"overstay" and status change?

[Hassara 0]

I live in Texas (resident) and my girlfriend came to be with me last year from Canada. When she came, she said the people who stamped her passport did not put any duration or date she has to return to Canada. Since then, we have decided to get married. I have tried to find answers short of hiring a lawyer (something I'll probably have to do). Hopefully, the members of this forum may have some information that could help.

Do you know how long she is allowed to stay in the US? When she arrived, she was still married. She and her husband had agreed to separate. He filed for divorce early this year and it will be finalized in the next month or two.

Is there any potential pitfalls I should be looking for? From everything we can see, it should not be a difficult task for her to apply for citizenship. She has not attempted to take a job here, since that would be illegal.

We've asked around before (including talking to a lawyer in passing) and everyone has said Canadians are exempt from most immigration restrictions.

Any response would be appreciated.

Thank you.

[Kathryn41 3,207]

First, the lawyers who said that Canadians are exempt from most immigration pitfalls are wrong. There are no exceptions for Canadians - they fall under the same immigration rules as everyone else does once they enter the immigration process.

Canadians are allowed to visit the US for a maximum of 6 months at a time. If your fiancee entered last year she is now out of status. Currently she is in the US illegally, however there are steps you can take to correct this since she entered legally as a visitor.

The only way she can remain legally in the US is as your wife. That means her divorce needs to be finalized and the two of you marry and apply to adjust her status from within the US. You do that by filing an I-130 form and an I-485 along with the other necessary documents. You can read up on the guides in the "adjusting from a tourist, student or work visa" here on VJ. She cannot leave the US until she has her green card or they will not allow her back into the US and you will have to start all over again. This option is legal only if she entered the US with no intention of getting married. Already being married when she entered does make that one a bit easier to support. If she entered the US with the intention of marrying you then that would be considered visa fraud and is illegal.

The other options require her to leave the US and if you are going to pursue those she should leave asap before she incurs any further out of status days. After 180 out of status days she immediately incurs a 3 year ban on re-entry to the US. After a year of out of status days the ban increases to 10 years.

For all of these options she needs to be divorced and free to marry you. One is the fiancee visa. You file an I-129 f petition in the US. Once that is approved stage 2 moves to Canada and is handled by the US Consulate in either Montreal or Vancouver. She options her security clearance, her medical, a number of relevant documents, has an interview and when she is approved re-enters the US. You then have to marry within 90 days. She then has to adjust status (form I-485) to get her green card.

The other option is to get married and apply for a CR-1 visa. You submit the I-130 petition in the US, then once again the processing moves to the US Consulate in Canada. Again she needs security clearance, medical, relevant documents and forms and has an interview. Once she is approved she enters the US as a permanent resident nd receives her green card.

After 3 years of being a permanent resident married to the same US citizen she is allowed to apply for US citizenship.

You will find a lot of useful information in the guides at the top of the various forums. Don't believe anyone - including a lawyer - who says Canadians are exempt from most immigration processes. We're not and you can get into deep trouble by not following the appropriate immigration process. Good luck.

Edited June 10, 2009 by Kathryn41

[Gary and Alla 3,696]

I live in Texas (resident) and my girlfriend came to be with me last year from Canada. When she came, she said the people who stamped her passport did not put any duration or date she has to return to Canada. Since then, we have decided to get married. I have tried to find answers short of hiring a lawyer (something I'll probably have to do). Hopefully, the members of this forum may have some information that could help.

Do you know how long she is allowed to stay in the US? When she arrived, she was still married. She and her husband had agreed to separate. He filed for divorce early this year and it will be finalized in the next month or two.

Is there any potential pitfalls I should be looking for? From everything we can see, it should not be a difficult task for her to apply for citizenship. She has not attempted to take a job here, since that would be illegal.

We've asked around before (including talking to a lawyer in passing) and everyone has said Canadians are exempt from most immigration restrictions.

Any response would be appreciated.

Thank you.

Why does anyone even ask lawyers anything? Canadians are in no way exempt from immigration laws (note all the Canadian visa recipients here) Sheeesh.

Once her divorce is finalized, you can get married and file for AOS provided you can show it was not her intent when she entered as a visitor. Her overstay will likely be forgiven as she did not enter illegally. And they DO record when you enter and leave electronically. They do not stamp the passport, but they KNOW.

Unless otherwise stated (and they usually don't state) a Canadian can visit for 6 months at a time. I thought that was fairly well known.