I-130 and AOS without arriving to US on valid "visa"

[Pickle_slushy 4]

Me (US) and my fiancé (Canadian) were going through the K1 process but the visa interview in Montreal was canceled due to covid. She has been here with my since March. With all the uncertainty about borders opening and consulates opening as well, we are considering just getting married, submitting a I-130, and AOS from here in the states. 

 

My question is: It's stated that to do this method, she must have came here on either a valid visa or a visa waiver program. I'm not sure if this is an issue with us because; She never received any type of visa or stamp when she entered, nor has she ever when she arrives through the land port of entry. I've checked her I-94 record online but nothing shows up?

 

Does anybody know how this will affect us if at all? 

[JFH 12,189]

Canadian passport holders do not require visas to enter the US for leisure purposes. Her passport should have been stamped with a B-2 stamp with a date on it. That’s evidence that she arrived here legally. People who enter illegally (without inspection) are not able to adjust status once here. Provided she came through a recognized border crossing point, be that an airport, land crossing point, or sea port, she is fine. 

[Pickle_slushy 4]

1 minute ago, JFH said:

Canadian passport holders do not require visas to enter the US for leisure purposes. Her passport should have been stamped with a B-2 stamp with a date on it. That’s evidence that she arrived here legally. People who enter illegally (without inspection) are not able to adjust status once here. Provided she came through a recognized border crossing point, be that an airport, land crossing point, or sea port, she is fine. 

She did cross legally through a land border. They just never stamped it at all. They never stamp mine when I visit her there either. The only proof I have of her arrival is by looking at her arrival/departure history on the website, which is accurate. 

[Villanelle 4,121]

Did you check her i94 online and nothing showed up or are you able to see all her arrivals and departures on the website? Is the problem you dont have a stamp or the entry is not showing up in the system?

[Pickle_slushy 4]

2 minutes ago, Villanelle said:

Did you check her i94 online and nothing showed up or are you able to see all her arrivals and departures on the website? Is the problem you dont have a stamp or the entry is not showing up in the system?

On the official I-94 website she has no information available for I-94. The only thing thst shows up is her arrival/departure history. I'm not sure if this is considered an issue or not. I really don't understand if it's normal for her to have not received a I-94 at all

[Pickle_slushy 4]

We are considering switching from K1 process and instead marrying and doing AOS from the states while she is here.

 

I am confused on the I-944 public charge form... If she legally cannot work here, how can she provide sufficient income proof? I make enough to support her, but am I able to put my income and assets on there as well? I thought this is the point of the I-864 affidavit of support? 

[pushbrk 12,085]

14 minutes ago, Pickle_slushy said:

We are considering switching from K1 process and instead marrying and doing AOS from the states while she is here.

 

I am confused on the I-944 public charge form... If she legally cannot work here, how can she provide sufficient income proof? I make enough to support her, but am I able to put my income and assets on there as well? I thought this is the point of the I-864 affidavit of support? 

She tells the truth.  Sometimes answers are $0, or NONE, etc.

[Pickle_slushy 4]

5 minutes ago, pushbrk said:

She tells the truth.  Sometimes answers are $0, or NONE, etc.

Huh? I realize that, but am allowed to use my income as well? 

[pushbrk 12,085]

You use the I-864 as sponsor.

 

[NikLR 13,220]

~~moved to AOS from work, tourist, or student visa from IR1/CR1 process and procedures. Topic is about AOS within USA while visiting instead of K1 ~~

[Ban Hammer 12,829]

related topics merged

[Villanelle 4,121]

15 hours ago, Pickle_slushy said:

On the official I-94 website she has no information available for I-94. The only thing thst shows up is her arrival/departure history. I'm not sure if this is considered an issue or not. I really don't understand if it's normal for her to have not received a I-94 at all

The records can be electronic and you wouldnt have a paper copy of it. Thats different from if you were given a paper and lost it. Check out this link and see if it helps you make sense of it all.- https://www.cbp.gov/sites/default/files/assets/documents/2016-Mar/i-94-automation-fact-sheet.pdf   and or- https://www.cbp.gov/sites/default/files/assets/documents/2016-Mar/i-94-automation-fact-sheet.pdf   Contact CBP if you need help or if something is missing that shouldnt be, but it sounds like its all there and you are just confused about not having a paper version. 

[bradoony 54]

15 hours ago, Pickle_slushy said:

Huh? I realize that, but am allowed to use my income as well? 

YES, the financial part of I-944 is for the household, so your income as well 

[Henry357 70]

If she entered at a land border she was likely admitted as n/c or “non-controlled”.  No I-94 would be generated.  
 

Her entry should still show up on the CBP website so no issue.  

Edited July 10, 2020 by Henry357

[geowrian 22,335]

Canadians who enter by land via their passport are supposed to be issued an electronic I-94 now. This was not the norm years ago, but is generally an expectation now. If CBP swiped the travel document, it should have generated an electronic I-94 record. That said, it's absolutely not unheard of for them to to not swipe or stamp a passport.

If not issued an I-94, a Canadian is treated as D/S for terms of determining any unlawful presence. (https://asistahelp.org/wp-content/uploads/2018/10/USCIS-Interoffie-Memo-Consolidation-Guidance-Concerning-Unlawful-Presence-for-Purposes-of-Aections-212a9Bi-and-212a9C.pdf, page 25).

 

Your options now to AOS are:

1) File now and state that no I-94 was issued. USCIS tends to accept this for Canadians, but there is no guarantee and the burden if they challenge it falls on the applicant to demonstrate that they were inspected. So there is a bit o fa risk, but many people have done so successfully.

2) Stop by a CBP deferred inspection site and see if they can issue an I-94 now.

3) File a I-102 to try to find if an I-94 was issued or not (the website is not perfect...the lack of an entry does not absolutely mean there is none).

 

Personally, I would try #2 first if possible. Then #1. Number 3 is the least likely to be fruitful IMO (if it turns out they didn't actually issue an I-94, then this does not provide any progression and is a decent chunk of time and money sunk).

 

18 hours ago, Pickle_slushy said:

If she legally cannot work here, how can she provide sufficient income proof? I make enough to support her, but am I able to put my income and assets on there as well? I thought this is the point of the I-864 affidavit of support? 

She can't (unless her income source does not involve engagement in employment activities). Her sponsor (you) would need to demonstrate sufficient income/assets to convince the IO that she will not become a public charge.

She will provide a work history/field, education background, etc., which will be considered by the IO as well. See https://www.uscis.gov/sites/default/files/policymanual/resources/Appendix-TotalityoftheCircumstancesFramework.pdf.