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

[wagecuck3 31]

20 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

If she has no I-94, then she should submit a copy of her stamped passport page evidencing the date of lawful admission. In addition, since the entry shows up on the arrival/departure history, USCIS has access to that information and can verify the lawful admission. It should not pose an issue.

[Henry357 70]

1 hour ago, geowrian said:

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).

 

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.

Electronic I-94 are never issued at land borders. They are only implemented at sea and air.

 

https://www.ice.gov/doclib/sevis/pdf/i94-fact-sheet.pdf

 

Paper I-94s are still issued at land borders and require you to go into secondary. Since Canadians don’t need one they are only issued when they are sent to secondary and even than rarely. 

 

Edited July 10, 2020 by Henry357

[wagecuck3 31]

1 hour ago, geowrian said:

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).

This is technically true, but misleading in this context. A Canadian citizen still goes out of status after their 6 month admission period expires, and that has consequences for AOS applicants (other than immediate relatives). Furthermore, CBP doesn't use the same rule as USCIS.

 

It doesn't matter in this case assuming that OP's fiancé will apply for adjustment of status after marriage and without leaving the US.

[Henry357 70]

4 minutes ago, Henry357 said:

Electronic I-94 are never issued at land borders. They are only implemented at sea and air.

 

https://www.ice.gov/doclib/sevis/pdf/i94-fact-sheet.pdf

 

Paper I-94s are still issued at land borders and require you to go into secondary. Since Canadians don’t need one they are only issued when they are sent to secondary and even than rarely. 

 

Visiting the U.S. & Arriving via a Land Border?

An I-94 form is needed by all persons except U.S. Citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit. Air and Sea travelers will be issued I-94s during the admission process at the port of entry.
 

https://i94.cbp.dhs.gov/I94/#/home

[wagecuck3 31]

20 hours 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? 

The I-864 and I-944 forms are both required because the I-864 form is an evaluation of the sponsor whereas the I-944 is an evaluation of the immigrant. The sponsor must demonstrate that they have enough income to support the immigrant. The immigrant must demonstrate based on their education, skills, and financial circumstances that if granted a green card, they are not likely to become a public charge. The fact that the immigrant, shortly after arriving in the US, doesn't have US work authorization will not count against them on the I-944.

[Henry357 70]

12 minutes ago, wagecuck3 said:

If she has no I-94, then she should submit a copy of her stamped passport page evidencing the date of lawful admission. In addition, since the entry shows up on the arrival/departure history, USCIS has access to that information and can verify the lawful admission. It should not pose an issue.

Yes it is normal. It has been covered it lots of past threads; however, is less common now due to air travels getting i-94s. 
 

Just write Canadian visitor and include entry-exit info. 

[Henry357 70]

9 minutes ago, wagecuck3 said:

This is technically true, but misleading in this context. A Canadian citizen still goes out of status after their 6 month admission period expires, and that has consequences for AOS applicants (other than immediate relatives). Furthermore, CBP doesn't use the same rule as USCIS.

 

It doesn't matter in this case assuming that OP's fiancé will apply for adjustment of status after marriage and without leaving the US.

The status is technically n/c or non controlled. They would stamp our passports in the 1990s n/c at airports back in the day if they felt like stamping at all, it was rare. 

Edited July 10, 2020 by Henry357

[Allaboutwaiting 2,480]

20 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 I-94 is an arrival/departure record. That is what you saw as her arrival/departure history on the website. There is no issue, it is normal for a land POE.

If you need proof of entries to send for AOS, you can print that arrival/departure history (given there are no passport stamps, visa or physical I-94).

[Pickle_slushy 4]

1 hour ago, wagecuck3 said:

If she has no I-94, then she should submit a copy of her stamped passport page evidencing the date of lawful admission. In addition, since the entry shows up on the arrival/departure history, USCIS has access to that information and can verify the lawful admission. It should not pose an issue.

Well if she had a stamp I'd definitely do that. But unfortunately she was never issued a stamp either. 

[geowrian 22,335]

6 hours ago, Henry357 said:

Electronic I-94 are never issued at land borders. They are only implemented at sea and air.

 

https://www.ice.gov/doclib/sevis/pdf/i94-fact-sheet.pdf

 

Paper I-94s are still issued at land borders and require you to go into secondary. Since Canadians don’t need one they are only issued when they are sent to secondary and even than rarely.

My mistake - I mixed the pilot program with Canadians a few years ago with current policy. You're right - no electronic I-94 is issued at land borders still.

 

6 hours ago, wagecuck3 said:

This is technically true, but misleading in this context. A Canadian citizen still goes out of status after their 6 month admission period expires, and that has consequences for AOS applicants (other than immediate relatives). Furthermore, CBP doesn't use the same rule as USCIS.

 

It doesn't matter in this case assuming that OP's fiancé will apply for adjustment of status after marriage and without leaving the US.

Right. They are treated as D/S and therefore won't accrue unlawful presence unless USCIS or an IJ makes a determination that they are out of status (at which point it start accruing from that point onward). At the same time, their legal status is limited to 6 months. This effectively means they would be out of status after 6 months (and subject to deportation), but aren't accruing unlawful presence.

 

Right, it's moot here as the soon-to-be IR of a USC doing AOS.

Had it been AOS on a basis that requires lawful status, after 6 months (barring EOS/COS) they would not qualify.

[INF 96]

On 7/10/2020 at 10:46 PM, geowrian said:

My mistake - I mixed the pilot program with Canadians a few years ago with current policy. You're right - no electronic I-94 is issued at land borders still.

 

Right. They are treated as D/S and therefore won't accrue unlawful presence unless USCIS or an IJ makes a determination that they are out of status (at which point it start accruing from that point onward). At the same time, their legal status is limited to 6 months. This effectively means they would be out of status after 6 months (and subject to deportation), but aren't accruing unlawful presence.

 

Right, it's moot here as the soon-to-be IR of a USC doing AOS.

Had it been AOS on a basis that requires lawful status, after 6 months (barring EOS/COS) they would not qualify.

I am in the exact situation! What is D/S?

[INF 96]

On 7/9/2020 at 7:23 PM, 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

I realized the exact same thing for me! What did you guys end up doing? I am thinking of writing Canadian visitor and a letter explaining the situation. 

[Pickle_slushy 4]

11 hours ago, INF said:

I realized the exact same thing for me! What did you guys end up doing? I am thinking of writing Canadian visitor and a letter explaining the situation. 

We are just going to print out her border crossing history and send that with our application. 

[INF 96]

On 7/16/2020 at 12:57 PM, Pickle_slushy said:

We are just going to print out her border crossing history and send that with our application. 

Perfect! That’s what I’m thinking of doing too. Who knew that I94s were/were not issued! I do think as Canadians we are low on the list of “fraud” visa applications.