O-1 visa just expired, now need to get green card via my US wife

Bodri

New Member
I'm a Canadian citizen and my O-1 visa just expired the other day, but I've been married to a US citizen for over a 1.5 years (and also have had a baby here in the US two months ago. I now want to get my green card (through my marriage to my American wife), but I also want to travel back to Canada with my wife and baby in the fall and again during the Christmas holidays. Can I wait to apply for my green card until after January and just be a "visitor" until then? Is there any risk involved?

Thanks in advance for your advice.
 
There is a risk involved in doing that, yes. The risk is by entering the country on a visitor's visa when you intend to file for a green card, you are breaking the law. This has been discussed at length elsewhere on this site, including several flame wars, but have no doubt, if you try to re-enter on a tourist visa you face the possibility of being banned.

The reason is due to having immigration intent. On certain visas you are allowed to enter the country, even if you intend to immigrate here. An O-1 is one of those visas, another is an H-1B. However if a CBP officer figures out you have immigration intent when entering on a tourist visa, they will deny you, plain and simple.

Even if you can bluff your way past the CBP officer (which can be done, but it is dishonest and illegal), then when you file AOS you will be quizzed by the USCIS officer as to why you entered on a tourist visa. If you cannot prove to that officer that when you entered the country you did not intend to file for a green card (will be difficult as you are already married), then they will deny you AOS application.

Your best bet is to file for Green Card now, and file for AP and hope it gets processed before Xmas. This way, everything is done legally and relatively risk free.
 
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