immigrantintent
Registered Users (C)
Consider the following: a Canadian family who spent 13 years in the US, as nonimmigrants, only to become permanent residents on that 13th year.
The catch: one of the three children, in the course of her tenure in the US, turned 21 before the priority date became current for the primary beneficiary of an employment-based petition (the father.)
The consequence? When she turned 21, she lost her derivative non-immigrant status, and switched to an F-1 to finish her studies at a public US university where she'd been studying. When she graduated she took OPT. The OPT is soon expiring.
Because she was 21+, she was not eligible to adjust status or follow consular processing when her father finally immigrated, because she was no longer a child (or immediate relative) but instead an unmarried son or daughter in the eyes of the USCIS.
The provisions of the Child Status Protection Act did nothing to help for her.
Now the daughter plans to attend a Masters program in Canada, and will exit the country when her F1/OPT expires.
The parents would like for the daughter to be able to one day live in the USA, hassle-free. The daughter feels the same way, having spent most of her life in the USA.
Comprehensive Immigration Reform looks promising, in terms of relief for family-based immigrants. There is the forthcoming possibility of the retention of priority dates for aged-out children (see: De Osorio v. Mayorkas and the CIR bill) and the possibility of extending the V-visa to the petitioned unmarried sons and daughters of permanent residents.
The parents should like to file an I-130 for the daughter. Though there is severe backlogging for the FB-2B-ROW category, a petition would at least solidify her place in line to one day immigrate. If priority date retention becomes a reality, her PD could be adjusted to match her fathers' original date.
The problem: the daughter will still like to visit her parents, vacation, come home for Christmas, etc. The filing and approval of an I-130 would present a reasonable degree of immigrant intent for a case like herself. As it is, a visa would not available for decades. However, the facts work to her disadvantage.
She has lived in the US for more than a decade. Her parents live there. She attended university there. She has few long-standing ties to Canada because she literally has not lived there for 13 years (since she was a young child). And she has an I-130 in her name. There is to be expected, when entering the US for travelling for a few days or weeks at a time, a presumption of immigrant intent.
While the intent to immigrate is not consistent with the desire to immigrate, a CBP agent may not be so friendly. Or such is my concern.
Would such a filing of an I-130 harm the daughter's ability to travel home?
Would she simply need to carry a big folder of evidence as to how she intends to depart from her temporary stay (university proof of enrolment, return tickets, travel itinerary, apartment lease, phone contracts, and proof of a priority date that is far from being close to the most recent bulletin dates for her petition category) and that she will indeed pursue consular processing at the appropriate time (i.e. not adjust status)?
Or will the fact that Canada is a visa-exempt country make it so that she should never receive any trouble? It would not be possible for a person to adjust status when travelling Canadians do not receive even a stamp in their passport, much less a "status" on which they are travelling?
Or will she be scrutinized and issued an B2 and monitored and risk both her petition and her temporary entry?
There is no way around it: she'd like to return to the US one day, is presently not at the capacity to do so (literally no visa available.) Does the declaration of hope to immigrate in the future (I-130) jeopardize her ability to cross a land border to visit her family and the place she would have lived in, had visa retrogression not caused her to age out and force her to leave the place she called "home"?
Many regards, all. Any insight is appreciated.
The catch: one of the three children, in the course of her tenure in the US, turned 21 before the priority date became current for the primary beneficiary of an employment-based petition (the father.)
The consequence? When she turned 21, she lost her derivative non-immigrant status, and switched to an F-1 to finish her studies at a public US university where she'd been studying. When she graduated she took OPT. The OPT is soon expiring.
Because she was 21+, she was not eligible to adjust status or follow consular processing when her father finally immigrated, because she was no longer a child (or immediate relative) but instead an unmarried son or daughter in the eyes of the USCIS.
The provisions of the Child Status Protection Act did nothing to help for her.
Now the daughter plans to attend a Masters program in Canada, and will exit the country when her F1/OPT expires.
The parents would like for the daughter to be able to one day live in the USA, hassle-free. The daughter feels the same way, having spent most of her life in the USA.
Comprehensive Immigration Reform looks promising, in terms of relief for family-based immigrants. There is the forthcoming possibility of the retention of priority dates for aged-out children (see: De Osorio v. Mayorkas and the CIR bill) and the possibility of extending the V-visa to the petitioned unmarried sons and daughters of permanent residents.
The parents should like to file an I-130 for the daughter. Though there is severe backlogging for the FB-2B-ROW category, a petition would at least solidify her place in line to one day immigrate. If priority date retention becomes a reality, her PD could be adjusted to match her fathers' original date.
The problem: the daughter will still like to visit her parents, vacation, come home for Christmas, etc. The filing and approval of an I-130 would present a reasonable degree of immigrant intent for a case like herself. As it is, a visa would not available for decades. However, the facts work to her disadvantage.
She has lived in the US for more than a decade. Her parents live there. She attended university there. She has few long-standing ties to Canada because she literally has not lived there for 13 years (since she was a young child). And she has an I-130 in her name. There is to be expected, when entering the US for travelling for a few days or weeks at a time, a presumption of immigrant intent.
While the intent to immigrate is not consistent with the desire to immigrate, a CBP agent may not be so friendly. Or such is my concern.
Would such a filing of an I-130 harm the daughter's ability to travel home?
Would she simply need to carry a big folder of evidence as to how she intends to depart from her temporary stay (university proof of enrolment, return tickets, travel itinerary, apartment lease, phone contracts, and proof of a priority date that is far from being close to the most recent bulletin dates for her petition category) and that she will indeed pursue consular processing at the appropriate time (i.e. not adjust status)?
Or will the fact that Canada is a visa-exempt country make it so that she should never receive any trouble? It would not be possible for a person to adjust status when travelling Canadians do not receive even a stamp in their passport, much less a "status" on which they are travelling?
Or will she be scrutinized and issued an B2 and monitored and risk both her petition and her temporary entry?
There is no way around it: she'd like to return to the US one day, is presently not at the capacity to do so (literally no visa available.) Does the declaration of hope to immigrate in the future (I-130) jeopardize her ability to cross a land border to visit her family and the place she would have lived in, had visa retrogression not caused her to age out and force her to leave the place she called "home"?
Many regards, all. Any insight is appreciated.
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