I-130. Does out of status in US = illegal in US?

[Little_My 464]

File the I-485. Only filing the I-130 will take you down the wrong path. Well - not necessarily wrong, but an unnecessary detour. If you only file the I-130, you'll be filing for a CR-1 spousal visa, which means you'll have to complete the process in Canada. If you file the I-130 and I-485 concurrently, you will be able to adjust your status to permanent resident within the US, without having to do any of the process abroad. Once you have filed the paperwork you'll enter a new period of authorized stay which will last until you have a decision on your AOS case.

I am not sure how the TN-visa works in terms of whether or not it is dual intent - if it is not, then filing AOS might invalidate the TN and you'll have to wait until you receive the temporary EAD card which will authorize you to work again while the AOS is pending. The Canadians on this forum will probably know more details about this particular issue.

Regarding the overstay issue - how many days exactly have you been here in between contracts? Again, not an expert on the TN, so I am not sure how it works, but I assume you need to be employed while on the TN in the US, and if you are not under a work contract, you should return to Canada.. If you have accumulated more than 180 days of overstay anywhere in between contracts, and left and then re-entered, then there might be an issue..

Edited June 23, 2012 by Little_My

[STRIXO 1]

Thanks so much for you valuable reply Little_My.

I did stay between contract well over 180 days total over the last 6 years. The thing that bugs me most is that the US Custom Border officers would always give me a year long TN/I-94 even if I told them my start and end dates - the duration of my contract which would usually be between 4 to 6 months. They never mentioned that I should leave the US immediately after my last day of work. Would I face 3/10 years bar for this much time overstay if it indeed is overstay?

[Harpa Timsah 13,258]

Follow this guide. http://www.visajourney.com/content/i130guide2

Montreal consulate is wrong. If you leave you risk a ban, while if you stay, and adjust from TN straight to GC, you risk nothing.

They are wrong because they do not deal with AOS from within the US - they don't know how it works. THey know about visas issued at their consulate. Don't take advice from a physicist about farming.

I am sort of confused what your concern is? Is it that Montreal says you shouldn't file I-485?

Edited June 24, 2012 by Harpa Timsah

[JimVaPhuong 4,863]

Follow this guide. http://www.visajourney.com/content/i130guide2

Montreal consulate is wrong. If you leave you risk a ban, while if you stay, and adjust from TN straight to GC, you risk nothing.

They are wrong because they do not deal with AOS from within the US - they don't know how it works. THey know about visas issued at their consulate. Don't take advice from a physicist about farming.

I am sort of confused what your concern is? Is it that Montreal says you shouldn't file I-485?

I think the consulate in Montreal is aware that he's eligible to adjust status. They just don't like it. Department of State considers adjustment of status for immediate relatives to be a means for Department of Homeland Security to step on their toes. The law provides a role for Department of State in screening new immigrants, and they don't like being bypassed. DHS feels the same way when a consulate returns a petition they've already approved along with a recommendation that the approval be revoked.

I agree with your statement. Never ask a consulate for a advice in dealing with USCIS, and vice versa.

[Harpa Timsah 13,258]

I think the consulate in Montreal is aware that he's eligible to adjust status. They just don't like it. Department of State considers adjustment of status for immediate relatives to be a means for Department of Homeland Security to step on their toes. The law provides a role for Department of State in screening new immigrants, and they don't like being bypassed. DHS feels the same way when a consulate returns a petition they've already approved along with a recommendation that the approval be revoked.

I agree with your statement. Never ask a consulate for a advice in dealing with USCIS, and vice versa.

Hmm, do you really think they get so much out of this turf war? I would think one less person to deal with, and the lighter work load s/he creates, would be a good thing. Not that I am lazy... but I find the idea bizarre and concerning, that someone's motivations are based purely on their own false sense of importance. I think there is something to what you are saying, for sure, on a large scale, but it seems to me one employee is just misinformed, judging by their statements.

Edited June 24, 2012 by Harpa Timsah

[STRIXO 1]

Thanks for your replies!

I'll take your advice on going through the process with a change of status. My main concern remains that:

I"m a professional Canadian working under the NAFTA agreement for the past 11 years and was given an I-94 to work in the US for short-term contracts every year. Now, I stayed in the US between contracts well over 180 days total over the last 6 years. I was told that even if I never stayed past the expiration date on any of theses I-94s I still I’m considered out of status and may have incurred overstay. Is that right? If so, I should not be held responsible that because every US Custom Border officers who took care of my entry would give me a year long TN/I-94 even if I'd tell him/her what my start and end dates were. It' seasonal work and the duration of each contract was somewhere between 4 to 6 months. No officer ever mentioned to me that I should leave the US upon finishing work. What would be my sanctions if I indeed were considered overstaying? Would I face 3/10 year bar for this much time overstay? I'm married to my US wife and seek permanent residency through marriage. I'm currently working under NAFTA and with a valid I-94 (expires march 2013) Should I not worry about this overstay problematic?

[Harpa Timsah 13,258]

Overstay is forgiven/irrelevant for spouses of US Citizens. As others have suggested, do not leave the country until your Greencard is in your hand. At that point, any overstay will be "erased." The ban is only triggered upon exit, so do not leave until you have your Greencard.

There is a small chance that you were erroneously allowed reentry into the US, and that you actually have a ban on you (triggered when you exited at some point in the past). If that is the case, you will be able to fill out a waiver from within the US and avoid being apart from your spouse. I do think it is odd that you were given one year I-94s when your job was only 6 months, but as you have said, you were never told you were supposed to leave, and your status was current according to the I-94s, though maybe not according to the visa/job itself. I think the chance of this happening is extremely small.

Edited June 25, 2012 by Harpa Timsah

[STRIXO 1]

Harpa Timsah, thanks so much for your replies!

I would have liked to down the I-130 path but as little risky it may be I'd hate to deal with a reentry ban from outside the US. So I'll stay here and fill for a change of status with form I-485.

Any idea on how long it take to get a temporary work visa while on wait for the green card?

Thanks.

[Little_My 464]

You won't be getting any kind of a temporary work visa. What you can file for with the I-765 is called an EAD - Employment Authorization Document - which is a temporary work permit that allows you to be employed while AOS is pending. Usually that comes in 90 days from USCIS receiving your application, if there are no RFEs along the way, but I have seen a few posts recently about EADs and APs taking longer than 90 days.. But, in general, it takes about 3 months.

[grrrrreat 109]

You won't be getting any kind of a temporary work visa. What you can file for with the I-765 is called an EAD - Employment Authorization Document - which is a temporary work permit that allows you to be employed while AOS is pending. Usually that comes in 90 days from USCIS receiving your application, if there are no RFEs along the way, but I have seen a few posts recently about EADs and APs taking longer than 90 days.. But, in general, it takes about 3 months.

EADs are taking around 4-5 months now. People are extremely anxious that the new DREAMers directive issued by USCIS will slow that down further, but I don't think people should jump to conclusions (DREAMers are now eligible to apply for an EAD).

[JimVaPhuong 4,863]

EADs are taking around 4-5 months now. People are extremely anxious that the new DREAMers directive issued by USCIS will slow that down further, but I don't think people should jump to conclusions (DREAMers are now eligible to apply for an EAD).

They're not eligible yet. USCIS needs at least 60 days to establish procedures for accepting those deferred action applications.

[grrrrreat 109]

They're not eligible yet. USCIS needs at least 60 days to establish procedures for accepting those deferred action applications.

I realize this, but eventually they will start submitting applications for EADS and people are concerned it will slow down their own applications.

[Hypnos 6,576]

Since by law they will not be able to charge for this flood of EAD applications (because it was not enacted by a law passed by Congress and so they cannot charge applicants a fee for it) then I am certain it will slow down everyone else's applications at USCIS.

I am glad I will be done and dusted in July, because I think August filers and onwards are going to have slowdowns in their processing times as a direct result of this.

[JimVaPhuong 4,863]

I realize this, but eventually they will start submitting applications for EADS and people are concerned it will slow down their own applications.

It might.

[STRIXO 1]

I called a CPB officer today and found out that I was illegally present in the US between contract -even if my 1-94 card would not expire for another 4 to 6 months - because the purpose of my TN was no longer being meet. Can I still fill for an AOS? Furthermore I collected UI in the US in between contract thinking that I could - since I still had a valid 1-94. CIS will find that out since I have to present them with my last 3 years tax record. Should I even proceed onward? Or will I be thrown to jail?