EsmeGraham Notifications Canadian Citizen Married to USA Citizen, Returning to USA Questions

[EsmaRaiger 1]

Well here is my story: I went to the USA in September, 2016 I traveled by land I told the USA Border I was going to a friends wedding which i attended I then went to meet a boyfriend I had been seeing online for quite sometime feel in love with him talked to a lawyer asking if I could get married as a Visitor as I didn't enter with anything other then my Canadian Passport they told me yes

We got married at 5 months ....1 month before my 6 months ran out I went back to the same lawyer asking If I could stay in the USA while we worked on my Immagration and was told that I could cause I was known as an "Immedate Realtive" to a USA Citizen by marriage

I got news that my dad got Cancer and went back to Canada by land I have now been back in Canada almost a week and checked the I-94 website for the Arrival & Depature Record and the only thing that appears is the "Arrival" record nothing about a Depature Record

So I was wondering if my husband would need to apply for the waiver that costs $940.00 that isn't garanteed to get approved or if I would be able to go back to the USA since there is no depature record?

[Jojo92122 1,924]

If you left without AP, then you can not come back.

 

Don't dig a bigger hole for yourself by trying to come back.  

 

Did you stay in the US for longer than 6 months?  Did you overstay?

[EsmaRaiger 1]

1 minute ago, Jojo92122 said:

If you left without AP, then you can not come back.

 

Don't dig a bigger hole for yourself by trying to come back.  

 

Did you stay in the US for longer than 6 months?  Did you overstay?

Yes I didn't get back into Canada until last week.

 

I already know the ban for overstay is 3-10 years

[EsmaRaiger 1]

I crossed the USA Border in September, 2016 ---- 6 months would given me until Feburary,2017

 

I crossed the Canada Border June, 2018

Edited June 12, 2018 by EsmaRaiger

[geowrian 22,335]

Assuming you filed for AOS (I-485) and left without AP (via I-131), your AOS application has been abandoned. You likely will not be granted entry into the US visa-less with a recent AOS filing (nor would you likely be able to get a tourist visa given those conditions).

 

The good news is the I-130 filed concurrently with the I-485 will remain open, so you can go through consular processing for an immigrant visa abroad without waiting for the whole process to go through. However, you would need to get USCIS to send the approved I-130 (once approved) to NVC. This may or may not require an I-824.

 

If you filed the I-485 and had less than 180 days of overstay at the time you filed, you won't have a 3/10 bar due to overstay. What matters is how long you were out of status at the time you filed, since unlawful presence does not accrue while the I-485 is pending.

Edited June 12, 2018 by geowrian

[Teemo 252]

47 minutes ago, EsmaRaiger said:

Well here is my story: I went to the USA in September, 2016 I traveled by land I told the USA Border I was going to a friends wedding which i attended I then went to meet a boyfriend I had been seeing online for quite sometime feel in love with him talked to a lawyer asking if I could get married as a Visitor as I didn't enter with anything other then my Canadian Passport they told me yes

We got married at 5 months ....1 month before my 6 months ran out I went back to the same lawyer asking If I could stay in the USA while we worked on my Immagration and was told that I could cause I was known as an "Immedate Realtive" to a USA Citizen by marriage

I got news that my dad got Cancer and went back to Canada by land I have now been back in Canada almost a week and checked the I-94 website for the Arrival & Depature Record and the only thing that appears is the "Arrival" record nothing about a Depature Record

So I was wondering if my husband would need to apply for the waiver that costs $940.00 that isn't garanteed to get approved or if I would be able to go back to the USA since there is no depature record?

The departure record may not be on the I-94 (it's not always accurate) but they know when you departed. They have all that info in their databases and would check it on the computer at the port of entry. At that point, the burden of proof would be on you that you did NOT overstay. Of course, you did overstay so you would incur the 3 year ban. And you cannot say anything false as that would be misrepresentation and you'd now be barred for that, too. 

 

Your timeline doesn't make sense to me though. You entered Sept 2016, you got married in February 2017 (5 months later), and you just departed last week in June 2018? So between Feb 2017 and now, how did you not get advance parole, or even your green card? When did you apply for adjustment of status, and what stage are you in now?

 

EDIT: wait, you might not have overstayed. Once you applied for a I-485, you are put into authorized stay by the Attorney General, and you do not accrue unlawful presence. So, you have accrued zero unlawful presence if you applied before your 6 month stay ran out in March 2017. When did you apply for your AoS, specifically the I-485?

Edited June 12, 2018 by Teemo

[EsmaRaiger 1]

Nothing was ever applied for not even AOS ....... We had gotten the paperwork together but nothing was ever applied for cause of the cost.

 

I went to the Unitied States in September, 2016 ..............

 

We got married Janurary, 2017 ..............

 

My 6 months ran out Feburary 2017 ................

 

I came back to Canada in June, 2018 ......

 

Now does that make sense?

Edited June 12, 2018 by EsmaRaiger

[geowrian 22,335]

5 minutes ago, EsmaRaiger said:

Nothing was ever applied for not even AOS ....... We had gotten the paperwork together but nothing was ever applied for cause of the cost.

Oh...then you've got a decently long road ahead. You have a 10 year bar on any visa due to 1 year or longer of overstay.

 

At the visa interview (in ~12-16 months from I-130 filing), if you are otherwise eligible for the visa, you will be denied and offered the ability to file an I-601 waiver. ETA for that is ~12+ months right now. The USC petitioner also needs to be able to show a sufficient hardship to have the I-601 approved...a good attorney is suggested to present a quality waiver at that time. Just being separated isn't sufficient.

Edited June 12, 2018 by geowrian

[Lemonslice 4,553]

You'll be in Canada for the next year or so while you're spousal visa is being processed. Then, you'll interview in Montreal and have to file a waiver

5 minutes ago, EsmaRaiger said:

Nothing was ever applied for not even AOS ....... We had gotten the paperwork together but nothing was ever applied for cause of the cost.

 

I went to the Unitied States in September, 2016 ..............

 

We got married Janurary, 2017 ..............

 

My 6 months ran out Feburary 2017 ................

 

I came back to Canada in June, 2018 ......

 

Now does that make sense?

Would your spouse move to Canada? Might be faster solution to be together.

[EsmaRaiger 1]

3 minutes ago, Lemonslice said:

You'll be in Canada for the next year or so while you're spousal visa is being processed. Then, you'll interview in Montreal and have to file a waiver

Would your spouse move to Canada? Might be faster solution to be together.

He owes to much in Child Support to even get a passport if it's over a certian amount they won't issue him one.

 

Is there a way he could get around that like to get an Enchanced ID like we have in Canada?

 

Or that I could Sponsor him?

 

He is legally blind in one eye so he can't pass a drivers test for a drivers one.

Edited June 12, 2018 by EsmaRaiger

[Teemo 252]

14 minutes ago, EsmaRaiger said:

Nothing was ever applied for not even AOS ....... We had gotten the paperwork together but nothing was ever applied for cause of the cost.

 

I went to the Unitied States in September, 2016 ..............

 

We got married Janurary, 2017 ..............

 

My 6 months ran out Feburary 2017 ................

 

I came back to Canada in June, 2018 ......

 

Now does that make sense?

I removed my own post as other people's answers were better than mine

Edited June 12, 2018 by Teemo

[TBoneTX 43,058]

Thread is moved from the US Immigration News forum to the Waivers/AP forum -- OP is facing that stage.

[EsmaRaiger 1]

10 minutes ago, Teemo said:

ACTUALLY - just doing some quick online research now and perhaps it is possible the US doesn't know when you left, since you left by land to Canada and it's not in your I-94. So (AND THIS IS MY OPINION ONLY - DO NOT TAKE THIS AS ACTIONABLE ADVICE) perhaps it's not the worst thing in the world for you to try and enter again, but you have to be truthful if they ask you anything, otherwise you're adding misrepresentation. But if they don't let you in for reasons other than that, either they will allow you to withdraw your request to leave, or they will exclude you and give you a 5 year ban or so. But that won't mean much because you have a 10 year ban already. The problem is if/when you apply for Aos, they will likely find out you have triggered the ban. Ok honestly this is beyond the scope of what I know so I will exit this comment. But worth looking into this. 

Is there anyway I can find this out without going to the USA Border itself? Like I don't want to my parents to spend over $300.00 and then I'm turned away at the USA Border if that makes sense at all.

 

Like I know when I entered my 1-94 they have nothing on record when I was in the USA in 2005 and 2008 but that was a different last name and I don't remember that passport number to search it.

 

Maybe if I change my last name to my husbands it could throw them off again possibily?

 

And if the Border does ask when I was in the USA last and for how long? I can't really say Sept, 2016 for over a year cause it would trigger that ban right then and there if its not already on.

Edited June 12, 2018 by EsmaRaiger

[Teemo 252]

1 minute ago, EsmaRaiger said:

Is there anyway I can find this out without going to the USA Border itself? Like I don't want to spend $300.00 and be turned away at the Border if that makes sense at all.

 

Like I know when I entered my 1-94 they have nothing on record when I was in the USA in 2004 and 2006 but that was a different last name.

 

Maybe if I change my last name to my husbands it could throw them off again possibily?

 

And if the Border does ask when I was in the USA last and for how long? I can't really say Sept, 2016 for over a year cause it would trigger that ban right then and there if its not already on.

No, you can't lie or do any trickery. They know far more than you think they know, and they have your fingerprints from the PoE as well, so changing names won't do anything.  I guess you could just refuse to answer a question. It is tempting to lie - but don't do it, the consequences would be bad and long-lasting. Maybe you'll get lucky and they both won't know when you left and won't ask you anything about your last trip. I can't really judge how likely or unlikely that is. But then again you'd have the ban against you when you tried to adjust status because eventually they'll figure it out. 

 

Hmm I don't think you can find out if they know you are banned without going to the border. You can try calling CBP or USCIS maybe. 

[Lemonslice 4,553]

13 minutes ago, EsmaRaiger said:

Is there anyway I can find this out without going to the USA Border itself? Like I don't want to my parents to spend over $300.00 and then I'm turned away at the USA Border if that makes sense at all.

 

Like I know when I entered my 1-94 they have nothing on record when I was in the USA in 2005 and 2008 but that was a different last name and I don't remember that passport number to search it.

 

Maybe if I change my last name to my husbands it could throw them off again possibily?

 

And if the Border does ask when I was in the USA last and for how long? I can't really say Sept, 2016 for over a year cause it would trigger that ban right then and there if its not already on.

Do you want to visit the USA, or go back to live with your husband? 

 

Also, you are probably an adult and allowed to work on Canada, the cost of your travel should be covered by you or your husband. 

Edited June 12, 2018 by Lemonslice