AlisonPA

I can't understand why it's taken you 5 months to think about this. If you'd applied for a K3 visa you'd probably have it by now. I can't believe you have both just sat there doing nothing about this for 5 months.

CalgaryAMC

I was hoping someone else would step up here but as none have yet I shall do my best.

Let's start with the easy part: his entering the US as a spouse of a US citizen is dealt with accurately by Mrtravelkay. There is no issue there. Forget about it.

The single issue you have is regarding his overstay.

I am estimating that your husband spent approximately 14 months in the country without a visa, having entered as a Canadian with no visa requirement. That puts him at an overstay of 8 months - or about 240 days. So forget about the 10 year bar. That's not what you're looking at.

What you are concerned with is the 3-year bar, which kicks in if you have overstayed by more than 180 days but less than 1 year. A 240 day overstay would fall into this category. But here's where you need to do some math. Find out the exact day he came, and the exact day he left, and then calculate the exact number of days he overstayed. If that number is less than 180 you can take a sigh of relief (although that does not mean he will be allowed to re-enter, it just means he won't be banned for 3 years). If that number is greater than 180 then you have a more serious problem, because the 3 year ban takes effect.

It may be possible to have this waived based on your various personal factors, but it's far beyond me to go into that. (I've already far exceeded my competence here!)

At any rate, if you want him to return to the US to live and work, then he must be properly authorized. A K-3 visa following the filing of an application for permanent residency is the way to go about this. However, this overstay throws a spanner in the works and I would want to have that considered by an immigration attorney before your husband does anything. He should certainly not try to re-enter the US at this point.

lairdside

He entered visa free as a Canadian. He may not have accrued any unlawful presence for the purposes of the IIRAIRA of 1996.

She needs to check this BEFORE she starts panicking about waivers.

lairdside

That's helpful.

Shall we add insult to injury by telling her to go boil her head too?

Those five months are gone - we can't get them back.

(If anyone has a "magic time wand" or similar item please let me know).

Rete

As both Calgary and lairdside have said your situation is not hopeless. While it won't be rectified quickly it is not as bad you think it is. His overstay, if he is found to have committed an overstay, would not be 10 years but 3 to 5 years, and then only if found guilty of an overstay.

If on exit from the US back to Canada he was not stopped and his passport not stamped with language that indicates that he has been banned, he might be okay with the procedure to migrate to the US through the K-3 visa which is quicker than waiting for the I-130.

Did he drive back and forth? If he flew, did he receive an I-94 in his passport? And if so, was it taken from his passport when he re-entered Canada in August? If he drove, he would not have gotten this I-94 unless he asked for it and paid $6 at the POE.

Does he have a criminal record? If so, this may be a reason for the K-3 to be either denied or delayed as he needs his court records for the Consulate interview.

How long have you been married and is there a reason why you did not file for his adjustment of status before he returned to Canada? I know one of the reasons might have been that if he leaves Canada to migrate to the US his health benefits will stop. At least they did in my Canadian husband's case as he is deemed a non-resident of Canada.

If you live in a fairly large community try finding a community sponsored immigration program where costs are free or on a sliding scale, i.e. Catholic Charities, Irish Community Center (in New York), etc.

The bare bones of what you need to do is file for his I-130 at the service center for where you live. When you get the receipt you then file for the I-129F at the Chicago address for the start of the K-3 visa. After the I-129F is approved it is sent to the national visa center and from there you will be contacted and given a package of documents he will need to complete for the US Consulate in either Montreal or Vancouver. After he has the documents required he returns the checklist to the NVC and they will set up his interview appointment with the appropriate US Consulate for him. If he is approved at the interview he will be given the K-3 in his passport and he can come back to the US.

Good luck.

Rete

Folinskyinla

Hi Debroah:

From the facts YOU give, it may just be fine. However, there are potential land mines suggested by your facts. I suggest strongly that you contact a competent immigration attorney.

The bars to returns you talk about are for exceeding a EXPIRY DATE given by the immigration people. This is NOT the same as violation of status. In a quirk of the immigration law administration, Canadian visitors do NOT get a time certain on visitor documents.

However, your fact situation is setting off alarm bells in my mind that take this out of a news group type of problem.

Deborah

Rete <member167@british_expats.com> wrote in message news:<[email protected]>...
    > As both Calgary and lairdside have said your situation is not hopeless.
    > While it won't be rectified quickly it is not as bad you think it is.
    > His overstay, if he is found to have committed an overstay, would not be
    > 10 years but 3 to 5 years, and then only if found guilty of an overstay.
    >
    >
    > If on exit from the US back to Canada he was not stopped and his
    > passport not stamped with language that indicates that he has been
    > banned, he might be okay with the procedure to migrate to the US through
    > the K-3 visa which is quicker than waiting for the I-130.
    >
    > Did he
    > drive back and forth? If he flew, did he receive an I-94 in his
    > passport? And if so, was it taken from his passport when he re-entered
    > Canada in August? If he drove, he would not have gotten this I-94
    > unless he asked for it and paid $6 at the POE.
    >
    > Does he have a criminal
    > record? If so, this may be a reason for the K-3 to be either denied or
    > delayed as he needs his court records for the Consulate interview.
    >
    > How
    > long have you been married and is there a reason why you did not file
    > for his adjustment of status before he returned to Canada? I know one
    > of the reasons might have been that if he leaves Canada to migrate to
    > the US his health benefits will stop. At least they did in my Canadian
    > husband's case as he is deemed a non-resident of Canada.
    >
    > If you live in
    > a fairly large community try finding a community sponsored immigration
    > program where costs are free or on a sliding scale, i.e. Catholic
    > Charities, Irish Community Center (in New York), etc.
    >
    > The bare bones
    > of what you need to do is file for his I-130 at the service center for
    > where you live. When you get the receipt you then file for the I-129F
    > at the Chicago address for the start of the K-3 visa. After the I-129F
    > is approved it is sent to the national visa center and from there you
    > will be contacted and given a package of documents he will need to
    > complete for the US Consulate in either Montreal or Vancouver. After he
    > has the documents required he returns the checklist to the NVC and they
    > will set up his interview appointment with the appropriate US Consulate
    > for him. If he is approved at the interview he will be given the K-3 in
    > his passport and he can come back to the US.
    >
    > Good luck.
    >
    > Rete
    >
    >
    > Originally posted by CalgaryAMC
    > > I was hoping someone
    > else would step up here but as none have yet I shall do my best.
    > >
    > >
    > Let's start with the easy part: his entering the US as a spouse of a US
    > citizen is dealt with accurately by Mrtravelkay. There is no issue
    > there. Forget about it.
    > >
    > > The single issue you have is regarding his
    > overstay.
    > >
    > > I am estimating that your husband spent approximately 14
    > months in the country without a visa, having entered as a Canadian with
    > no visa requirement. That puts him at an overstay of 8 months - or about
    > 240 days. So forget about the 10 year bar. That's not what you're
    > looking at.
    > >
    > > What you are concerned with is the 3-year bar, which
    > kicks in if you have overstayed by more than 180 days but less than 1
    > year. A 240 day overstay would fall into this category. But here's where
    > you need to do some math. Find out the exact day he came, and the exact
    > day he left, and then calculate the exact number of days he overstayed.
    > If that number is less than 180 you can take a sigh of relief (although
    > that does not mean he will be allowed to re-enter, it just means he
    > won't be banned for 3 years). If that number is greater than 180 then
    > you have a more serious problem, because the 3 year ban takes effect.
    > >
    >
    > > It may be possible to have this waived based on your various personal
    > factors, but it's far beyond me to go into that. (I've already far
    > exceeded my competence here!)
    > >
    > At any rate, if you want him to return
    > to the US to live and work, then he must be properly authorized. A K-3
    > visa following the filing of an application for permanent residency is
    > the way to go about this. However, this overstay throws a spanner in the
    > works and I would want to have that considered by an immigration
    > attorney before your husband does anything. He should certainly not try
    > to re-enter the US at this point.

First of all, let me apologize to all of you giving advice as I am
obviously not giving enough needed information. Let me try to rectify
that now. He came to the US in June of 2002 via car (a friend drove
him across the border to maine). He does not have a passport, just
his canadian issued medical card. He came here to Michigan, where I
live, via a bus(Greyhound). We were told my an immigration attorney
that canadians are allowed to "visit" the US for 6 months. That means
his stay would have been up by the 28th of December 2002. He returned
to canada via a bus, had no problems returning, exactly one week
before labor day 2003. For all of you asking why it has taken five
months to do anything, well that was kind of a personal thing I really
didn't think anyone needed to know. But here you go, As I am the only
one working at the time, I could support our family, but it was
cutting it close so to speak. I have two children from a previous
marriage, and was pregnant with our now 7 1/2 month old daughter. I
was put on early maternity leave because of my work, my doctor was
afraid that it would put me into early labor. The doctor's office
took two months before they got their end of the paper work into the
insurance company, so it was 2 1/2 months before I got my first
disability check (my insurance has short term disability for
pregnancy, etc). And to top it off, it was only 60 percent of my pay.
I had a mortgage, utility bills, car insurance, groceries, etc to
cover on $133 dollars a week. Hope all of you that had to put salt in
my wounds so to speak now feel better knowing the more personal
aspects of why its taking so long. I just barely meet the
requirements of the support visa, and every time I thought I would
have the money to file for the visas, something came up that HAD to be
taken care of, like heat for the home, etc. For those of you who have
empathized with my situation and have been more than helpful, I thank
you sooooooooo much for you time and suggestions. God Bless you
all!!!!!!!!!

Deborah

Rete <member167@british_expats.com> wrote in message news:<[email protected]>...
    > As both Calgary and lairdside have said your situation is not hopeless.
    > While it won't be rectified quickly it is not as bad you think it is.
    > His overstay, if he is found to have committed an overstay, would not be
    > 10 years but 3 to 5 years, and then only if found guilty of an overstay.
    >
    >
    > If on exit from the US back to Canada he was not stopped and his
    > passport not stamped with language that indicates that he has been
    > banned, he might be okay with the procedure to migrate to the US through
    > the K-3 visa which is quicker than waiting for the I-130.
    >
    > Did he
    > drive back and forth? If he flew, did he receive an I-94 in his
    > passport? And if so, was it taken from his passport when he re-entered
    > Canada in August? If he drove, he would not have gotten this I-94
    > unless he asked for it and paid $6 at the POE.
    >
    > Does he have a criminal
    > record? If so, this may be a reason for the K-3 to be either denied or
    > delayed as he needs his court records for the Consulate interview.
    >
    > How
    > long have you been married and is there a reason why you did not file
    > for his adjustment of status before he returned to Canada? I know one
    > of the reasons might have been that if he leaves Canada to migrate to
    > the US his health benefits will stop. At least they did in my Canadian
    > husband's case as he is deemed a non-resident of Canada.
    >
    > If you live in
    > a fairly large community try finding a community sponsored immigration
    > program where costs are free or on a sliding scale, i.e. Catholic
    > Charities, Irish Community Center (in New York), etc.
    >
    > The bare bones
    > of what you need to do is file for his I-130 at the service center for
    > where you live. When you get the receipt you then file for the I-129F
    > at the Chicago address for the start of the K-3 visa. After the I-129F
    > is approved it is sent to the national visa center and from there you
    > will be contacted and given a package of documents he will need to
    > complete for the US Consulate in either Montreal or Vancouver. After he
    > has the documents required he returns the checklist to the NVC and they
    > will set up his interview appointment with the appropriate US Consulate
    > for him. If he is approved at the interview he will be given the K-3 in
    > his passport and he can come back to the US.
    >
    > Good luck.
    >
    > Rete
    >
    >
    > Originally posted by CalgaryAMC
    > > I was hoping someone
    > else would step up here but as none have yet I shall do my best.
    > >
    > >
    > Let's start with the easy part: his entering the US as a spouse of a US
    > citizen is dealt with accurately by Mrtravelkay. There is no issue
    > there. Forget about it.
    > >
    > > The single issue you have is regarding his
    > overstay.
    > >
    > > I am estimating that your husband spent approximately 14
    > months in the country without a visa, having entered as a Canadian with
    > no visa requirement. That puts him at an overstay of 8 months - or about
    > 240 days. So forget about the 10 year bar. That's not what you're
    > looking at.
    > >
    > > What you are concerned with is the 3-year bar, which
    > kicks in if you have overstayed by more than 180 days but less than 1
    > year. A 240 day overstay would fall into this category. But here's where
    > you need to do some math. Find out the exact day he came, and the exact
    > day he left, and then calculate the exact number of days he overstayed.
    > If that number is less than 180 you can take a sigh of relief (although
    > that does not mean he will be allowed to re-enter, it just means he
    > won't be banned for 3 years). If that number is greater than 180 then
    > you have a more serious problem, because the 3 year ban takes effect.
    > >
    >
    > > It may be possible to have this waived based on your various personal
    > factors, but it's far beyond me to go into that. (I've already far
    > exceeded my competence here!)
    > >
    > At any rate, if you want him to return
    > to the US to live and work, then he must be properly authorized. A K-3
    > visa following the filing of an application for permanent residency is
    > the way to go about this. However, this overstay throws a spanner in the
    > works and I would want to have that considered by an immigration
    > attorney before your husband does anything. He should certainly not try
    > to re-enter the US at this point.

I also forgot to add we got married october 29th, 2002. Sorry I left
that piece of info out on my last reply

lairdside

Deborah,
If you can give me an idea of the area you live in I shall try to find a list of places which may give you some pro bono help.

Deborah

lairdside <member5824@british_expats.com> wrote in message news:<[email protected]>...
    > Originally posted by Deborah
    > > Rete
    > <member167@british_expats.com> wrote in message
    > news:<[email protected]>...
    > > > As both Calgary
    > and lairdside have said your situation is not hopeless.
    > > >
    > While it won't be rectified quickly it is not as bad you think it
    > is.
    > > > His overstay, if he is found to have committed an
    > overstay, would not be
    > > > 10 years but 3 to 5 years, and then
    > only if found guilty of an overstay.
    > > >
    > > >
    > >
    > > If on exit from the US back to Canada he was not stopped and
    > his
    > > > passport not stamped with language that indicates that
    > he has been
    > > > banned, he might be okay with the procedure to
    > migrate to the US through
    > > > the K-3 visa which is quicker
    > than waiting for the I-130.
    > > >
    > > > Did he
    > >
    > > drive back and forth? If he flew, did he receive an I-94 in
    > his
    > > > passport? And if so, was it taken from his passport
    > when he re-entered
    > > > Canada in August? If he drove, he
    > would not have gotten this I-94
    > > > unless he asked for it and
    > paid $6 at the POE.
    > > >
    > > > Does he have a
    > criminal
    > > > record? If so, this may be a reason for the K-3
    > to be either denied or
    > > > delayed as he needs his court
    > records for the Consulate interview.
    > > >
    > > >
    > How
    > > > long have you been married and is there a reason why
    > you did not file
    > > > for his adjustment of status before he
    > returned to Canada? I know one
    > > > of the reasons might have
    > been that if he leaves Canada to migrate to
    > > > the US his
    > health benefits will stop. At least they did in my Canadian
    > >
    > > husband's case as he is deemed a non-resident of Canada.
    > >
    > >
    > > > If you live in
    > > > a fairly large
    > community try finding a community sponsored immigration
    > > >
    > program where costs are free or on a sliding scale, i.e. Catholic
    >
    > > > Charities, Irish Community Center (in New York), etc.
    > >
    > >
    > > > The bare bones
    > > > of what you need to do
    > is file for his I-130 at the service center for
    > > > where you
    > live. When you get the receipt you then file for the I-129F
    > >
    > > at the Chicago address for the start of the K-3 visa. After the
    > I-129F
    > > > is approved it is sent to the national visa center
    > and from there you
    > > > will be contacted and given a package
    > of documents he will need to
    > > > complete for the US Consulate
    > in either Montreal or Vancouver. After he
    > > > has the
    > documents required he returns the checklist to the NVC and they
    > >
    > > will set up his interview appointment with the appropriate US
    > Consulate
    > > > for him. If he is approved at the interview he
    > will be given the K-3 in
    > > > his passport and he can come back
    > to the US.
    > > >
    > > > Good luck.
    > > >
    > >
    > > Rete
    > > >
    > > >
    > > > Originally posted
    > by CalgaryAMC
    > > > > I was hoping someone
    > > > else
    > would step up here but as none have yet I shall do my best.
    >
    > > >
    > > > >
    > > > Let's start with the easy part:
    > his entering the US as a spouse of a US
    > > > citizen is dealt
    > with accurately by Mrtravelkay. There is no issue
    > > > there.
    > Forget about it.
    > > > >
    > > > > The single issue you
    > have is regarding his
    > overstay.
    > > > >
    >
    > > > I am estimating that your husband spent approximately 14
    > >
    > > months in the country without a visa, having entered as a
    > Canadian with
    > > > no visa requirement. That puts him at an
    > overstay of 8 months - or about
    > > > 240 days. So forget about
    > the 10 year bar. That's not what you're
    > > > looking at.
    >
    > > >
    > > > > What you are concerned with is the 3-year bar,
    > which
    > > > kicks in if you have overstayed by more than 180
    > days but less than 1
    > > > year. A 240 day overstay would fall
    > into this category. But here's where
    > > > you need to do some
    > math. Find out the exact day he came, and the exact
    > > > day he
    > left, and then calculate the exact number of days he overstayed.
    > >
    > > If that number is less than 180 you can take a sigh of relief
    > (although
    > > > that does not mean he will be allowed to re-
    > enter, it just means he
    > > > won't be banned for 3 years). If
    > that number is greater than 180 then
    > > > you have a more
    > serious problem, because the 3 year ban takes effect.
    > > >
    >
    > > >
    > > > > It may be possible to have this waived
    > based on your various personal
    > > > factors, but it's far
    > beyond me to go into that. (I've already far
    > > > exceeded my
    > competence here!)
    > > > >
    > > > At any rate, if you
    > want him to return
    > > > to the US to live and work, then he
    > must be properly authorized. A K-3
    > > > visa following the
    > filing of an application for permanent residency is
    > > > the
    > way to go about this. However, this overstay throws a spanner in
    > the
    > > > works and I would want to have that considered by an
    > immigration
    > > > attorney before your husband does anything. He
    > should certainly not try
    > > > to re-enter the US at this
    > point.
    > >
    > > I also forgot to add we got married october 29th,
    > 2002. Sorry I left
    > > that piece of info out on my last reply
    >
    >
    > Deborah,
    > If you can give me an idea of the area you
    > live in I shall try to find a list of places which may give you some
    > pro bono help.

lairdside,
I live in Michigan, north of the tri-city area, ie, north of Bay city,
Saginaw and Flint. South of the Tawas area. Imbetween Standish and
Omer. Hope that helped. If you need to contact me via email, here is
my email address [email protected] Thanks for you help, all of
you!!!!!

lairdside

I sent you an email

supernav

Lack of knowledge of US laws got him into this mess.

So i HIGHLY suggest you don't try to rectify this by going to the internet and asking people.

Do the RIGHT thing this time. Get a lawyer and get PROFESSIONAL help.

He may not even be in a bad situation after all -- but one more abuse of immigration law *MAY* put him into a bad situation.

Get a lawyer ASAP.

-= nav =-

lairdside

They've been advised of this several times in this thread, by several posters, including myself.

The OP has already explained how difficult her financial situation is.

I sent her a list of pro bono immigration services for her area.