Adjusting Status once I-130 FILED?

[Chaungy 0]

Hi all,

I'm brand new to these forums but am looking for some advice.

My wife is from Canada. We were married and filed our I-130 in September 2011. Our 5 months is on Thursday and it looks like it's still going to be awhile. Anyways, she came for a visit on the February 14, 2012. She had a folder full of ties to Canada but the Immigration Officer didn't even ask who she was going to visit. He stamped her passport with a B2 visa, no return date. I assume that means 6 months?

So now that she's here and I really don't want her to leave. She has her job and everything to go back to but I just can't drive her to the airport once again for who knows how many months. I've been researching our options and came across Adjustment of Status. When she came to visit she had no intent to stay, I only brought this up over the weekend.

Is this available to us? Would we be able to do this even though we filed our I-130 in September?

All opinions are welcome! Thanks in advance!

[jaycali 415]

It's possible to adjust status from B-1 to LPR based on marriage, yes. But, I'd suggest talking to a good lawyer because adjusting status on a B-1 is definitely lawyer territory. It's not at all illegal to adjust status "on a whim" but it's immigration fraud to enter on a B-1 with the intent to adjust status. So you'll need to be really confident in your case.

The visa categories that are most often adjusted are F-1 or H-1b, because those are often very long-term visas. As in, adjusting on an F-1 is no big deal because it's fully credible to meet someone and marry during a 4 year time frame. Your main issue will be how to convince the USCIS that she had no intention of adjusting status when she entered for 3 - 6 months.

[Chaungy 0]

It's possible to adjust status from B-1 to LPR based on marriage, yes. But, I'd suggest talking to a good lawyer because adjusting status on a B-1 is definitely lawyer territory. It's not at all illegal to adjust status "on a whim" but it's immigration fraud to enter on a B-1 with the intent to adjust status. So you'll need to be really confident in your case.

The visa categories that are most often adjusted are F-1 or H-1b, because those are often very long-term visas. As in, adjusting on an F-1 is no big deal because it's fully credible to meet someone and marry during a 4 year time frame. Your main issue will be how to convince the USCIS that she had no intention of adjusting status when she entered for 3 - 6 months.

Would the proof of ties that she was planning on using work to convince the USCIS that she had no intention of adjusting status?

[aaron2020 11,652]

Hi all,

I'm brand new to these forums but am looking for some advice.

My wife is from Canada. We were married and filed our I-130 in September 2011. Our 5 months is on Thursday and it looks like it's still going to be awhile. Anyways, she came for a visit on the February 14, 2012. She had a folder full of ties to Canada but the Immigration Officer didn't even ask who she was going to visit. He stamped her passport with a B2 visa, no return date. I assume that means 6 months?

So now that she's here and I really don't want her to leave. She has her job and everything to go back to but I just can't drive her to the airport once again for who knows how many months. I've been researching our options and came across Adjustment of Status. When she came to visit she had no intent to stay, I only brought this up over the weekend.

Is this available to us? Would we be able to do this even though we filed our I-130 in September?

All opinions are welcome! Thanks in advance!

If you file to adjust, you are going to run into several problems.

First, she was admitted as a visitor while having an immigration petition filed, so her application to adjust would look like an end run to eliminate waiting in Canada. The visitor visa is a privilege that is not available to many couples. An IO may determine that she abused the visitor visa so she could immigrate early to the US because the two of you couldn't tolerate being separated while the I-130 was being adjudicated.

Second, it will take a lot longer for her to get a green card. She would essentially be starting from the beginning. It will take 2 months for her to get AP and EAD. (If she leaves the US before getting AP - she abandon her adjustment. Without her EAD, she cannot legally work.) It could take up to 6 months for her to get a green card.

With the current route that you are on, she is pretty close to getting a green card. If she leaves the US and finish processing in Canada, she could enter the US as an immigrant shortly. Upon entry, she immediately gets a green card. She could legally start to work. She could return to Canada and re-enter the US at any time.

The two of you are way better off completing the process you have already invested 5 months into. It is better than starting from square 1 with the adjustment.

[jaycali 415]

Would the proof of ties that she was planning on using work to convince the USCIS that she had no intention of adjusting status?

It's definitely better than nothing. But to tell you the truth I really have no idea how the USCIS handles those cases. They're a little more complex than most AOS cases in that you have have the extra burden of proof. Hopefully, someone will answer this who knows a little more than me. But I would highly recommend also consulting a lawyer.

[Chaungy 0]

If you file to adjust, you are going to run into several problems.

First, she was admitted as a visitor while having an immigration petition filed, so her application to adjust would look like an end run to eliminate waiting in Canada. The visitor visa is a privilege that is not available to many couples. An IO may determine that she abused the visitor visa so she could immigrate early to the US because the two of you couldn't tolerate being separated while the I-130 was being adjudicated.

Second, it will take a lot longer for her to get a green card. She would essentially be starting from the beginning. It will take 2 months for her to get AP and EAD. (If she leaves the US before getting AP - she abandon her adjustment. Without her EAD, she cannot legally work.) It could take up to 6 months for her to get a green card.

With the current route that you are on, she is pretty close to getting a green card. If she leaves the US and finish processing in Canada, she could enter the US as an immigrant shortly. Upon entry, she immediately gets a green card. She could legally start to work. She could return to Canada and re-enter the US at any time.

The two of you are way better off completing the process you have already invested 5 months into. It is better than starting from square 1 with the adjustment.

But she could still stay in the US to wait out the process and then return to Canada for the interview, am I correct?

[jaycali 415]

But she could still stay in the US to wait out the process and then return to Canada for the interview, am I correct?

As long as her visa is valid and you guys can afford her not working - Absolutely.

Edited February 21, 2012 by jhsm85

[Gaijinsan 3]

But she could still stay in the US to wait out the process and then return to Canada for the interview, am I correct?

Your wife really does have a B-2 visa and was admitted under it, rather than VWP?

They should have stamped her passport with exactly the status she was admitted under, and sometimes will have the exact date stamped/written in. Unfortunately, no date in this case, but the admitted class should be noted in the stamp.

Edited February 21, 2012 by Gaijinsan

[Chaungy 0]

Your wife really does have a B-2 visa and was admitted under it, rather than VWP?

They should have stamped her passport with exactly the status she was admitted under, and sometimes will have the exact date stamped/written in. Unfortunately, no date in this case, but the admitted class should be noted in the stamp.

Yes, a B2. Canada is not part of the VWP. It just says the day she was admitted and is signed by the guard. No return date.

[aaron2020 11,652]

Yes, a B2. Canada is not part of the VWP. It just says the day she was admitted and is signed by the guard. No return date.

Generally, Canadian citizens do not need non-immigrant visas to visit the US. Canadians can stay up to six months in the US without a visa.

She can stay in the US for up to six months. She will have to travel back to Canada for her visa interview.

http://travel.state.gov/visa/temp/without/without_1260.html#2

Visa Requirements - Citizens of Canada, and Permanent Residents

Citizens of Canada traveling to the U.S. do not require a nonimmigrant visa, except for the travel purposes described below. Additionally, Canadian citizens who are ineligible for a visa under immigration law, or have previously violated the terms of their immigration status in the U.S., can Learn More about ineligibilities related to Canadians on the CBP website. Canadian citizens with ineligibilities also have the option of applying for a visa and a waiver at the nearest U.S. consulate if it is more convenient for them.

Canadians require nonimmigrant visas for temporary travel to the U.S. for these purposes:

• Foreign government officials (A), officials and employees of international organizations (G) and NATO officials, representatives and employees assigned to the U.S. as needed to facilitate their travel
  
• Treaty traders (E-1)
  
• Treaty investors (E-2)
  
• Fiance/es (K-1)
  
• Children of fiancées (K-2)
  
• U.S. citizen's foreign citizen spouse, who is traveling to the U.S. to complete the process of immigration (K-3).
  
• Children of a foreign citizen spouse (K-4) described above
  
• Spouses of lawful permanent residents (V-1) traveling to the U.S. to reside here while they wait for the final completion of their immigration process
  
• Children of spouses of lawful permanent residents (V-2) described above
  

Permanent residents (aka landed immigrants) of Canada must have a nonimmigrant visa unless the permanent resident is a national of a country that participates in the Visa Waiver Program (VWP), meets the VWP requirements, and is seeking to enter the U.S. for 90 days or less under that program.

Additional resources for Canadian visitors to the U.S. can be found on the U.S. Embassy and Consulate websites in Canada – including links for Entering the United States, and Business Travel to the U.S..

Edited February 21, 2012 by aaron2020