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Thomas K. Brown, Esq.
Thomas K. Brown, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 333
Experience:  I have gotten green cards for numerous immigrants, both through USCIS and the Immigration Courts.
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I am Canadian, my husband is US born citizen, we have been

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I am Canadian, my husband is US born citizen, we have been married for 4 years, with 2 children and live in Hawaii for 2 years. On my last entry to US from Canada this summer I have got a stamp on my passport with I-94 form and date of my departure set for January 2009. My husband is trying to petition for me now, but I was warned by the customs authority that I have to leave the US before the date on the I-94 form regardless, and the form I-94 contains writing in Record of Changes section on the back of I-94 as: NO C.O.S ( I assume no change of status), and NO E.O.S??? nobody knows what that means. My question is: If I have to leave US, for how long I have to be outside of US, and can I return 1 or 2 weeks from my departure (I have a 1 y.o. baby and a 4 y.o. boy and my husband is the only one who provides the income for the family). Please clarify my situation. Thanks
Submitted: 6 years ago.
Category: Immigration Law
Expert:  Thomas K. Brown, Esq. replied 6 years ago.
You're right -- COS means Change of Status. EOS means Extension of Stay. Basically, you are not permitted to change your status to another non-immigrant visa status or extend your present non-immigrant status without leaving the US. It does not affect what options might be available to you if you are seeking an immigrant visa. I see three possibilities for you, two of which would require leaving the US.

The first is traditional "consular processing" of a family-based immigrant visa petition. Your husband would file an immediate relative petition (USCIS form I-130) and ask that it be processed by a US consulate in Canada. Upon approval of the petition and the other related visa forms (the affidavit of support and paying the visa "fee bill") you be given an immigrant visa and would be a permanent resident ("green card" holder) as soon as you're admitted back into the US. Total time outside the US varies but expect several months at least.

Another option is the K-3 spouse of US citizen visa. Although technically a non-immigrant visa, it permits the beneficiary to enter the US and await green card processing inside the US rather than outside. It would also take several months outside the US before the K-3 would go through, and then would have to apply for a green card here through a process called "adjustment of status" (meaning, change from your non-immigrant K-3 to an immigrant green card status).

A third option that is possible, though I would be careful here, is to not leave, and file the alien relative petition concurrently with an adjustment application (both forms I-130 and I-485) and ride it out here. Technically, you would be out of status as soon as your current non-immigrant status expires in January. This isn't as dire as it sounds. Immediate relatives of US citizens, which includes their spouses, are permitted to adjust status even if they are out of status or have worked without authorization so long as they actually entered the country legally. There are many requirements to adjusting status and I would encourage you to review all of them with an experienced immigration attorney before deciding to go this route. But the short answer is that even people out of status can get green cards by marriage to a US citizen. I've processed many of these applications successfully. There are risks, however. If your application is denied for whatever reason, which may take a year or so to find out, you would be considered out of status back to January of 2009. This can triggers some difficult consequences including the dreaded "3 and 10 year bars" on re-entry.

I hope this answer satisfies your question and you find the three options helpful. I do encourage you to consult with an immigration attorney to explore each in greater detail.
Customer: replied 6 years ago.

Hello Thomas, Thank you for thorough answer to my question. It is very helpful. However I do have the remaining portion of my question which is very important to me unanswered:

How long I have to remain outside of US after I depart before January. Is there any law on time requirements to reentry and will I experience difficulties at the point of entry (Airport customs) or rejection if I will come back within 1-2 weeks from departure?

If you kind kindly give me some ideas, I will appreciate.

 

Expert:  Thomas K. Brown, Esq. replied 6 years ago.
I am not aware of any particular time period one must stay in Canada before returning. Due to its proximity, particularly at land crossings, short hops across the border are very common. The word of caution I would give you is that if you return on a presumed B-2 tourist visa (which is typically how Canadians enter the US) this is still a non-immigrant visa, meaning there is the expectation that you will return to Canada. There are two issues that could come up as a result. First, the US Customs and Border Patrol officer who will inspect and admit you at the airport might not be convinced that you really intend to return to Canada. A B-2 really is a non-immigrant visa. Having a spouse and family in the US is good evidence that you intend to remain in the US and a B-2 would not be the appropriate visa category. The treatment of Canadians at points of entry vary and I can't say what the experience would be like in Hawaii. If you've never had trouble re-entering there then I imagine you likely wouldn't have trouble in the future.

The other issue is similar and relates to your intent at the time of entry. If you do successfully re-enter on a tourist visa and file for adjustment of status within 60 days of entry, USCIS may deny your application for visa fraud -- i.e., that you secretly intended to adjust status at the time you entered and therefore fraudulantly obtained your B-2 visa at the POE. The law is the law, and a B-2 is only for those without immigrant intent. A K-3, on the otherhand, though technically still a non-immigrant visa, is designed for exactly what you're doing -- entering the US for the purpose of adjusting based on marriage to a US citizen.

There is a bit of tactics here. Technically, the correct way to do this is either through consular processing or a K-3 visa. Both of these will take months to complete. It is possible to adjust without leaving the US (and without risking being denied re-entry), however, there is the risk that the application would be denied (as I described in my other response).
Customer: replied 6 years ago.

Hello Thomas, it seems like I am in trouble either way, if I stay or go. I have never had any trouble getting to US previously, and noone ever asked for a visa or there was a need to obtain it, just Canadian passport, but this this summer, where I accidentally blubbered that I live in Hawaii instead of Canada, they got really pissed off with me. It so happened that I somewhat violated the prior entry (almost 2 years ago), when our family came to Hawaii and didn't petition for my immigrant's status (pregnancy and child birth contributed to my presence in US). So my chances of getting back somewhat faided with this last accident.

I do have a house in Canada, which is on my name only, just renewed my mortgage this summer, and my older daughter also ilives in Canada, so I do have ties, but my 4 y.o. (canadian born) and 1 y.o. US boy are with us in US.

Thus the question arise from this situation: Does my husband need to petition for me with one or both above mentioned by you methods before I leave, and how will this reflect the process of the application process with my absence? As I can recollect, I have to ask for traveling permission while in process, which also might take time to obtain. The botXXXXX XXXXXne is it will be extremely difficult for me or my husband to be apart while waiting for the decision and impossible for both of us to handle kids separately. What should I do? (By the way, you are doing great job and I would like to ask you if I will be able to add extra payment for your services and what that will be? Also if I can possibly contact you by phone directly) Thank you, XXXXXXXX@XXXXXX.XXX

Expert:  Thomas K. Brown, Esq. replied 6 years ago.
Hi Natalie -- you can certainly contact me by phone, toll-free at 1-888-783-9180. Your situation is tricky but not that unusual. Basically, you're caught between two places with ties to both. As you mentioned, you have strong ties to Canada -- owning property and having a child there -- which would ordinarily be enough to get in as a tourist. Nevertheless, as I wrote above, the law is the law when entering as a tourist, and if there is immigrant intent, then the B-2 is not the correct visa category. The 60-day rule (about presuming immigrant intent at the time of entry if you make a move toward remaining in the US within 60 days of entry) can cause problems when adjusting. Visa fraud is a big deal and can really cut off immigration benefits.

As it relates to this series of questions, if my answers have been acceptable, please accept them using the system. If you would like to discuss this in more detail, please feel free to call and we can work out some arrangement.
Thomas K. Brown, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 333
Experience: I have gotten green cards for numerous immigrants, both through USCIS and the Immigration Courts.
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Thomas K. Brown, Esq.
Thomas K. Brown, Esq.
315 Satisfied Customers
I have gotten green cards for numerous immigrants, both through USCIS and the Immigration Courts.