Complicated case: Applying US citizenship ,Canada PR and much more!

[Desi4ever]

I'm a US LPR since Oct 2004 and I would like to apply for US citizenship when I qualify ~ July 2009.

I got married after I got my green card.

My wife and I are currently citizens of India.

My wife entered USA on B2 visa and coverted to H1-B.
She is currently out of status , but her H1-B is still retained by her employer and her employer is actively looking for a contracting job position.

We consulted a couple of immigration attorneys and both of them suggested she stay in the US till she gets her green card in hand.i.e after I become a citizen around Jan 2010 , sponsor her green card and wait for the card to arrive. They highly cautioned that if she leaves for India there are very slim chances of her being able to come back to US on a valid visa even if she starts working from now. She is out of status for about 9 months ever since she delivered a child in Nov 2007.

The attorneys we consulted refused to answer any questions related to getting Canada LPR and its implications.

We want to apply for Canadian green card from US as a backup incase my wife needs to go to India for an emergency or any sort of urgent family situation as the wait time for her US green card is about 2 1/2 years from now.

1. If I'm added as an applicant to my wife's Canadian PR application , will the USCIS reject my application for US Citizenship since I showed my intentions of becoming a permanent resident of another country ?

2. If my wife gets Candian PR , can she travel to USA without a visa just like a US green card holder can travel to Canada without a visa ?

[TheRealCanadian]

Originally Posted by Desi4ever

They highly cautioned that if she leaves for India there are very slim chances of her being able to come back to US on a valid visa even if she starts working from now. She is out of status for about 9 months ever since she delivered a child in Nov 2007.

You need to find different attorneys, preferably competent ones.

Unless she has stayed past the expiration of her I-94 or USCIS has sent her a formal notice saying that she is out of status, then she is not accumulating illegal presence and therefore the clock for the 3/10 year re-entry bars has not started ticking.

As with anything to do with the 3/10 year bars, I would strongly urge you to seek competent counsel, but I would suggest that before you trust them (never mind pay them), you ask them to describe the difference between being out of status and illegally present. If they are unaware of the difference, run away.

If my wife gets Candian PR , can she travel to USA without a visa just like a US green card holder can travel to Canada without a visa ?

No, she gains no visa exemption and more importantly based on your concerns if she in fact does hit the 3/10 year bars she remains inadmissible.

This Canadian PR business strikes me as a fantastic waste of time.

[Desi4ever]

Thanks

Her I-94 expires in July 2009.

Both attorneys mentioned that the moment she is not on payroll she becomes out of status and once you are out of status it stays in her record till she files I-485 from within USA.

One attorney said the consulate abroad does not like the fact she converted from B2 to H1-B while the other attorney thought its because she is out of status she is very likely to get barred.

Anyways we are prepared to move to Canada if she gets barred for either 3 or 10 years should she leave for India before her I-485 is approved.

So the question is

If I'm added as an applicant to my wife's Canadian PR application , will the USCIS reject my application for US Citizenship since I showed my intentions of becoming a permanent resident of another country ?

[TheRealCanadian]

Originally Posted by Desi4ever

Both attorneys mentioned that the moment she is not on payroll she becomes out of status and once you are out of status it stays in her record till she files I-485 from within USA.

Sure. But if she files an I-485 as an Immediate Relative of a US citizen then her out of status period has no impact. The I-485 cannot be denied on this basis.

One attorney said the consulate abroad does not like the fact she converted from B2 to H1-B while the other attorney thought its because she is out of status she is very likely to get barred.

To the first attorney, so what? To the second attorney, he's an idiot. The 3/10 year bars are non-discretionary. Either you meet the requirements and the bars cannot be waived or you do not and they cannot be applied.

Find better attorneys.

[Triple Citizen]

You have no idea how much angry I get when I see people applying for Canadian PR just for backup

Originally Posted by TheRealCanadian

This Canadian PR business strikes me as a fantastic waste of time.

[Dedo]

Originally Posted by Desi4ever

She is out of status for about 9 months ever since she delivered a child in Nov 2007.

Why did you not convert her to a dependent visa when she stopped working? why put her out of status?

[Desi4ever]

You have no idea how much angry I get when I see people applying for Canadian PR just for backup

We prefer to live in USA and Canada is the second choice of work/residence to me and I don't think I need to explain why. No need to be angry or upset with our choice especially when I'm paying the costs associated with Canadian immigration.

[TheRealCanadian]

Originally Posted by Dedo

Why did you not convert her to a dependent visa when she stopped working? why put her out of status?

There is no dependent visa for her to convert to.

[Desi4ever]

Sure. But if she files an I-485 as an Immediate Relative of a US citizen then her out of status period has no impact. The I-485 cannot be denied on this basis.

I think I did not properly communicate in my previous posts. Infact both the attorneys encouraged my wife to stay back in the US and assured that her I-485 will have no problems whatsoever.

The problem is that I still have another year to apply for my US citizenship + processing times and another year wait for her I-485 to get approved. So we are talking about 2.5 years wait time from now. Thus in the years time period she cannot travel overseas and travelling overseas may well mean that she cannot come back to USA for 3/10 years .Even after I become a citizen of USA the bar continues to be in effect.

So we want to apply for Canadian PR as a backup incase she happens to travel during 2.5 years window.

[TheRealCanadian]

Originally Posted by Desi4ever

So we want to apply for Canadian PR as a backup incase she happens to travel during 2.5 years window.

I'm starting to see your problem, but I'm unsure how Canadian PR is going to solve it.

For those following at home, Desi4ever's wife will not accumulate any illegal presence until July 2009. The problem is that he cannot file the N-400 until then, or naturalize until October 2009, and her I-485 cannot be filed until he does. So unless there's a miracle and he does the Oath by January 2010, she's going to accumulate 180 days of illegal presence and the 3-year re-entry bar will kick in. In July 2010 the 10-year bar applies.

So she needs to leave the US by the end of 2009. Canadian PR may help her because it'll save her from having to go back to India, but that's all it's going to do. It's not going to waive her visa requirements, and if her husband is a Permanent Resident it'll be almost impossible for her to overcome 214b (immigrant intent). So Canadian PR does nothing there.

The danger with Desi4Ever applying for Canadian Permanent Residence is that if he lands in Canada, USCIS could argue that his trip abandoned US residency. After all, he entered Canada and told Canadian immigration that he intended to live there permanently, and USCIS is quite clear that trips of any duration can be construed as abandonment of residency if his intent was not temporary. And landing as a "permanent" resident in another country is by definition not temporary. USCIS could legitimately ask at his interview, "were you lying then, or are you lying now?"

So if Desi4ever's wife wants to immigrate to Canada as a backup, she can do so. But he should not, and I still think the simplest solution is for her not to travel.

[Desi4ever]

For those following at home, Desi4ever's wife will not accumulate any illegal presence until July 2009

According to the attorneys , she is already out of status ever since she stopped working. One of the attorneys clarified that just having an I-94 till so-and-so date or H1-B approval does not keep one in status. To be in status on H1B, one must be on a payroll ( only exception being 12 weeks of FMLA ).

I plan to apply along with my for Canada PR only if its safe to do so and not act as a deterrent to my US citizenship application. I also will not land in Canada until I get my US passport. So no danger of losing any US status.

For example , I qualify in July 2009 to apply for US citizenship and if I apply my Canada PR now I may get approved in say May 2009. But since I dont want to risk landing in Canada I would wait for my US citizenship to be approved say Jan 2010.

What's maximum time allowed to land in Canada after Canada PR is approved ? I'm asking this so that I time my Canada PR application right. I don't want to end up being approved of Canada PR way before I get my US passport thereby losing Canada PR rights.



Thanks!

[nelsona]

Desi, as TRC correctly stated, she is NOT accumulating illegal presence. Being out-of-status -- while not ideal -- is NOT the same as illegal presence. "The attorneys" (I find it hard to think more than one would need to answer this) should have pointed this out to you.

As has been pointed out, the impending scenarios are not improved by chasing a Cdn PR.

[Desi4ever]

I understand the difference between out-of-status and illegal presence.

Here is my understanding for the benefit of those who are reading

Out of status : The person entered the USA legally , but could not maintain his legal status. Eg People who entered USA on B2 ( visit ) visa and overstayed their I-94 date. People that entered USA on a H1-B/L1 visa, lost their jobs and continue to stay in USA for an extended period of time without a job. This is less offensive and thus forgiven during I-485 process.

Illegal : Entered USA without a visa via a boat or something and stayed back in USA. Such people have absolutely no chance of getting back to USA when they leave the country. Not sure if their I-485 gets approved or not when married to a US citizen.

Anyways, the implications when the consulate abroad finds out that one is out of status is either a 3 year ban or 10 year ban.

Our intention to obtain a Canada PR is NOT to improve our US immigration situation but to live and work in Canada as an alternative.

[nelsona]

Originally Posted by Desi4ever

I understand the difference between out-of-status and illegal presence.

Here is my understanding for the benefit of those who are reading

Out of status : The person entered the USA legally , but could not maintain his legal status. Eg People who entered USA on B2 ( visit ) visa and overstayed their I-94 date. People that entered USA on a H1-B/L1 visa, lost their jobs and continue to stay in USA for an extended period of time without a job. This is less offensive and thus forgiven during I-485 process.

Illegal : Entered USA without a visa via a boat or something and stayed back in USA. Such people have absolutely no chance of getting back to USA when they leave the country. Not sure if their I-485 gets approved or not when married to a US citizen.

Anyways, the implications when the consulate abroad finds out that one is out of status is either a 3 year ban or 10 year ban.

Wrong. So wrong in fact that I'm not even going to start to unravel the tangled mess you just wrote.

In any event, that is for your crack team of lawyers to figure out.


And, please, don't talk out of both sides of your mouth as to why you want Cdn PR. You stated why at the outset.

[TheRealCanadian]

Originally Posted by Desi4ever

Eg People who entered USA on B2 ( visit ) visa and overstayed their I-94 date.

Wrong. The overstay is illegal presence.

As Nelson suggests, you do not have a clear understanding of the issue. Your wife is out of status, but not yet illegally present.

[Desi4ever]

Okay . can anyone of you explain or point me about the difference between out of status and illegal presence ?

[TheRealCanadian]

Originally Posted by Desi4ever

Okay . can anyone of you explain or point me about the difference between out of status and illegal presence ?

You are only illegally present if you overstay an I-94 or USCIS formally determines that you are out of status and tells you in writing. Your wife is out of status, since she is not working. She will not be illegally present until a) her I-94 expires, or b) USCIS informs her in writing that her H-1 has been canceled based on employer request or a formal determination on USCIS' part that she has violated her status.

[ginnu]

Originally Posted by Desi4ever

For those following at home, Desi4ever's wife will not accumulate any illegal presence until July 2009

According to the attorneys , she is already out of status ever since she stopped working. One of the attorneys clarified that just having an I-94 till so-and-so date or H1-B approval does not keep one in status. To be in status on H1B, one must be on a payroll ( only exception being 12 weeks of FMLA ).

I plan to apply along with my for Canada PR only if its safe to do so and not act as a deterrent to my US citizenship application. I also will not land in Canada until I get my US passport. So no danger of losing any US status.

For example , I qualify in July 2009 to apply for US citizenship and if I apply my Canada PR now I may get approved in say May 2009. But since I dont want to risk landing in Canada I would wait for my US citizenship to be approved say Jan 2010.

What's maximum time allowed to land in Canada after Canada PR is approved ?
--------------------one year from the date of medicals. No extension is given for landing and PR visa is not extended.
I'm asking this so that I time my Canada PR application right. I don't want to end up being approved of Canada PR way before I get my US passport thereby losing Canada PR rights.

----------------I dont know who is going to be primary applicant for Canada PR. Primary applicant need to Land with dependent or dependent can land before Canada PR visa stamp expiry date.

Thanks!

-----------

[Triple Citizen]

My anger has nothing to do with who is paying the monetary cost. A backup immigrant by putting his/her case in the works, delays a genuine immigrant who really wants to make Canada his/her home. That angers me.
While I was living in Canada (1997-2003) I saw how so called new immigrants abused Canadian PR status. Pre-2001, Commonwealth citizens who held Canadian PR status were allowed visa free entry to the US. I know people who were refused US visit visas. Those people then underwent the Canadian PR process, entered Canada and the next day entered the US, only to disappear. The bad ones never returned. The worst ones did, after 3 years, to apply for Canadian citizenship.
As a Canadian this does anger me. Nothing personal, so please do not take it that way.

Originally Posted by Desi4ever

We prefer to live in USA and Canada is the second choice of work/residence to me and I don't think I need to explain why. No need to be angry or upset with our choice especially when I'm paying the costs associated with Canadian immigration.

[mmed]

Originally Posted by Triple Citizen

My anger has nothing to do with who is paying the monetary cost. A backup immigrant by putting his/her case in the works, delays a genuine immigrant who really wants to make Canada his/her home. That angers me.
While I was living in Canada (1997-2003) I saw how so called new immigrants abused Canadian PR status. Pre-2001, Commonwealth citizens who held Canadian PR status were allowed visa free entry to the US. I know people who were refused US visit visas. Those people then underwent the Canadian PR process, entered Canada and the next day entered the US, only to disappear. The bad ones never returned. The worst ones did, after 3 years, to apply for Canadian citizenship.
As a Canadian this does anger me. Nothing personal, so please do not take it that way.

It is not just that, many have multiple I-485 immigrant visa application to the US all as backups (for sure with H and may be other status in addition to thousands apply for EAD without using it and using the visa, also as backups). The USCIS count those applications as different applicants and they make the line very long for themselves and for others whom in real need for immigrant visa or an EAD on time to use it.

[Desi4ever]

Originally Posted by Triple Citizen

My anger has nothing to do with who is paying the monetary cost. A backup immigrant by putting his/her case in the works, delays a genuine immigrant who really wants to make Canada his/her home. That angers me.
While I was living in Canada (1997-2003) I saw how so called new immigrants abused Canadian PR status. Pre-2001, Commonwealth citizens who held Canadian PR status were allowed visa free entry to the US. I know people who were refused US visit visas. Those people then underwent the Canadian PR process, entered Canada and the next day entered the US, only to disappear. The bad ones never returned. The worst ones did, after 3 years, to apply for Canadian citizenship.
As a Canadian this does anger me. Nothing personal, so please do not take it that way.

I think your anger is misdirected to some extent. If the US immigration did not have such illogical rules, I would not have even applied for Canadian immigration. I hope you understand what US LPR families go through because of the fact that the LPR got married after he/she got the LPR. I'm not sure to what extent the genuine Canadian immigrant's visa application gets delayed. If filed from USA it just takes like a year to get a Canadian PR. Yes there have been visa abuse both in US and in Canada. For eg there are have been high rejections for B2 visas especially from India. Why ? A lot of people with B2 visa have entered USA and stayed back forever. My sister-in-law's B2 visa application got rejected recently. She has no intentions to stay back in US and is very happy to be in India, but the visa officers see younger people as potential immigrants!

The USCIS count those applications as different applicants and they make the line very long for themselves and for others whom in real need for immigrant visa or an EAD on time to use it.
Don't you think USCIS needs to streamline their process in this case ?

[Desi4ever]

Originally Posted by nelsona

And, please, don't talk out of both sides of your mouth as to why you want Cdn PR. You stated why at the outset.

yeah ..but nobody understood why

[mmed]

Originally Posted by Desi4ever

The USCIS count those applications as different applicants and they make the line very long for themselves and for others whom in real need for immigrant visa or an EAD on time to use it[/I].
Don't you think USCIS needs to streamline their process in this case ?

I do not think there is any way for USCIS to streamline their process with millions of applications which need endless clerk work for thousands of applicants under different categories or may be in the same category. I do not see why person with H visa valid for many year apply for EAD or the reverse and make both lines very long, why person with AP apply for H stamp, why person with US GC apply for Canadian GC with 0 intention to live in Canada. I attend meeting with the ombudsman where he said there is 15 million names check every year where the actual applicant number is only 2 million!!! then all of us complain from the long line of name check for months and may be years. For sure the USCIS will not issue legislation to prohibit those backup applications with the humongous income from that; we are the ones who should do that.

[Triple Citizen]

Consuls have no choice. By law they have to consider every non-immigrant visa applicant, regardless of age, as a potential immigrant.

Originally Posted by Desi4ever

but the visa officers see younger people as potential immigrants!