edited April 23, 2009 by Krikit

[thetreble 19]

Woah okay. First, $7500.00 for him to file AOS? That is insane.

1. You can't file AOS as you have a pending CR-1 visa application in progress.

2. Take your chances and go to your CR-1 interview. When you went to the US to visit and ended up staying due to your pregnancy complications, you in fact did over stay as you went in with the intention as a visitor, not as an immigrant. While your passport wasn't stamped on entry (no one will stamp you) you still overstayed your 6 months. This may cause you a complication in your process but it also may be forgiven. I would just go to the consulate in Montreal for your interview and see what they say.

Again, since you have already applied for a CR-1 visa, all the info you are getting about overstay and Advanced Parole doesn't apply to you.

[trailmix 77]

Here is a VJ member's posting from last year, a few weeks ago his waiver was approved (after a year) and he is awaiting his visa in the mail. This situation may or may not apply to you, however an overstay is an overstay isn't it?

You mention: "The rules seem to be that I am not unlawfully present as my passport wasn't stamped on entry, therefore there is no overstay. Therefore, no bar, no waiver needed".

Whatever your good reason(s) for staying in the U.S. - the bottom line (in my opinion) is that you have overstayed. If there were no implications for Canadians staying for as long as they like in the U.S. then there would be a lot of Canadians just hopping across the border to live with their SO's for as long as they like - there probably are - but - my point is, just because they don't stamp your passport, that does not mean there are no rules.

I hope they make an exception in your case, I would certainly encourage you to get as much documentation as you can to back up the facts regarding why you did overstay - however, even with the bed rest issue, you have stayed well past that.

To be completely honest with you I don't think the Montreal lawyer is absolutely correct, there may well be a problem and you may well have to file a waiver.

I just felt I needed to get it out of my system. I got the inspiration to write my story from watching the movie, "Into the Wild" about Christopher McCandless.

Hello, My name is Mark and this is my story.

While I was waiting for my interview on March 17th. I was looking through this forum and making sure that I got all of my paperwork together. Forms, pictures, enough USD just in case, the whole 9 yards. Made my travel reservation, I thought it would be great to arrive in Montreal in style by taking VIA1 class and booked a hotel that none of the VJers been to. I'm going to stay in Montreal for 4 days with the interview in the middle. Give myself some time to find the consulate on Sunday and explore Montreal a bit after the interview.

I doubled checked my papers, making sure Im bring everything to the interview. I got myself a paper accordion to organize my stuff. Passport photo, medical envelope, all the forms that my wife and I filled out, etc, etc. Then I had a major flashback. It was about my situation of not able to enter POE at Toronto PFI airport back in May 1st, 2007 and ended up to filling out volunteer to withdrawal my admission. Apparently, I overstayed my TN visa by 8 months.

Now to be honest, nobody told me that I actually need to get a green card even though I already married to a USC for a few years (since 2001). Over the years while I was in USA, people would tell me that if were to marry an USC , I don't have to worry about getting any trouble or hassle of communication (I was born deaf) in order to reenter USA. It wasn't my intention to marry an USC when I came into USA. I was on F1 (student) visa in 1992 to 1998 and TN visa since then. I fell in love with a wonderful lady while I was working and got married in 2001. I was told that I just needed to bring some official documentations as proof. I had a funny feeling that there was something more to this but I never did anything about it.

I had all the paperwork with me when I was in Toronto-PFI. My wife birth certificate (to prove that she's USC), our marriage certificate, my birth certificate, my 10-month old daughter's birth certificate, my student ID and transcript to prove that I'm taking classes again at a deaf college as a full-time student, and my father's death certificate in United Kingdom which is why I left the country in the first place.

As expected, I went into the secondary holding area and met with the immigration officer. I had a really tough time understanding him since I'm deaf. I tried to lip read as much as I could and used pen and paper for some the words I did not understand. He wasn't exactly in a good mood when I first met him so that made our communication rather difficult. At the end, he pointed at a statement in the withdrawal of application and it said:

"Subject refused admission pursuant Section 212(a)(7)(A)(i)(I) and 212(a)(9)(B)(i) of the INA. Subject is advised he need to wait in Canada for his visa approval."

And that was it. End of discussion.

The officer gave me the paperwork, my passport and pointed me into the direction of the airline ticket counters, back to where I came in. My mind was reeling in the news, "Wait..wait..wait...THAT was not what I expected". It was quite the opposite direction of where I wanted to go.

By the time I look back, the officer was long gone, his back turned against me and walking away. I had no choice but to walk into that pointed direction. And boy did I ever walk slowly, almost to a snail pace.

I was watching travelers walking by me. Some of them were smiling as they passed through the primary passport checkpoint to their flights within the International terminal. Did that ever had an impact on me. Not only I had to deal with my father's death at the time, I now have another situation on my plate to deal with. I just simply took the tram and went to the Sheraton hotel that was attached to the airport to formulate my next course of action.

It wasn't until couple days later, I learned of how serious the implication that I caused without having the proper visa. My wife spoke with a lawyer, mentioned that I should have filed for an AOS after the marriage ceremony 2001. The lawyer also mentioned that the TN visa is NOT a one-year visa. TN is only good for as long I have employment for that one year. I have been renewing my TN visa for 7 years and not at one given time, any immigration officers ever told me that I need to return to Canada once I'm longer employed.

Ouch....Man, talk about quadruple whammy! My father's death, denied entry, should've gone through AOS, big no-no about TN. It feels as if my world was turned upside down with the notion that I wont be with my family at all. Then that withdrawal statement from the airport came back to my mind, "Subject is advised he need to wait in Canada for his visa approval"...... need to wait... visa approval.. slowly my mind put pieces together........ah okay so this is not really a permeant thing after all. All I have to do is to wait to get a visa for reentry... couldn't be THAT bad.... Shortly thereafter I realized that there are things out there in this world that is far far worst off than I am at the moment. AIDS, struggles in third world countries, people who still feel the aftermath of 9/11 effect, family who lost their loves one due to non-natural events, etc etc.

So trying to move on with my life, the lawyer pointed us to IR1 and hired him to help us with the IR1 filing paperwork for me to be back with my family. I thought I would do some research myself to see what I should expect out of going through IR1 process. I know we could've done the paperwork ourselves and save bundle of money but neither my wife nor myself was in any condition to do it.

It wasn't until couple of months later when I didn't hear anything from the lawyer. I figured it wouldn't hurt to do some research about this whole IR1 process. So I fired up my favorite web browsers and google everything about IR1. Thats how I came across this *GREAT* forum and you guys. OMG, what a great support system! While I was a lurker most of the time but some of you may not realize how positive it was to hear your situation, your difficulties that we can relate somehow, and the successful ending of getting the visa and being with your loves one in a country that you truly want to be in! I'm sure that has brought some untold positive feelings for many others who are still lurking around on this forum.

After I had that Toronto flashback, I had mild form of panic attack (at least I *think* it was mild), especially when the Montreal interview date creeping closer, day by day, minute by minute to March 17th. For those who knew me, having panic attack was practically unheard of. I'm one of those guys that rolls with the hits no matter how bad the situation it may seems and always look at the glass half full.

It just hit me, how does the withdrawal of application form affect my IR1 interview? So off I go, doing some more research on visajourney.com and came across something thats called waiver form. Now I starting to realized the connection between that waiver forms and remembered that my wife had to write up a hardship letter for the lawyer some months ago. Ah, okay the waiver form is called I-601. Then somewhere in the forum, one of the VJers mentioned about Montreal I-601 timeline posted on another website (immigrate2us.net).

I went to the website and thats when hit me for the second time..... more delay... the worst part is it take 9-12 months of waiting after the interview for Montreal to approve I-601.

My mind just went numb.

After having a couple glasses of Merlot wine, I managed to pull myself together again and reanalyze my situation. I made this far already. I have my friends and family rooting for me and they keep telling me to hang in there. It will take some time but I will get there.

Guess I won't be going home for a while.

There's a quote that I have in my facebook profile that says:

I've learned so far in life that you have to take the bad things with the good.

Things happen that will shape your future, and though you might not see it,

though it really sucks at the time, in the long run, you'll be thankful for the

experience and finally understand why it happened.

I have learned that an optimistic attitude goes a long way in making things

bearable.

Another day, another chance...

Might as well make the best out of it.

I feel a bit better now.

Thank you for reading my story.

Edited April 23, 2009 by trailmix

[rexalite 0]

Woah okay. First, $7500.00 for him to file AOS? That is insane.

1. You can't file AOS as you have a pending CR-1 visa application in progress.

2. Take your chances and go to your CR-1 interview. When you went to the US to visit and ended up staying due to your pregnancy complications, you in fact did over stay as you went in with the intention as a visitor, not as an immigrant. While your passport wasn't stamped on entry (no one will stamp you) you still overstayed your 6 months. This may cause you a complication in your process but it also may be forgiven. I would just go to the consulate in Montreal for your interview and see what they say.

Again, since you have already applied for a CR-1 visa, all the info you are getting about overstay and Advanced Parole doesn't apply to you.

krikit - I gave my home address in Canada, which is still my legal residence. It's my condo, where all my stuff is, where all my ties are. I kept working with my Canadian company while I was on bedrest - telecommuting in to my Canadian workstation until I had my baby. I am on maternity leave right now. For visits, I didn't list them out - I just wrote that I had grown up on the border and had hundreds and hundreds of visits. But my intention is to tell them first thing at my interview that I have been in the US for 20 months. At first I was just hoping that it wouldn't come up, but I think with the DS 230 I would be misrepresenting myself if I didn't list out that I had been visiting the US for 20 months.

The treble - Neither of the lawyers I spoke to mentioned that you can't file AOS with a CR1 in progress. I wasn't aware of that. I thought it was an entirely seperate process. I want to go to Montreal, but I want to know what will happen if I do - I dont' want to be stuck in Canada for years. Not that I don't love Canada!

[beans 7]

From what I was to understand also paying a lawyer a $1000 to go to your interview would be pointless as they aren't allowed in the actual interview itself. I may be wrong but none the less ask around if they can attend.

[SapphireDreams 71]

I think that once you tell them you've been in the US for 20 months they deem you have overstayed and you will need to file a waiver. They may let it go, but I think it's doubtful and unrealistic to think that they'll just let you off - although not impossible since at the beginning you had a medical reason. It doesn't matter if they stamped your passport at this point.

I think you should go and be prepared to have to stay in Canada until the waiver is complete... which could take about a year it seems (from previous VJ'ers experiences).

[Krikit 1,164]

krikit - I gave my home address in Canada, which is still my legal residence. It's my condo, where all my stuff is, where all my ties are. I kept working with my Canadian company while I was on bedrest - telecommuting in to my Canadian workstation until I had my baby. I am on maternity leave right now. For visits, I didn't list them out - I just wrote that I had grown up on the border and had hundreds and hundreds of visits. But my intention is to tell them first thing at my interview that I have been in the US for 20 months. At first I was just hoping that it wouldn't come up, but I think with the DS 230 I would be misrepresenting myself if I didn't list out that I had been visiting the US for 20 months.

The thing is, the reason they ask you that visitation question is to determine if there were any overstays. An overstay of 180 days, but less than one year, triggers a 3 year bar. An overstay of one year or more (you) triggers a 10 year bar. Your "out" was to request an extension of your visit due to medical circumstances. I don't read where you applied for that. So that brings us to you leaving the US to attend your interview. Once you answer that question you're toast, and you will need to apply for a waiver.

I have no idea how, or if, they will address the fact that the address they have on file for you is not your place of residence (misrepresentation), but you should be prepared with a response to that issue also. Did you, at any time during your 20 months of residence, leave the US and return?

When you look at the issues and the penalties you will surely face, it seems to me that your best option is to withdraw your current application and file for AOS from within the US.

[trailmix 77]

When you look at the issues and the penalties you will surely face, it seems to me that your best option is to withdraw your current application and file for AOS from within the US.

I agree.

[SapphireDreams 71]

When you look at the issues and the penalties you will surely face, it seems to me that your best option is to withdraw your current application and file for AOS from within the US.

I agree.

I agree as well. Especially after reading Krikit's post!

[thetreble 19]

Agreed.

If you withdraw your current petition you can then apply for AOS.

[Misty1979 0]

When you look at the issues and the penalties you will surely face, it seems to me that your best option is to withdraw your current application and file for AOS from within the US.

I agree.

I very much agree with this as well. Although starting all over with AOS will be a hassle, I think that is the better option as opposed to a 10 year ban, which I'm pretty sure is what will happen. It's not worth the gamble, (and it doesn't sound like the odds are on your side,) to risk being separated from your family for 10 years.

I wish you the best, and hope that you come to a decision that you're comfortable with

[rexalite 0]

Thanks all for your replies.

I know it seems strange, but both of the lawyers that I talked to said I wouldn't be subject to the ban for overstay because of not having had my passport stamped. Apparently the clock for "unlawful presence" would not start to run for me until I've been asked to leave the country, which I haven't. The idea is that Canadians who enter are classified as "duration of status" until they are asked to leave. It's a different situation from the person with a TN visa, as the TN visa has specific dates attached to it. Has anyone heard or read about a Canadian who entered with inspection, but without having the passport stamped, being subject to overstay rules? I can't find a case like that anywhere.

Obviously they don't want people just coming over to stay with their spouses during visa processing, and if you did that, you could be denied for having entered with immigrant intent. I didn't have immigrant intent. I still had my job that I was to return to in December, and I can get an affidavit from my employer saying I was expected back. I also have all my medical documentation and a letter from my OB saying that I would have risked the life of my baby if I had travelled as planned.

One way in which it does make sense is that on AOS they forgive overstay if you marry a USC. So if that's the case, why would they want to deny a CR1 for something that is allowed under adjustment of status?

I asked the Montreal lawyer what would happen if I got an interviewer who was having a bad day who denied me outright. He said "oh we will just ask to see the program manager and we'll get it straightened out". He acted like there was no risk at all.

If I do withdraw my petition, how would I go about diong that?

[Krikit 1,164]

I asked the Montreal lawyer what would happen if I got an interviewer who was having a bad day who denied me outright. He said "oh we will just ask to see the program manager and we'll get it straightened out". He acted like there was no risk at all.

Sorry. I just have to at that. We've seen/heard so much. Sorry.

Just backing up a bit here.... is this the same attorney who is going to accompany you to your interview? Because attorneys are specifically prohibited from entering the Consulate.