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Canadian spouse - Can I apply for AOS when *out of status*?

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Hello everyone. I am a 55 year old Canadian woman who met my American citizen husband online 2 1/2 years ago. I have since been to the states to visit him and his family 4 times. The 4th time, I came to the US at the end of October, 2014 to visit after 9 months being physically apart to see if we still felt the same. I had a return ticket to go back to Canada for 4 months later. The border official asked me at the airport where I was going to get the money to stay that long. I said I was now able to access retirement funds and that I needed to get away from the Canadian cold winter, all true.

Two weeks after I arrived, my boyfriend proposed to me in front of his children. We decided to get married the following week, along side his children at the courthouse. This was not a first marriage for either of us, both of our parents were dead, so a small wedding was perfect. Our decision to get married right away was to then start the immigration procedure from the states, I would go back to Canada, therefore we would not have to spend so much time apart. Unfortunately, that plan did not work as his ex-wife decided to move his children to another state, so we had to move and did not have a permanent address for filing until now. Time is running out for me as the border official stamped my Canadian passport April 20th. Canadian are not under the visa waiver program but are admitted under the N.A. Free Trade Agreement I believe. I did not need to apply for visa. So, I am trying now to apply for an Adjustment of Status from within the USA.

My first question is do I have to be *in status* to file my immigration documents or can I be *out of status*? I still have to get my medical done and we are having his cousin sign an Affidavit of Support. So time is running out.

My second question is if we filed documents and needed more evidence (say for Affidavit of Support -- need to attach 2014 Income Tax Transcripts but have not received from US Government yet -- so attach Income Tax Form filed instead and say we will forward transcripts later) - how long do they give you to submit that evidence?

My third question is just say for some chance we could not filed evidence required and application was rejected, could I still return to Canada without a ban, since I would be *out of status*?

Thank you so much everyone for your help. This is a great forum and I am so glad I found it. Anne

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From my experience with my wife's time Out of Status your open to trouble depending on who you get at the border. We had everything but the green card last time and they denied her because the Out of Status is not Forgiven until the Green Card is issued. However we did have the right travel forms and ok for her to leave, but the re-entry is up to the discretion of the agent you get coming back. If the Passport says to re-enter by April 20th, I would do it and then make plans to come back. You have a while anyway as it sounds like some of the forms are not going to be fast and it takes them months to do anything.


09/16/2007 - Met her and her brother online in WOW

12/20/2007 - Exchanged emails and started talking a little

08/13/2008 - Went to visit her brother and see her for first time

multiple visits slowly moving from visiting a friend and working to more to see her

08/20/2010 - Forms sent Fedex

08/31/2010 - Check Cashed

09/09/2010 - NOA-1 (I-797C) recieved and dated 08/31/2010

09/10/2010 - Account created with USCIC and email turned on

02/01/2011 - On February 1, 2011, we mailed you a notice that we have approved this I129F PETITION FOR FIANCE(E)

02/08/2010 - Packet sent to Costa Rica

02/15/2010 - Called, packet is there can come get it

02/17/2010 - Packet can be picked up

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If you've already filed your 2014 taxes, and they were accepted by IRS.GOV, you can just get a copy of your transcript online immediately.. Just a heads up. We did so and just included a printout in our package.

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Overstay is forgiven for the spouse of a U.S. citizen - do not leave the country until you have the AP or green card. There is a guide up top for adjusting your status.

Post on Adjudicators's Field Manual re: AOS and Intent: My link
Wedding Date: 06/14/2009
POE at Pearson Airport - for a visit, did not intend to stay - 10/09/2009
Found VisaJourney and created an account - 10/19/2009

I-130 (approved as part of the CR-1 process):
Sent 10/01/2009
NOA1 10/07/2009
NOA2 02/10/2010

NOA 05/14/2010
Interview - approved! 07/29/10 need to send in completed I-693 (doctor missed answering a couple of questions) - sent back same day
Green card received 08/20/10

Sent 06/01/2012
Approved 02/27/2013

Green card received 05/08/2013

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1) Immediate relatives of a US citizen, such as a spouse, do not need to remain in-status in order to be eligible for AoS; they need only prove that they entered the country legally, which you usually do by submitting a copy of your I-94 or CBP passport stamp.

2) If you receive an RFE then you are usually given 87 days to respond to it; if you fail to respond to the RFE within the allotted time, or your response is itself deficient, then your I-485 will be denied.

3) To trigger the three year bar you need to have overstayed for at least 180 days (so for you ~December); and to trigger the ten year bar you need to have overstayed for at least 365 days (~April 2016). Any time spent in the US whilst your I-485 is pending does not count as overstay.

Widow/er AoS Guide | Have AoS questions? Read (some) answers here



Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card



Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

Day 341 (12/10/18) Interview was scheduled for 1/14/19

Day 376 (1/14/19) Interview

Day 385 (1/23/19) Denied

Day 400 (2/7/19) Denial revoked; N-400 approved; oath ceremony set for 2/14/19

Day 407 (2/14/19) Oath ceremony in Dallas, TX

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Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

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