Do I have a clean case? US citizen, married non-US citizen

S

SeanPan

Registered Users (C)
Dear all,

I am a US citizen by birth and I married my beloved, a Canadian girl who was visiting me on a visa waiver. She has been in the US for well over 90 days, but she was given a special visa waiver by the immigration officer at the airport for some reason(we're not sure why, the official gave her 6 months of time in the US and its obviously stamped on her passport).

As such she has not overstayed yet, and her actual stay ends on July 19th, 2011(it is now July 8th, 2011). Unfortunately, I can't quite afford to file her forms until the 15th of July, which is a Friday and admittedly cutting it a bit close.

*she is here legally(visa waiver-extended)
*we are married legally, with no plans to get married when she first came to visit
*we will file her i-130 and i-485 application within 90 days of getting married.

Unfortunately, my vehicle broke down right this month and its making getting some of the requirements for the forms slightly more difficult/expensive, such as having her checked over by a civil surgeon. Would it be okay to file the i-130 and i-485 now, and then file the other forms as I get an additional paycheck(but as soon as possible)?

Additional information: We consulted a local immigration lawyer, who said, "Get married as soon as possible and file your papers. Shouldn't be a problem otherwise." I honestly didn't have a worry until I began to ask online and was told that a major court case in 2010 could get her removed/deported even though she is here legally on a visa waiver, and additionally, the idea that her deportation is based on exactly which day I can file her papers in(if I am late by one week, she'll have overstayed and will be deported?) has been stressful.

We do not have many photos together - she has been against photos, but we had one taken of our court ceremony. We also have lease documents together and it is common knowldge among our friends, as well as our apartment staff that we're together. Finally, the judge(a JP) of our ceremony gave her card and told us to call her if we had any problems whatsoever with our immigration issues.

We are in Dallas.
 
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SeanPan said:
We do not have many photos together - she has been against photos, but we had one taken of our court ceremony. We also have lease documents together and it is common knowldge among our friends, as well as our apartment staff that we're together. Finally, the judge(a JP) of our ceremony gave her card and told us to call her if we had any problems whatsoever with our immigration issues.

We are in Dallas.
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I would not say you have a totally clean case. Although the officer gave her 6 months, they are known to make mistakes and you might be on the wrong side of that mistake. The Visa Waiver is specifically for 90 days. You need to have paperwork to show why she was given this special waiver, whatever it was.

Common knowledge among your friends is not going to help you much with USCIS. Get those friends to prepare a "notarized affidavit of knowledge of bonafide marriage". USCIS deals with paperwork.
 
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Well, how can we be responsible for the mistakes made by the official? We do not have paperwork for why she was given this special waiver, nor any knowledge of why it was given in the first place. The offiical just appeared to decide to do so, and at the time, it did not seem to be a major concern.

Should we arrange for a lawyer to prepare this case, even though it is difficult for my already rather drained finances?

I can get an Affidavit of Bonafide Marriage/Evidence arranged, certainly.
 
SeanPan said:
Well, how can we be responsible for the mistakes made by the official? We do not have paperwork for why she was given this special waiver, nor any knowledge of why it was given in the first place. The offiical just appeared to decide to do so, and at the time, it did not seem to be a major concern.

Should we arrange for a lawyer to prepare this case, even though it is difficult for my already rather drained finances?

I can get an Affidavit of Bonafide Marriage/Evidence arranged, certainly.
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Please get in contact with Immigration to clarify ASAP. Don't forget USCIS leaves the burden of proof on the applicant. It sucks but it is what it is. See below.

A visa must be requested if the traveler:

Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to student, etc.) once in the United States;

http://travel.state.gov/visa/temp/without/without_1990.html
 
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She had the passport stamped by an official when leaving Canada, I presume. He would be working for immigration or the department of homeland security? Checking to see who is responsible and who we should contact
 
"Yeah, there's a lot of confusion about this which is worth explaining.

Canadians (and belongers of Bermuda) enter as B when they come in as visitors, which is the same category people who enter with B visas enter in, but there is no visa.

This is a really, really old legal provision, I think it goes back to 1924 or thereabouts, Cubans were originally covered by it before the Revolution so we're talking really old."

Fortunately, she is not part of the VWP, or so it would seem - which explains why the official gave her six months. She has entered automatically without need for a visa.
 
You have a relatively clean case I would not worry much if I were you. Just file the papers asap. Keep in mind that you will be required to make certain amount of money a year in order to qualify for affidavit of support (I-864) or find a joint sponsor. Do not hire a lawyer. You don't need one. Just make sure you follow instructions for each form.
 
I make several times over the amount needed. Income isn't an issue in the least. The fact that she has no visa and apparently doesn't need a visa to visit the US during her six month(!) stay does bother me, as it seems like we will have to do literally, without paperwork.
 
SeanPan said:
I make several times over the amount needed. Income isn't an issue in the least. The fact that she has no visa and apparently doesn't need a visa to visit the US during her six month(!) stay does bother me, as it seems like we will have to do literally, without paperwork.
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Just get a joint bank account, if she lives at your house, get a couple utility bills in her name, add her to your cell phone plan. You don't need much proof of bona fide relationship when you send I-130 because she is not in removal proceedings. Collect as much as you can when you go in for your interview though... She will be fine trust me
 
It is standard procedure for Canadians to get 6 months when entering as a visitor. Even though they don't use a visa to enter as a visitor, they're not part of the visa waiver program so those restrictions on visa waiver travelers don't apply to her. File the papers ASAP and she'll be fine. Make sure to include a copy of the passport page they stamped when she entered.

Note that the I-693 medical involves two visits to the doctor plus another week or so to get the results mailed to you. So she probably won't be able to get everything done before her authorized stay ends on July 19, which means she'll have a slight overstay. During that overstay she is deportable if caught.

In addition, be aware that once the I-485 is filed, leaving the US before her Advance Parole (form I-131) is approved will result in cancellation of her I-485. So she shouldn't make any plans to visit Canada in the 2-3 months while waiting for the AP.
 
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More issues...

We found that we don't have her birth certificate handy, although we do have her health certificate card(the Canadian SSN version) as well as her passport. I also do not believe that I will have time to file her I-693 before she overstays, so will it be better for us to file the absolute minimum(I-130 and I-485) before she overstays, or actually make sure we get all of the forms and information?

Could we also insert a letter in the packet that we are getting her birth certificate and wil send it in asap?
 
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You can file the minimum. I believe USCIS can choose to send an RFE for the Birth Certificate or reject the application because it is incomplete. The I-485 states clearly to provide a copy of your foreign birth certificate.
 
SeanPan said:
We found that we don't have her birth certificate handy, although we do have her health certificate card(the Canadian SSN version) as well as her passport. I also do not believe that I will have time to file her I-693 before she overstays, so will it be better for us to file the absolute minimum(I-130 and I-485) before she overstays, or actually make sure we get all of the forms and information?

Could we also insert a letter in the packet that we are getting her birth certificate and wil send it in asap?
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How long will it take to get all the documents? If it's less than a month, get the documents first and then send everything together. Surely her family can obtain a new birth certificate in less than a month, or maybe even find an old one in their house. Sending the I-485 with vital documents missing would risk delays, complications, or even rejection.
 
Well, we found a copy of her birth certificate back at her home in Canada. Her mother will scan and send a copy to us tomorrow, so that by itself should be pretty good.

I'm still very doubtful that we can get the medical examinations done within a week, though!
 
The scanned copy of the birth certificate is good enough for sending with the I-485, but the official one may be requested at the interview. The interview is a few months away so there is enough time to obtain a reissued one from the birth registration authorities if necessary.

I'm still very doubtful that we can get the medical examinations done within a week, though!
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You can't. But you can choose a Designated Civil Surgeon today and set up an appointment (actually 2 appointments a few days apart).
 
We were lucky enough to be able to get the medical examinations done as well within the week.

Last question...

I delayed filing my income tax and had an extension done - I finally had them done at HR block, and received my "copy of income tax" return - but not the actual IRS return. Can I attach the "Copy of income tax return" with my affidavit of support? Or should I instead attach it, with a letter that I'm still waiting on my IRS return? Or should I wait(and cause her to overstay!) until I get my acutal IRS return?
 
Tough one. They typically ask that you provide IRS transcripts if the taxes were filed late. I would say go ahead with your "Copy of Income Tax Return" and then immediately the transcripts are ready, you request one ready in case an RFE comes through. Personally I would prefer trying to avoid any overstay as much as possible although it is forgiven.

PER I-864 Instructions

If you were required to file a Federal income tax return during any of the previous three tax years but did not do so, you must file any and all late returns with IRS and attach an IRS-generated tax return transcript documenting your late filing before submitting the I-864 Affidavit of Support.
 
They were filed late, but with permitted extension, I should note.

Should I write an letter explaining the situation?

Finally, I have another unusual difficulty - my parents had named my SHon, but then began using Sean for me as an Americanized name everywhere else. The unfortunately result of this is that my pay stubs are named for Sean while my gov't info is named Shon.

I have filed 'alternate' name as Sean and my W2 form has my social number, with Sean and I was told by a former immigration worker that's something they can look up and confirm that Sean is also Shon. Should I add a letter, confirming that I, Shon Pan, am also Sean Pan?
 
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