Can my pregnant wife who entered on a B2 visa stay in the US while I-485 processing?

[mangolover 2]

Hi all, 

As the title reads, my wife is a Canadian citizen who spent 6 months in the US recently as a B2 visitor. Towards the end of her visit, we ended up getting married and she returned home to Canada. We soon found out we were expecting our first child together and she just returned on a B2 visa expiring in mid-may 2022, and we decided to file an I-130 and I-485. In normal circumstances, she'd probably return to Canada for a few months however since she's pregnant, it's really important for her to be in one place for consistent prenatal care. There's some conflicting advice online about "the authorization" to stay in the US while the 485 is pending. We've already filed the I-130 and are preparing the I-485 packet to send off this week.

 

Some sites state that she would be allowed to stay while the application is pending and while her B2 visitor visa would be marked as "overstayed", it would be retroactively rectified pending approval of our applications. Other sites state that what we're doing is immigration fraud as she's here on a B2 visitor visa which implies intent to return. 

 

Additional info: She managed to come back, despite already spending ~7 months here in the past 12 months, due to a kind US customs agent, who let her in and gave her a one month entry to "figure things out" which we're hurrying to do. 

 

Please help. Any advice is much appreciated!

[mushroomspore 3,044]

15 minutes ago, mangolover said:

Hi all, 

As the title reads, my wife is a Canadian citizen who spent 6 months in the US recently as a B2 visitor. Towards the end of her visit, we ended up getting married and she returned home to Canada. We soon found out we were expecting our first child together and she just returned on a B2 visa expiring in mid-may 2022, and we decided to file an I-130 and I-485. In normal circumstances, she'd probably return to Canada for a few months however since she's pregnant, it's really important for her to be in one place for consistent prenatal care. There's some conflicting advice online about "the authorization" to stay in the US while the 485 is pending. We've already filed the I-130 and are preparing the I-485 packet to send off this week.

 

Some sites state that she would be allowed to stay while the application is pending and while her B2 visitor visa would be marked as "overstayed", it would be retroactively rectified pending approval of our applications. Other sites state that what we're doing is immigration fraud as she's here on a B2 visitor visa which implies intent to return. 

 

Additional info: She managed to come back, despite already spending ~7 months here in the past 12 months, due to a kind US customs agent, who let her in and gave her a one month entry to "figure things out" which we're hurrying to do. 

 

Please help. Any advice is much appreciated!

You should only be getting your info from the USCIS official website. I can't find the exact link right now but there is a USCIS webpage that plainly states that if you leave the US after filing I-485 but without Advanced Parole (Form I-131, free to file with I-485), you are considered to have abandoned your adjustment process and cannot re-enter until you receive the proper visa, which would be through the consulate and your clock resets to 0.

 

Actually I found the webpage. It's at the bottom.

 

https://www.uscis.gov/green-card/while-your-green-card-application-is-pending-with-uscis

Edited May 2, 2022 by mushroomspore

[Timona 4,207]

Yes she can stay. Just make sure she doesn't leave without getting AP

[Chancy 6,241]

*** Moved from Bringing Family of USC forum to AOS from Work/Student/Tourist Visas forum, and removed duplicate thread.  Please post your related questions in this thread to keep the discussion in one place. ***

 

14 minutes ago, mangolover said:

Some sites state that she would be allowed to stay while the application is pending and while her B2 visitor visa would be marked as "overstayed", it would be retroactively rectified pending approval of our applications.

 

If your wife stays beyond her I-94 expiry date, she will be out of status and her B2 will be marked as overstayed.  There is no retroactive correction of B2 overstay, even if she files I-485.  That's a consequence of adjustment of status that you both will have to accept.  Even if she will be out of status, she will be authorized to stay in the US while her I-485 is pending.  As mentioned above, she should not leave the US before she gets her AP travel permit or her green card.

 

Just checking -- are you a US citizen?

 

[Redro 4,611]

1 hour ago, mangolover said:

Hi all, 

As the title reads, my wife is a Canadian citizen who spent 6 months in the US recently as a B2 visitor. Towards the end of her visit, we ended up getting married and she returned home to Canada. We soon found out we were expecting our first child together and she just returned on a B2 visa expiring in mid-may 2022, and we decided to file an I-130 and I-485. In normal circumstances, she'd probably return to Canada for a few months however since she's pregnant, it's really important for her to be in one place for consistent prenatal care. There's some conflicting advice online about "the authorization" to stay in the US while the 485 is pending. We've already filed the I-130 and are preparing the I-485 packet to send off this week.

 

Some sites state that she would be allowed to stay while the application is pending and while her B2 visitor visa would be marked as "overstayed", it would be retroactively rectified pending approval of our applications. Other sites state that what we're doing is immigration fraud as she's here on a B2 visitor visa which implies intent to return. 

 

Additional info: She managed to come back, despite already spending ~7 months here in the past 12 months, due to a kind US customs agent, who let her in and gave her a one month entry to "figure things out" which we're hurrying to do. 

 

Please help. Any advice is much appreciated!

Have you checked the process of adding your wife to your health insurance? 

I believe marriage is a qualifying event but if you got married during her previous visit adding her now/ after filing adjustment might not be possible. 

Accessing prenatal care in Canada might be the better decision. 

Edited May 2, 2022 by ROK2USA

[mangolover 2]

10 hours ago, Chancy said:

*** Moved from Bringing Family of USC forum to AOS from Work/Student/Tourist Visas forum, and removed duplicate thread.  Please post your related questions in this thread to keep the discussion in one place. ***

 

 

If your wife stays beyond her I-94 expiry date, she will be out of status and her B2 will be marked as overstayed.  There is no retroactive correction of B2 overstay, even if she files I-485.  That's a consequence of adjustment of status that you both will have to accept.  Even if she will be out of status, she will be authorized to stay in the US while her I-485 is pending.  As mentioned above, she should not leave the US before she gets her AP travel permit or her green card.

 

Just checking -- are you a US citizen?

 

Yes, born and raised here. 

[mangolover 2]

10 hours ago, ROK2USA said:

Have you checked the process of adding your wife to your health insurance? 

I believe marriage is a qualifying event but if you got married during her previous visit adding her now/ after filing adjustment might not be possible. 

Accessing prenatal care in Canada might be the better decision. 

I've been able to add her to my health insurance. Marriage and birth are two of the qualifying events.

While accessing prenatal care in Canada might be the better and cheaper decision, two things to consider: we could be separated for the duration of this application process and while I can always visit Canada, I want to be actively involved in the birth of my first born. Secondly, our child born in Canada would have to go through the same I-485 process as some point. 

[Dashinka 24,591]

10 minutes ago, mangolover said:

I've been able to add her to my health insurance. Marriage and birth are two of the qualifying events.

While accessing prenatal care in Canada might be the better and cheaper decision, two things to consider: we could be separated for the duration of this application process and while I can always visit Canada, I want to be actively involved in the birth of my first born. Secondly, our child born in Canada would have to go through the same I-485 process as some point. 

If she chooses to go back to Canada for whatever reason, then the I485 process is not warranted, so think about that if you haven't already filed that package.  If she does go back and your child is born in Canada, you can do the CRBA process to get them their USC status.

 

When you filed the I130, did you choose AOS in the US or consular processing.  If you chose AOS, then you may have to file the I824 to switch to consular processing if the two of you decide it is best to go back to Canada.

 

Good Luck!

[Redro 4,611]

37 minutes ago, mangolover said:

I've been able to add her to my health insurance. Marriage and birth are two of the qualifying events.

While accessing prenatal care in Canada might be the better and cheaper decision, two things to consider: we could be separated for the duration of this application process and while I can always visit Canada, I want to be actively involved in the birth of my first born. Secondly, our child born in Canada would have to go through the same I-485 process as some point. 

As you are a US citizen from birth if your child was born in Canadian they would have claim to US citizenship and you'd go through the CRBA process. 

https://ca.usembassy.gov/u-s-citizen-services/child-family-matters/birth/

Not sure about Canadian citizenship if the child is born in the US but I believe @Mike E might have some knowledge on that matter. 

 

I-485 is for adjusting status in the US. 

Either way, if you decide to file the I-485 your wife needs to stay in the US until she receives advanced parole. Make sure to file the I-131. 

 

 

[JeanneAdil 6,540]

child would have dual citizenship if birthed in Canada 

and CBRA done for US 

 

As for pregnancy ??? is she able to travel?  like does she have to fly?   when is the baby due?

i ask as most airlines have the following policy

 

During a healthy pregnancy, it’s generally safe to fly until 36 weeks. Most airlines in the United States allow pregnant women to fly domestically in their third trimester before the 36th week. Some international flights restrict travel after 28 weeks.

 

[mangolover 2]

1 hour ago, Dashinka said:

If she chooses to go back to Canada for whatever reason, then the I485 process is not warranted, so think about that if you haven't already filed that package.  If she does go back and your child is born in Canada, you can do the CRBA process to get them their USC status.

 

When you filed the I130, did you choose AOS in the US or consular processing.  If you chose AOS, then you may have to file the I824 to switch to consular processing if the two of you decide it is best to go back to Canada.

 

Good Luck!

Ideally, we'd like to stay here during this process to prevent back and forth. When we filed I130, we chose AOS in the US -- fairly certain we didn't select consular processing.

[mangolover 2]

21 minutes ago, JeanneAdil said:

child would have dual citizenship if birthed in Canada 

and CBRA done for US 

 

As for pregnancy ??? is she able to travel?  like does she have to fly?   when is the baby due?

i ask as most airlines have the following policy

 

During a healthy pregnancy, it’s generally safe to fly until 36 weeks. Most airlines in the United States allow pregnant women to fly domestically in their third trimester before the 36th week. Some international flights restrict travel after 28 weeks.

 

She's currently here and unless advised otherwise, would like to remain here as she likes her doctor and prenatal care options so far. She's not planning to travel during this time and probably not anytime soon after the birth either. Baby is due in October.

[mangolover 2]

38 minutes ago, ROK2USA said:

As you are a US citizen from birth if your child was born in Canadian they would have claim to US citizenship and you'd go through the CRBA process. 

https://ca.usembassy.gov/u-s-citizen-services/child-family-matters/birth/

Not sure about Canadian citizenship if the child is born in the US but I believe @Mike E might have some knowledge on that matter. 

 

I-485 is for adjusting status in the US. 

Either way, if you decide to file the I-485 your wife needs to stay in the US until she receives advanced parole. Make sure to file the I-131. 

 

 

Thank you kindly. Preference would be for both mom and child to stay in the US during the process and for the birth to take place here. We just want to avoid any unnecessary back and forth as long we're doing everything by the law. IF she can stay here while I-485 is processing, we can manage that. Just want to make sure we're not burning any bridges with her staying during the application. We plan to concurrently apply for I-131 and I-765 with the I-485.

[JeanneAdil 6,540]

2 minutes ago, mangolover said:

She's currently here and unless advised otherwise, would like to remain here as she likes her doctor and prenatal care options so far. She's not planning to travel during this time and probably not anytime soon after the birth either. Baby is due in October.

congratulaitons

 

get all the forms started for the AOS ,  EAD and AP

she won't be able to travel till AP but family in Canada,  at least ,  can visit to see the newborn

 

keep a timeline up to date and let us all know the progress as it helps the VJ community with queries

[JeanneAdil 6,540]

2 minutes ago, mangolover said:

Thank you kindly. Preference would be for both mom and child to stay in the US during the process and for the birth to take place here. We just want to avoid any unnecessary back and forth as long we're doing everything by the law. IF she can stay here while I-485 is processing, we can manage that. Just want to make sure we're not burning any bridges with her staying during the application. We plan to concurrently apply for I-131 and I-765 with the I-485.

the baby would not have to adust/  baby will be USC at birth 

a real Texan