country_canuck

Hi,

I used to follow many of you on google groups and it is nice to find you yet again. A big thank you in advance to those of you (here) that used to post wonderful and informative replies over there.

My story is kind of complex. I entered the USA about 4 years ago on a TN Visa from Canada. I subsequently decided that I liked working and living in the south and acquired a renewal and then another new TN.

Several months after acquiring the last TN I met a girl and nearly a year later we married in Nov. 2006. I started accumulating unlawful presence as I had moved and quit my TN sponsored position. It was right around 6 months after I left that position and started accumulating unlawful presence that we married and applied for AOS. I have not left the country since entering it with my last TN.

About a month after marrying and applying for AOS I was severely injured and required major surgery. This is when the problems started at home, when my new wife decided that the "sickness" part of our vows were too scary for her.

She continually nagged me to leave and that she did not wish to be married, even though I could not walk and could barely take care of myself post surgery.

I received my EAD in March 2007.

In June we were supposed to go to our AOS interview but I wrote asking for a reschedule date. The interview conflicted with the first day of my newly acquired job. We were still living in the same home and I was still trying to make the marriage work. She resisted counseling. I had just found a summer contract job at a youth summer camp which was out of town an hour and a half that I felt I could do. The thinking was that the time apart might help us mend our relationship. In fact, I was not medically cleared to work yet but I did nonetheless using my EAD. This caused complications to my injury and after 6 weeks I had to leave my new position.

She did not want me moving back in and I found a place to live half an hour away with a friend. We would see each other weekly, once or twice and more attempts were made to encourage her to attend counseling.

The original AOS interview was finally rescheduled for October (I was hoping it would take longer... sigh) and right during a time when I was in Hawaii on a job interview. So I wrote them to reschedule that as well, and they did for November 2007.

We are now divorced and I am getting ready to send in a letter to cancel my AOS application.

In the late summer of 2006 I met a wonderful girl and we started dating. In November we started to get serious and we would like to be together, forever, very much. In December I acquired a new job that I am finally physically able to do. My new girlfriend has moved here to live with me and we are very happy.

So things finally look positive in my life!

Except... we are from different countries and my old EAD (which is probably grey right now anyway) expires next month, my drivers license etc.

What options are available to us?

Should we just move to Canada and find new work?

Is entering into a new AOS (provided I jump into the marriage carriage again... eek!) at this point feasible?

Looking forward to feedback.

Noorah101

So your current girlfriend is not a USC?

If your girlfriend is not a USC, I don't believe she can sponsor you to adjust status in the USA.

Keep in mind that if you leave the USA, you probably will incur a ban from returning, depending on how long you've been out of status.

Best Wishes,
Rene

Noorah101

Did you attend the November 2007 AOS interview? What was the outcome?

Rene

country_canuck

Hi Rene!

Nice to see you here and thank you for all your past replies as well as this one.

Yes, she is a USC.

Leaving is a problem, I considered that for a TN for this new job as I do believe that you have to leave and re-enter. Also re-entering for that TN would be false pretenses now I think.

I believe that I have accumulated more than 6 months... sigh..

country_canuck

No, I wrote to reschedule that one as well and have not heard further. Since then filed for divorce and received it last week.

Bill_S

Sorry to hear of all you've been through.

With respect to your immigration options, your case is too complex for a web forum. See a lawyer.

INAL

Rete

Your original AOS is probably defunct since you never had the interview and you are now divorced you have absolutely no eligibility to adjust under your first marriage. Also that would mean that your EAD is revoked as well.

You can adjust status based on your marriage to your new GF if you marry. The old marriage will mean you might incur deeper scrunity because of the failure of the AOS and the marriage but it is not insurmountable.

If you can afford it, retain an attorney to assist you or at the very least obtain a one time consultation with one to learn what to expect. Do not return to Canada without a green card in your hand.

While Canadians enjoy a certain leeway in regards to overstay, i.e. their overstay must be pronounced by an immigration judge, you were here on a TN-1 which means that your overstay is easily determined by the adjudicator of your AOS petition. So if you leave and return and then go for the interview you might be caught out.

While I am not telling you to continue working, I will say that working without authorization is usually forgiven by the adjudicator at your interview.

country_canuck

Hi Rete,

Thanks for your post.

Yes, I believe that you are right, the original AOS is toast and along with it my EAD which was granted based on the AOS.

It certainly seems to me that it would raise a red flag if I were to start a new application, back to back. But you are right, I never planned for all this to happen but life sometimes throws stuff like this at you. I am sure that I am not the only one to ever have a similar experience so I am sure as you say, it is not insurmountable.


Yeah, money is tough. I just went through a year of crud and drained my savings in the process with medical bills and no income. Perhaps a consultation will fit in the budget.

I had applied for AOS before my 3rd TN expired, on paper anyway. I did quit that job several months after receiving my 1 year TN so technically I do believe that I was in overstay between the time that I quit the job and married and applied for AOS. Of course all this is in my file, I was honest about everything when I applied.

So, leaving now and gaining a TN on re-entry and then when I am back stateside getting married and applying for an AOS is I am sure not a good idea, smells like fraud to me and I certainly don't wish to go there.

I couldn't honestly say that I entered the USA again with NO intentions of getting married and adjusting status. That would be a lie.

So really the only options available to us are to get married and apply again and be prepared for a possible rough go... or move back to Canada and immigrate my girlfriend and possibly incur a ban of 3 - 5 years. This of course would mean that I might not be able to accompany her home to visit her parents who are quite old and not all that well.

Sounds like I have to break the law here by once again going into overstay until we can apply for AOS based on marriage, in order to eventually stay here legally! Wow, that is a mind bender.

Yes, I recall that this is a possibility.

Well, we have a lot to think about. Thank you for everything.

Folinskyinla

Hi:

Yes, it is complex. But it also seems that you have left out certain things and you are also making some assumptions that may or may not be justified.

I think an in person legal consultation is in order.

country_canuck

Seems like I left out certain things?


I see that you are an attorney?

country_canuck

Well it has been about a year and a lot has transpired! I remarried in Late July a few days before my removal hearing. We submitted a new 130 but were advised not to waste money on 485 because my first one was still pending and you can't have two on the go at the same time. Hmmm.... I forgot to ask if USCIS would have refunded the 485 fees had we sent the whole package in again. Interesting.

So, my day in court...

Court started off with a lady who did not have evidence of entry, one would assume she snuck in. She also had quite the police record including check fraud, providing false name to an officer, and child abuse. They also had a handful of addresses on her and when asked if any were correct she provided another. I am not sure why, but her case was continued and she walked away on her own recog. Next up, a gentleman also no legal entry and facing a charge of assault, apparently a gun was used. Again a handful of addresses none of which were correct and again a continuance with this gentleman walking in his own recog.

So we were feeling pretty confident that I would not be handcuffed and incarcerated!

We are up. We were asking for an exemption due to bona fide marriage while in proceedings and a continuance while we had our case heard in a "Velarde" hearing. The hope was that our 130 would be approved before said Velarde and that we could then ask the court to dismiss the removal proceedings allowing us to close the old 485 and thereby allowing us to submit a new one.

Judge said no, no, no, no. Canada is not such an onerous place to live, you have 120 days to voluntarily leave non appealable or 60 days to leave which is appealable.

So we appealed. The judge erred in many ways and we hope the BOA agrees. Still waiting to hear from them and still waiting for an I-130 interview. Our 130 was received in Vermont the end of July and just last week it was transferred to California. That might be a plus since they are reporting a 6 month ( next week ) while Vermont is reporting that they are still working on Feb 08 cases.

Noorah101

I didn't go back and read the whole case, but just wanted to comment on this part. I don't know what kind of I-130 interview you are waiting for. When the I-130 gets approved, it starts the process for an Immigrant Visa.

Rene

jeffreyhy

c_c,

You don't mention whether or not you had an attorney representing you at this hearing.

Regards, JEff

Folinskyinla

Hi:

You simply repeat a lot of stuff from your last post and you still have me scratching my head.

Do you have a lawyer?

country_canuck

Hi Rene,

I may be confused. Approved / interviewed. I know submitting an AOS is a waste at this time until we move our case out of the court. Perhaps you are right, the interview comes after we submit a 485. I thought though that our attorney suggested we would be called into an interview for the 130 to prove the bona fides of our marriage, since we married while in removal proceedings.

It was explained to me that my case would only be removed from the courts if we proved these bona fides through either a court hearing called a "Velarde" or through approval of an 130 and that they would likely call both of us in for an interview to provide the evidence of the bona fides. Either way, an approved 130 will apparently help in the removal of my case from court, and that is of course what need!

Cheers!