Canadian on TN VIsa who overstayed now wants to get married

[Lisablue]

Hi - I need some help/advice. I am a Canadian citizen who entered the US legally on a tn work visa with no intent to stay in the US after my visa expired.
The TN Visa was valid for one year. I ended up meeting my dream guy while legally living and working in the US.

I have a few issues:
1. Three months after starting the job in the US I got laid off from the job that I was for here under the TN Visa. I have never filed any forms or let anyone know that I got laid off. I know I was suppose to turn in my tn visa but I didn't.

2. I never left the US. I was madly in love with my us citizen boyfriend and really wanted to give things a good go between us so I figured I was aloud to stay in the US for up to 6 months as long as I didn't work here and decided to do that to see if things would work out with us. I thought if within that 6 month time period if things didn't work I would move back to Canada right away and if they did work I would go back to Canada at the end of 6 months of visiting so that I wouldn't be here longer then 6 months.

3. Things worked out perfectly between me and my now fiance
I couldnt even think about leaving him after the 6 months to go back to Canada. I was so scared that if I went back to Canada I would get in trouble for not reporting that my employment with the employer I was on the tn Visa with ended much sooner than anticipated and I didnt return to Canada immidiatley after it ending. I was scared that I wouldn't be aloud back into the US.

4. I entered the US legally in Jan 2008. My tn work visa expiration date is the end of Jan 2009. Seeing as how the employment ended in May 2008 I know that the Feb 2009 end date is just the official end date on the visa but that my eligibility for working with it actually expired the day the employment ended.

My questions are:
- Since I never reported to anyone that my employment ended will the immigration office/homeland security etc be able to see that my employment ended back in May 2008 or will they just assume it lasted the whole duration up until the end date on the Visa of Jan 2009?

- I can not leave the US now for fear of never being able to come back due to not telling anyone that my employment ended and I overstayed and have been living in the US (not working) for 8 months. I can not take the chance of going back to Canada and not seeing my fiance for 13 months. What should I do? We are thinking about going to a courthouse within the next few days to get married just so we have that official documents and we would have a real wedding this summer. If we do that what are the chances that I can get through all of the paperwork afterwards so that I can legally stay here and work here again?

ANY help would be greatly appreciated. I need answers asap as I am running out of time before the "stamped end date" on the TN Visa runs out. I think it would be harder for me to do this process if I wait until that date elapses. Someone told me that since I have that date stamped the immigration people/ homeland security will assume I worked up until that day and I would simply be changing my status after I marry my US Citizen fiancee.

I know that there are going to be suspicions during the interview process like "hmm wasnt that convinent...you got married a few days before your TN work Visa expired" The truth is we are truly in love and this is a real marriage but we are deciding to go through with the marriage sooner than the summer so that I can stay here in the US without going back to Canada first. Would that be appropriate to tell them? I know there are alot of fake marriages here so I dont know if we should be honest and say that to them or if that will make their suspicions worse. PLEASE HELP ME!!!!

[Lisablue]

Hello - FYI I posted my issue on another members question but decided just to create my own topic hoping it would make it easier for people to find my question who are in a similar situation and also need help

[Steven]

It's basically impossible to say I'm afraid. Your employer is supposed to notify USCIS when they lay you off. The question is whether they did or not. If they didn't, then you might be able to get away with filing for AOS. If they did, when you file AOS you may have a problem.

Logically the best approach is to get married, leave and then he files an I-130 for you which I'm afraid will take some time. Otherwise it's a gamble. If you leave the only problem you're going to have is a gap in your employment history, but I wouldn't have thought a year would be a big problem given the economy, provided you have a reasonable explanation.

You can re-enter and visit while you wait for the I-130 to be processed, provided CBP are okay with you visiting your husband. Obviously that can be a bit dicey, ideally you need proof of residential ties to Canada and a job would be helpful in proving that. However you can only stay six months as B-2 and your current stay this year will count against that (even though you weren't B-2) and the I-130 will take longer than six months to be processed, probably.

I suppose in theory if your employer did notify USCIS, when you surrender your I-94 when you leave then the consulate could find out you overstayed but in reality it takes ages for the I-94s to be transcribed into the system.

[Lisablue]

Hi Steve - Thanks for your advice.

Since they probably wont know the employment ended should I still get married tomorrow? If I do can I remain in the US and apply for AOS and the temporary work visa while waiting for my green card? After my official i94 end date am I still aloud to be here for up to 6 months as a visitor? If not how will that work if I marry tomorrow and apply for the AOS?

The concern I have as well is how much money did my fiance need to make over the past 3 years when he sends in his tax returns for the AOS documents? Will that affect things if he didnt make enough?
He has been a student at Harvard so he didnt really make alot of money over the past 3 years since he didnt work alot while attending.

I dont know why this is so complicated. I want to be here legally, contribute to society, work legally , pay taxes etc and live happily ever after with my future husband.

[Reba]

Check out the forums and guides at http://www.visajourney.com for ALL the information you'll need to know about marriage based immigration.

Your employer is required BY LAW to notify USCIS that your employment has ceased, and your TN is now invalid. You have racked up quite a lot of over-stay time by now. It is not you who are to notify USCIS, it is your employer. I wouldn't bank on them not knowing the law and not complying.

If you were here legally in 2008 for 3 months with your TN visa, then the following 3 months would add up to total 6 months for your annual allowable stay.

Your fiance needs to show current income of 125% of the poverty guidelines. They can be found on the USCIS website, just do a search there for "poverty guidelines". I don't know what they are for 2009, they may or may not have changed yet from 2008.

Again, check out Visa Journey for all the adjustment of status info, as well as the CR1 info. Basically at this point you are in the country illegally, and you are running the risk of being deported and banned from ever coming back.

[Steven]

Since they probably wont know the employment ended should I still get married tomorrow?

"Probably" isn't "definitely" so you've got two problems, either your employer has notified USCIS, in which case you're screwed, or alternatively when you file for AOS there is a possibility USCIS might check with your employer, in which case you're screwed.

It's impossible to say how to do something that is technically illegal. To do it legally you pretty much need to get married, leave and have him apply for you on I-130. If you want to stay with him you'd have to try re-entering as a visitor while you wait but there's no guarantee that CBP will let you in.

Nobody on here can tell you what the odds are of USCIS checking up with your employer or what the odds are they informed USCIS for obvious reasons. You might get away with it, you might not. Impossible to say.

If I do can I remain in the US and apply for AOS and the temporary work visa while waiting for my green card? After my official i94 end date am I still aloud to be here for up to 6 months as a visitor? If not how will that work if I marry tomorrow and apply for the AOS?

You can't stay beyond the end date of your I-94, assuming you were actually still employed which you aren't. Time in the US in any non-immigrant category counts against a visit.

The concern I have as well is how much money did my fiance need to make over the past 3 years when he sends in his tax returns for the AOS documents? Will that affect things if he didnt make enough?

Must be 125% of the poverty rate, I forget what it is exactly but it's not much. Read the instructions for I-864.

Really the place to be looking for advice on this is www.visajourney.com