Current Green card holder, marrying girlfriend overstayed visa.

[ac009]

Hi Experts,

I know I will probably eventually need to find an immigration lawyer regarding my situation, but I thought I'd get my research started on here!

I met my girlfriend last year in USA, and my girlfriend and I are planning to get married in the next year. However this is the situation, she came here from a European country on a H2B visa I believe based on a summer work program. Unfortunately she overstayed her visa and it has been 2 years since she overstayed. My girlfriend has a brother As for me, I am a Canadian citizen, and I also have a Permanent residence card in the US since '07 but only started living in the US a year ago.

I moved to the USA a year ago and now I am working full time. I still need to live here another 1.5 years to meet the 30 month minimum physical residency requirement to even begin the naturalization application. We plan on getting married in the USA and getting settled down here. However, her status is up in the air...as I know she can marry me but since I am only a green card holder now, that doesn't grant her automatic access to the green card. What are our options at this point? Is there any point to get married in Canada for her to get a PR card in Canada? We want to build our life in the US as I am working here, so does that help me at all? Should we just get married anyways and wait until I'm naturalized afterwards then start AOS process for her to get her green card? Please enlighten me with what my options are!

Thank you so very much for any advices and suggestions.

 

[del0175]

It is best for her to wait till you are a citizen because then she can get a green card without even leaving the country and triggering a ban. All other options are risky and may present a lot of challenges because too many applications and too many questions asked.

I am not aware of Canadian laws, but if you can get her a Canadian PR card in the meantime, if your plans to live in the US change or something else goes wrong, at least you two can live together in Canada.

 

[ac009]

It is best for her to wait till you are a citizen because then she can get a green card without even leaving the country and triggering a ban. All other options are risky and may present a lot of challenges because too many applications and too many questions asked.

I am not aware of Canadian laws, but if you can get her a Canadian PR card in the meantime, if your plans to live in the US change or something else goes wrong, at least you two can live together in Canada.

Thanks for the quick response. I was afraid that this would be the only option...it sucks for us having to lay low for now and we pretty much can't travel anywhere. But that is definitely better than triggering that 10yr ban. Does marrying before I naturalize change anything, or that doesn't matter?

 

[Jackolantern]

I moved to the USA a year ago and now I am working full time. I still need to live here another 1.5 years to meet the 30 month minimum physical residency requirement to even begin the naturalization application.

In addition to staying in the US for the next 1.5 years to satisfy the physical presence requirement, you may also have to wait another couple years on top of that to satisfy the continuous residence requirement, depending on what your travel history was in 2010-2012.

Does marrying before I naturalize change anything, or that doesn't matter?

While you're a noncitizen, marrying her won't make her eligible for any form of legal immigration status in the US.

As for me, I am a Canadian citizen, and I also have a Permanent residence card in the US since '07 but only started living in the US a year ago.

Were you under 18 when you got the green card back in 2007? Did at least one of your parents obtain US citizenship before you turned 18? If yes to both, you may have derived US citizenship through your parent and don't know it.

Does she have D/S written on the I-94 she got when arriving with her J1 visa? If yes, that may present options for pursuing her green card through a US consulate in Canada without the 3-year or 10-year ban.

 

[newacct]

You could wait until you are a U.S. citizen and apply for her as the spouse of a U.S. citizen.

Or you could file a petition for her as the spouse of a permanent resident, and when the priority date becomes current she goes home to do the interview and stuff at the U.S. consulate in her home country. Since she was J-1, she was most likely admitted on Duration of Status, which means she cannot have accrued unlawful presence until she was ruled against by an immigration judge. Assuming that did not happen, she has no ban. This may be faster.

 

[Jackolantern]

Since she was J-1, she was most likely admitted on Duration of Status, ...

However, apparently she was here on a short-term summer program, so her I-94 is likely to have a specific expiration date instead of D/S. It's the longer J-1 programs (1 year and up) that usually have D/S.

 

[cafeconleche]

An earlier marriage would only help to make the first GC she gets unconditional (10-year) instead of a 2-year conditional one.

 

[ac009]

In addition to staying in the US for the next 1.5 years to satisfy the physical presence requirement, you may also have to wait another couple years on top of that to satisfy the continuous residence requirement, depending on what your travel history was in 2010-2012.

What kind of travel history do you mean? When I got the green card in 07, we still stayed in Canada because I was finishing up college. I only moved here last year in March. Based on this, does it mean I need to wait more than the 30months to satisfy the continuous residence requirement? I did travel a couple times to the US for vacation but resided in Canada for most of the time.

Were you under 18 when you got the green card back in 2007? Did at least one of your parents obtain US citizenship before you turned 18? If yes to both, you may have derived US citizenship through your parent and don't know it.

I was 19 when I got the greencard in 2007. My family is all Cdn Citizens, we got the greencard through a family sponsorship. So unfortunately no citizenship derived I guess /

Does she have D/S written on the I-94 she got when arriving with her J1 visa? If yes, that may present options for pursuing her green card through a US consulate in Canada without the 3-year or 10-year ban.

I actually made a mistake, she has a H2B instead of a J1. Does that change anything? I'll have to doublecheck if she has this "D/S" you are speaking of.

Thanks for all your inputs!

 

[ac009]

You could wait until you are a U.S. citizen and apply for her as the spouse of a U.S. citizen.

Or you could file a petition for her as the spouse of a permanent resident, and when the priority date becomes current she goes home to do the interview and stuff at the U.S. consulate in her home country. Since she was J-1, she was most likely admitted on Duration of Status, which means she cannot have accrued unlawful presence until she was ruled against by an immigration judge. Assuming that did not happen, she has no ban. This may be faster.

I think for her to go back home is just simply too risky. She's actually on the H2B, not sure if that changes anything. Thanks for your advice

 

[newacct]

I think for her to go back home is just simply too risky. She's actually on the H2B, not sure if that changes anything. Thanks for your advice

Yeah, D/S is only for F-1 and J-1 people, so forget about that. Waiting until you naturalize is probably the best bet.

 

[Jackolantern]

What kind of travel history do you mean? When I got the green card in 07, we still stayed in Canada because I was finishing up college. I only moved here last year in March. Based on this, does it mean I need to wait more than the 30months to satisfy the continuous residence requirement? I did travel a couple times to the US for vacation but resided in Canada for most of the time.

The physical presence and continuous residence requirements are two different things.

For physical presence, you need at least 30 months (913 days to be exact) physically in the US within the past 5 years prior to the N-400 filing date. For continuous residence, the general rule is no absences of 6 consecutive months or longer outside the US in the past 5 years.

The physical presence rule is a straight mathematical calculation; either you have the required number of days or you don't. But the continuous residence rule allows for discretion; they can deny you for a string of multiple long trips which are individually under 6 months each, or you can be approved with a trip of over 6 months if you present sufficient evidence of residential ties to the US that you maintained during the trip.

That is why I asked about your travel pattern in 2010-2012. From how you described your situation, it appears that you have absences outside the US of 6 months or longer, and/or a long string of absences with very short stays in the US between trips.

For more information read the Guide To Naturalization. www.uscis.gov/files/article/M-476.pdf‎

 

[ac009]

The physical presence and continuous residence requirements are two different things.

For physical presence, you need at least 30 months (913 days to be exact) physically in the US within the past 5 years prior to the N-400 filing date. For continuous residence, the general rule is no absences of 6 consecutive months or longer outside the US in the past 5 years.

The physical presence rule is a straight mathematical calculation; either you have the required number of days or you don't. But the continuous residence rule allows for discretion; they can deny you for a string of multiple long trips which are individually under 6 months each, or you can be approved with a trip of over 6 months if you present sufficient evidence of residential ties to the US that you maintained during the trip.

That is why I asked about your travel pattern in 2010-2012. From how you described your situation, it appears that you have absences outside the US of 6 months or longer, and/or a long string of absences with very short stays in the US between trips.

For more information read the Guide To Naturalization. www.uscis.gov/files/article/M-476.pdf‎

Thank you for the detail! I had a chance to read up on the continuous residence provision but still left a little confused ><...I hope you can help clarify my situation then.

Short summary:
- Received GC in 2007
- Never actually lived in US since due to College in Canada besides the couple of vacations we had.
- Officially moved to US and resided here since March of 2012

Does this mean I will be eligible for Naturalization Sept 2014 (30 months physical presence)? Or will I actually need to wait even longer? Thanks for helping me out with this..

 

[Jackolantern]

Short summary:
- Received GC in 2007
- Never actually lived in US since due to College in Canada besides the couple of vacations we had.
- Officially moved to US and resided here since March of 2012

Does this mean I will be eligible for Naturalization Sept 2014 (30 months physical presence)? Or will I actually need to wait even longer?

You'll have to wait much longer, because meeting the physical presence requirement is not enough. There is also the continuous residence requirement, which generally requires you to NOT have any absences of 6 consecutive months within the past 5 years, in addition to having 30 months of physical presence.

Based on what you've described, it appears that you've had multiple absences of 6 months or more from 2010-2012, so even if you'd meet the physical presence requirement in Sept. 2014, you'd be denied for breaking continuous residence. You'll have to wait until those 6+ month trips in 2010-2012 are too old to affect your eligibility based on continuous residence.

 

[ac009]

You'll have to wait much longer, because meeting the physical presence requirement is not enough. There is also the continuous residence requirement, which generally requires you to NOT have any absences of 6 consecutive months within the past 5 years, in addition to having 30 months of physical presence.

Based on what you've described, it appears that you've had multiple absences of 6 months or more from 2010-2012, so even if you'd meet the physical presence requirement in Sept. 2014, you'd be denied for breaking continuous residence. You'll have to wait until those 6+ month trips in 2010-2012 are too old to affect your eligibility based on continuous residence.

Thanks Jacko, just out of curiosity, how is the continuous presence provision screened? Is it a honor system? On the occasions I've entered the US, I've used the GC, but upon returning to the home country I use the passport from the home country. To my knowledge there's no in/out tracking on the greencard...how do they know if our information provided is accurate or not? maybe you could help clarify? Thanks.

 

[Jackolantern]

Thanks Jacko, just out of curiosity, how is the continuous presence provision screened? Is it a honor system? On the occasions I've entered the US, I've used the GC, but upon returning to the home country I use the passport from the home country. To my knowledge there's no in/out tracking on the greencard...how do they know if our information provided is accurate or not? maybe you could help clarify? Thanks.

They don't have 100% complete exit and entry records for 100% of green card holders, but since 9/11 they've greatly stepped up their tracking and they do have accurate records of most people. Airlines are required to forward the identifying details of passengers to DHS; when you use your passport to exit the country, DHS gets your passport number which can be linked to your green card in the system (especially if you have ever used the same passport during or after your GC process).

Sometimes people who repeatedly spend 10 or 11 months a year outside the US get harassed at the immigration counter by an officer who notices their long absences in the system.

For entries and exits by land, their records aren't quite as complete as with air travel, but they have been getting better at it, and Mexico and Canada do some information sharing with DHS.

You don't know exactly what they know or don't know about your travels; they might know 100% or they might know less than half. But if they catch you in a lie your citizenship prospects will be seriously jeopardized.