Montreal embassy EB-2 interview wait time-Part 2

[JeanYu 0]

On 1/17/2024 at 12:42 PM, EternalWait said:

If there's nothing in Canada for you that forces you to stay, and eventually you want to move to the States, then I'd suggest you move to the States, even if it is with a nonimmigrant visa, so long as that visa allows you to continue the work in your field of expertise.

When you are getting interviewed for the visa, ensure to prove your genuine nonimmigrant intent and point out that you have filed for consular processing, hence you will return to Canada once you are called for interview.

There is a chance your visa application gets rejected, but I know people who have been able to obtain nonimmigrant visa while being in the consular processing phase of their immigrant visa application (some even post-interview, in their administrative processing, although they got lucky there!).

Once you enter the US, you will at least be able to live in the US until MTL calls you for interview.

 

In fact, if a long enough time has passed and you believe that you can no longer wait for MTL, you can file for AOS. Simply because you entered with a nonimmigrant visa does not mean you can never file for AOS. If that were the case, pretty much everyone in the US that obtained a greencard would be caught for fraud. The test is whether enough time has passed that would justify a change of the original intent. For example, consider the many students in the US who are on a nonimmigrant F1 visa finishing their PhD and file for AOS around their fourth or fifth year of study. Did they commit fraud? You would say no, because even though their original intent was that of a nonimmigrant, enough time has passed that makes sense for them to change their intent. But then what is enough? Four years? what about three or two or one ? Who determines the exact definition of "enough"? 

The answer is the government and in this case, the USCIS . The USCIS has long had the 30-60 day guidance in place, and more recently replaced it with a 90 day. Basically if the applicant files for AOS less than 90days of declaring nonimmigrant intent, there's a presumption of immigration fraud, which the applicant must overcome (by for example providing evidence that their situation has changed). If it's more than 90 days, then the guidance leaves it to the officer whether to not do anything or to ask for more evidence from the applicant to justify their change of intent. Here is a reference on that, but a quick google can give you more info of course:

https://www.lawfirm4immigrants.com/the-90-day-rule-explained/

 

Again, to be absolutely clear, you will need to enter the US with an intent to return to Canada for consular processing, so your nonimmigration intent must be genuine. If a long enough time has passed that you believe warrants a change of intent, and that you have enough evidence for it, then AOS is a legitimate option to explore. But do contact lawyers, esp. those who are more familiar with cases that file AOS for family applicants that are more likely to be in a similar situation.

My lawyer told me that MTL process and AOS can be done in parallel. We can take whichever come first. They are totally separate process.

 

My question is that if you stay in the US for more than 6 months, is there any risk MTL deny your visa?

[Froozion 69]

9 hours ago, JeanYu said:

My lawyer told me that MTL process and AOS can be done in parallel. We can take whichever come first. They are totally separate process.

 

My question is that if you stay in the US for more than 6 months, is there any risk MTL deny your visa?

You need to be in the US to apply for AOS, and you cannot enter on a tourist visa with intent to apply for a green card. So yes then montreal could deny your visa as you would have carried out immigration fraud. 

Also if you stay over 6 months on a tourist visa you will also be in the US illegally and also increasing the chance montreal would deny your green card. 

[TheMaverick 47]

10 hours ago, JeanYu said:

My lawyer told me that MTL process and AOS can be done in parallel. We can take whichever come first. They are totally separate process.

 

My question is that if you stay in the US for more than 6 months, is there any risk MTL deny your visa?

I am not sure that is accurate. I know for sure that if you opted AOS initially and you want to change to consular processing you have to inform USCIS to abandon the AOS. There is a form to fill and then they send the file to NVC. Also to initiate AOS you should ideally be in the US with a visa that has dual intent(H1 or L1). AOS should never be done with a single intent visa because it’s your liability to prove that when you entered there was no intent to immigrate else that will be fraud. Example you initially entered on TN and at that time there was no petition filed and you continued to remain in US and now you file AOS. So you can prove that when you entered there was no intent. In your case once you have filed with NVC and now move to AOS it’s difficult to prove that you did not have intent. Also if you are doing AOS on any single intent visa it should be done 90 days after entering US and ensure you have ample time left for expiry of your visa. You basically cannot exit the country till you don’t get EAD and AP. I would not recommend going AOS on a single intent visa. Just suck it up with Montreal. Your lawyer just wants to make money. 

[mam521 1,805]

1 hour ago, TheMaverick said:

In your case once you have filed with NVC and now move to AOS it’s difficult to prove that you did not have intent.

Just adding the chances of someone who's demonstrated immigrant intent by already filing for a GC and successfully petitioning for a non-immigrant intent visa like a TN is very, very slim.  It's FAR more likely that non-immigrant visa will be instantly denied.  It could negatively impact the pending GC application, too.  

[TheMaverick 47]

25 minutes ago, mam521 said:

Just adding the chances of someone who's demonstrated immigrant intent by already filing for a GC and successfully petitioning for a non-immigrant intent visa like a TN is very, very slim.  It's FAR more likely that non-immigrant visa will be instantly denied.  It could negatively impact the pending GC application, too.  

I am on a TN visa and I successfully renewed my visa while waiting for Montreal. As long as you process via consular processing, intent is expressed only when you go for your visa interview. Filing of I-140 does not indicate intent. Also submitting a DS-260 does not express intent.

 

 

Edited January 26 by TheMaverick

[Froozion 69]

3 minutes ago, TheMaverick said:

I am on a TN visa and I successfully renewed my visa while waiting for Montreal. As long as you process via consular processing, intent is expressed only when you go for your visa interview. Filing of I-140 does not indicate intent. Also submitting a DS-260 does not express intent.

 

Had you already submitted the i140 when you applied for the TN the first time? Where in the visa process were you the first time you applied for TN. I'm sure it's easier to renew...

We had not went down the TN route as we thought it may affect our green card chances. 

 

[Froozion 69]

15 minutes ago, TheMaverick said:

I am on a TN visa and I successfully renewed my visa while waiting for Montreal. As long as you process via consular processing, intent is expressed only when you go for your visa interview. Filing of I-140 does not indicate intent. Also submitting a DS-260 does not express intent.

 

 

Another follow up question if you know the answer. 

 

If we move to the US on TN and return to Montreal for the visa interview what would happen if we get put into AP? Would we then be stuck in canada until it's resolved? As we wouldn't be able to get back down on the TN following the interview but before AP is resolved...  any idea on that?

[EternalWait 72]

7 hours ago, Froozion said:

Another follow up question if you know the answer. 

 

If we move to the US on TN and return to Montreal for the visa interview what would happen if we get put into AP? Would we then be stuck in canada until it's resolved? As we wouldn't be able to get back down on the TN following the interview but before AP is resolved...  any idea on that?

Your nonimmigrant status in the US is not cancelled as a result of getting AP'ed in MTL for your IVP. It is likely that when you try to reenter the US on your nonimmigrant visa the border officer asks you some (more) questions, but that's about it.

[EternalWait 72]

8 hours ago, TheMaverick said:

I am on a TN visa and I successfully renewed my visa while waiting for Montreal. As long as you process via consular processing, intent is expressed only when you go for your visa interview. Filing of I-140 does not indicate intent. Also submitting a DS-260 does not express intent.

 

 

Yes, having an approved petition is not proof of intent.

But I would caution that immigration intent is made once you have paid the IV fee and have created your IV case at NVC.

However, as it has been said before, even then, there is an argument for nonimmigrant intent that one can make: having a pending interview actually illustrates your intent to return to Canada once you are called for interview, therefore a factor that should be viewed as pushing you to leave the US (esp. once your nonimmigrant visa expires).

@Froozion: related to your question: there are people who have even been AP'ed and then have applied for TN at the land border and have been able to enter the US. It's all a matter of convincing the officer at the land border that your nonimmigrant intent is genuine by reminding them that you will return to Canada if your AP clears and more importantly, that your ties to Canada compel you to return once the TN visa is over (you've not sold your house, you have immediate family members in Canada, or that for example you will be working for the same company but in their  US branch, etc.).

[EternalWait 72]

21 hours ago, JeanYu said:

My lawyer told me that MTL process and AOS can be done in parallel. We can take whichever come first. They are totally separate process.

 

My question is that if you stay in the US for more than 6 months, is there any risk MTL deny your visa?

I should have perhaps clarified (don't remember if this was already in my answer) that the nonimmigrant status can not be that of a visitor before filing for AOS. Although ... there is a way to do even that (see the link I sent), but it is only accepted in exceptional circumstances, e.g. if you can show real undue hardship if you were to return to your country. So forget about it unless that applies to you.

[TheMaverick 47]

19 hours ago, Froozion said:

Another follow up question if you know the answer. 

 

If we move to the US on TN and return to Montreal for the visa interview what would happen if we get put into AP? Would we then be stuck in canada until it's resolved? As we wouldn't be able to get back down on the TN following the interview but before AP is resolved...  any idea on that?

I don’t think there will be an issue to travel back to the US on a TN if your put in AP. TN is a non immigrant visa just like a B1/B2 and most of the  non immigrant visa excluding H1 and L1 have single intent. But on the DS5535 blog there are tons of users who were put in AP and have travelled back to US on their Canadian passport which is basically a visitor entry. So the data is very clear that there is no issue because you already showed intent for consular processing rather than AOS. The rule is very clear that you should not have an immediate intent but you can have a future intent. However your answers at the border need to be well defined. It always has to indicate that you have intent to leave the country. Being put in AP is a good reason because you will have to leave the country for a next set of medicals and drop passport at Montreal. Currently AP in Montreal is taking approx 6-18 months to clear. 

[Froozion 69]

Thank you both for your detailed replies! We are already working for a US company, so we will get the ball rolling on the TN route while we wait for consular processing! 

[TheMaverick 47]

1 hour ago, Froozion said:

Thank you both for your detailed replies! We are already working for a US company, so we will get the ball rolling on the TN route while we wait for consular processing! 

So just for your reference you should look at this memo. It clearly indicates you can have future intent. Also as I mentioned earlier, intent is not established until you go for the interview. Even after the interview being in AP  is sufficient evidence that immediate intent is temporary since you will leave the country. 

https://chicagoimmigrationattorney.net/images/stories/tn-nafta-applicant-may-file-140.pdf

[LAB_BD 4]

On 1/26/2024 at 2:40 PM, TheMaverick said:

 

 

On 1/26/2024 at 2:40 PM, TheMaverick said:

I am on a TN visa and I successfully renewed my visa while waiting for Montreal. As long as you process via consular processing, intent is expressed only when you go for your visa interview. Filing of I-140 does not indicate intent. Also submitting a DS-260 does not express intent.

 

 

 

Thank you for the detailed explanation. I have been waiting for the IVP interview since October 2022. I am a Canadian citizen. I got a job offer recently. I talked with two lawyers. Both mentioned there is no issue getting a TN visa while waiting for the IVP interview. They also mentioned I might be asked for lot of question regarding my application. 

[Froozion 69]

December stats are out and very little visas issued yet again. At this rate it will be 5 years before ours get issued.