Married my visiting Canadian girl friend while she was visiting what do I do next?

T

toxiccucumber

New Member
She came for a month visit back in Oct 09 and we instantly fell in love. She came across customs and they just entered a bunch of info about her on a terminal but did not stamp her passport or anything.
She literally moved in with me a day after she arrived. After the month passed I got a little worried that she would be in some kind of trouble so I called the US state dept and they said don't worry she can stay visiting as long as 6 months. Ok, well by the time 6 months passed we were inseparable. She fell in love with me and my kids and us with her. It has been about 8 months now and we got married last weekend. In addition to that we now have a child on the way. This is something that is going to last and I want to make it work but hardly know where to begin. Living in AZ makes this even more stressful.
Oh and I went to add her on my health insurance as she is my wife and they are asking for SSN which is mandatory and of course she does not have. Now I have that worry as well.
She does not have a particular visa and some tell me that if she goes back to Canada she will not be allowed back in for 10 years.
All I can say is soul mates have no borders. My bad or hers for not getting on top of this sooner. Is there hope for us? I look at all the forms and it seems incriminating to answer all questions honestly. I really do not want my wife sent back. Can't deal with another heartbreak.
Please advise. I would be very appreciative.
Thanks
T~
 
toxiccucumber said:
She does not have a particular visa and some tell me that if she goes back to Canada she will not be allowed back in for 10 years.
Click to expand...
Not completely true. If she illegally overstays for a year or more, and leaves the US without a green card, she would be banned for 10 years starting when she leaves the US. If she illegally overstays for 180 days to 364 days, the ban would be 3 years. If the illegal overstay is less than 180 days, there is no outright ban, although it will be difficult to visit the US for a long time because they'll expect her to overstay again. However, the under-180 day overstay would not create a problem for her to complete the green card process through the consulate in Canada.

From what you've said, she has been out of status for only 2 months so she wouldn't be banned if she left now. However, she is deportable if caught, and if deported, they usually will impose a multi-year ban regardless of how short or long the overstay was.

Is there hope for us? I look at all the forms and it seems incriminating to answer all questions honestly. I really do not want my wife sent back.
Click to expand...
Well you have no choice but to hurry up and fill out the forms ASAP and send them in before she gets caught and deported. If you are a US citizen, her overstay will normally be forgiven when you file the papers. If you are not a US citizen, you can't do much for her until you become one.

If you act fast enough, she may be able to get an SSN before the baby is born so you can add her to your health policy (unless they won't add her because she's already pregnant).
 
Last edited by a moderator:
Jackolantern said:
Not completely true. If she overstays for a year or more, and leaves the US without a green card, she would be banned for 10 years starting when she leaves the US. If she overstays for 180 days to 364 days, the ban would be 3 years. If they overstay is less than 180 days, there is no outright ban, although it will be difficult to visit the US for a long time because they'll expect her to overstay again. However, the under-180 day overstay would not create a problem for her to complete the green card process through the consulate in Canada.
Click to expand...

Again, you can't overstay without an I-94. She cannot accumulate illegal presence until an immigration judge formally determines she is out of status.
 
TheRealCanadian said:
Again, you can't overstay without an I-94.
Click to expand...
Again, this is false.

She cannot accumulate illegal presence until an immigration judge formally determines she is out of status.
Click to expand...

Staying beyond the 6 months limit without authorization to do so is an overstay, even if there is no I-94 and the illegal presence doesn't accumulate until there is a formal determination of going out of status. And USCIS can make the determination, a judge doesn't have to make it.
 
Last edited by a moderator:
Jackolantern said:
Again, this is false.
Click to expand...

You keep denying it, but I assure you my understanding of US immigration law as it pertains to Canadians is better than yours.

Staying beyond the 6 months limit without authorization to do so is an overstay, even if there is no I-94 and the illegal presence doesn't accumulate until there is a formal determination of going out of status.
Click to expand...

Illegal presence is all that matters. A Canadian visitor without I-94 is like an F/J holder with a D/S I-94. Until USCIS formally determines they are out of status, no illegal presence accumulates, and the re-entry bars cannot be triggered.

And USCIS can make the determination, a judge doesn't have to make it.
Click to expand...

It needs to be made based on factual evidence, and a formal written date of when illegal presence starts. A Canadian without an I-94 has no such thing.
 
TheRealCanadian said:
You keep denying it, but I assure you my understanding of US immigration law as it pertains to Canadians is better than yours.
Click to expand...
You should say Canadians don't automatically accumulate illegal presence without the I-94, don't say there is no overstay. Maybe it's not an illegal overstay, but it's still an overstay if they stay beyond the 6 month limit without an extension. Saying there is no overstay implies there is no penalty or consequence for staying as long as they want -- but there are potential consequences for doing that, such as being deportable if caught, being denied a tourist or student visa in the future, or being denied AOS if filed based on a quota-restricted family-based petition.

I corrected my above post to mention "illegal" overstays; I hope you will do the same.
 
Jackolantern said:
You should say Canadians don't automatically accumulate illegal presence without the I-94, don't say there is no overstay. Maybe it's not an illegal overstay, but it's still an overstay if they stay beyond the 6 month limit without an extension.
Click to expand...

Overstay is generally understood to mean "illegal presence accrued by staying after the expiration of an I-94" as opposed to illegal presence accrued in other ways (like EWI, a formal determination of being out of status). To talk about "illegal overstays" is to use a term that I've never heard used by anyone in 13 years of dealing with US immigration. There are no legal overtsays, and there are no overstays without an I-94. Period.

Saying there is no overstay implies there is no penalty or consequence for staying as long as they want -- but there are potential consequences for doing that, such as being deportable if caught, being denied a tourist or student visa in the future, or being denied AOS if filed based on a quota-restricted family-based petition.
Click to expand...

Sure, there are consequences for a Canadian staying longer than 6 months - but only the first one is really applicable. The majority of Canadians fit into America easily without any reasonable suspicion of being illegal aliens, and outside of being caught by a random Border Patrol checkpoint the odds are very low. (And even then I suppose one could claim one was a legitimate Canadian visitor who entered in the last six months). There's no worry about being denied for a visa since Canadians are visa-exempt to begin with.

Being denied AOS is legitimate, but the primary reason why folks do AOS is being they're subject to the re-entry bars and can't do CP. Since a Canadian visitor who stayed longer than six months doesn't have the problem, they merely have the onerous burden of spending a long weekend in Montreal enjoying the sights for their IV interview. Oh, the suffering! :D
 
TheRealCanadian said:
Overstay is generally understood to mean "illegal presence accrued by staying after the expiration of an I-94" ....
Click to expand...
"Generally understood"? That's how it's understood by you, but that's not how I have understood the meaning of the word, and that's not how many people here understand it. For example you'll see many posts like "I came here in 2002 on a student visa and I quit school in 2004 and have overstayed since then".

But at least you've clarified what you meant by "overstay", so people reading this thread won't think the lack of being issued an I-94 gives them carte blanche to stay in the US as long as they want.

There's no worry about being denied for a visa since Canadians are visa-exempt to begin with.
Click to expand...
Canadians can be refused entry as a nonimmigrant for having been out of status in the past.
 
That's very true. I guess the question was: does the USCIS know she overstayed or not? The lack of I-94 gives people the impression that "nobody knows", but reading this part:
toxiccucumber said:
She came across customs and they just entered a bunch of info about her on a terminal but did not stamp her passport or anything.
Click to expand...

I think they did keep a record and certainly have evidence that she overstayed
 
f1study said:
I think they did keep a record and certainly have evidence that she overstayed
Click to expand...

They certainly have evidence that she entered the US, but that's all.

Either way, there's no illegal presence, and if you're a US citizen, so what? There's no negative consequences to her staying this long. As long as you can provide proof of legal admission to the US (and for the case of Canadians an affidavit will do) you can file the I-485 and she'll get her GC.
 
Jackolantern is so prescient, thank you :)

@TheRealCanadian: We were talking about if she leaves the US, she will be subject to a 3-10 year ban if (only if) the length of overstay exceeds 180 days. Jackolantern was talking about a possibility, and it's legally correct. Re-read his post, you'll see there's nothing to argue about.
 
f1study said:
Jackolantern was talking about a possibility, and it's legally correct. Re-read his post, you'll see there's nothing to argue about.
Click to expand...

He's not legally correct. Please show me a single statue, regulation or memorandum that supports such a claim. The 3 and 10 year bars can ONLY be applied in the case of illegal presence, and you cannot accumulate illegal presence in the absence of an I-94 or a formal finding from USCIS that you were out of status.
 
Read the following consular bulletin:

Visas
E.O. 12958: N/A
Tags: CVIS

Subject: Advisory Opinion: INA 212(a)(9)(B) and Canadians

Ref: (a) Montreal 1497, (b) Victars E57819, (c) 97 State 23545, (d) State 60539

1. Montreal's Reftel asks if the unlawful presence inadmissibilities, imposed by INA (a)(9)(B)1 and 2, apply to Canadians, and Commonwealth Citizens Resident in Canada, who enter the United States following inspection by and INS officer, but have received neither a visa nor an I-94.
2. The INS General Counsel's office has informed VO that, a Canadian, or Commonwealth Citizen Resident in Canada, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J.
3. As in duration of status cases, a Canadian, or Commonwealth Citizen Resident in Canada, who is found to have violated status and be removable by an Immigration Judge, or found to have violated status, by an INS officer, in the course of adjudicating a benefit, such as an extension of stay or a change of adjustment of status, is unlawfully present. The unlawful presence commences on the date when the immigration judge, or INS officer, makes the ruling, not the date the status violation began.
4. A Canadian, or Commonwealth Citizen Resident in Canada, like other aliens, who enters without inspection, accrues unlawful presence from the time of entry. However, as unlawful presence may not be counted in the aggregate, there must be an unbroken period of unlawful presence lasting at least six months after April 1, 1997, and following the applicant's eighteenth birthday, before a 9B bar could apply.
Click to expand...

It predates the elimination of visa exemption for Canadian PRs, but has never been superceded.
 
For now the illegal presence vs. out of status issue is moot, as even if there was an I-94 with 6 months on it, there would still be another approx. 4 months before the 3-year bar would come into play.

So if the OP cannot get his wife added to his insurance and have the pregnancy and birth covered, it may be wise to have her go back to Canada and wait for consular processing so she can have the prenatal and birth care over there without them going into bankruptcy over the costs.
 
Last edited by a moderator:
Jackolantern said:
So if the OP cannot get his wife added to his insurance and have the pregnancy and birth covered, it may be wise to have her go back to Canada and wait for consular processing so she can have the prenatal and birth care over there without them going into bankruptcy over the costs.
Click to expand...

Here we agree! :D
 
I guess what I really need is a starting point. Me being the US Citizen and being married to her the Canadian who is in fact 10 weeks pregnant as well. What do I need to do and what does she need to do? She does live with me in the US and a little worried that stating that fact on the forms may only elicit a deportation.
BTW thank you for your posts above.
 
With her being married to a US citizen, and having entered the US legally, once the I-130 and I-485 (and associated documents) are filed she won't be deported while those are in process*. That's as long as you filed the papers before they initiate the removal proceedings. So if you're worried about deportation, file the papers before ICE takes action.


*of course, this is assuming she doesn't do anything else that makes her deportable, like commit a crime
 
This is an off-topic comment, but I noticed that having a child together tends to make your case much stronger. So you guys stand great chance (if you file everything soon), don't worry.
 
You must log in or register to reply here.
Top