Marriage via i-130 but have no i-94 card and am in the US.

Hey Guys. Fantastic forum. I have read a lot so I will try to help and contribute where I can.

I do however have a question for those than can help me.

I am in the US (have been for a year) and entered on a Canadian 6 month visitor visa which I have clearly overstayed. I have been hanging with my girlfriend of 5-6 years who is a US born citizen. I DID NOT come this past time with the intention of marriage at all. But now we are there, and want to do it very badly as we know I have to return home at some point.

Looking at the i-130 paperwork we saw a spot where she has to answer whether or not I am currently in the US, and what my i-94 form says. Problem is, I came in on the AMTRAK via montreal station (back woods middle of nowhere boarder crossing where they come aboard the train) and I dont think they even gave me an i-94. I think they just asked who I was going to see, for how long, then looked at my passport and said OK.

Are Canadians sometimes not given this i-94? And if so, what do I do about this when filing out the i-130. (We want to get married this week so are just filling out all the paper work a few days premeture I know) and I am perplexed as to my course of action. Either way I will get pinched. Can I just convince the INS guy during the interview that this truly was a last minute decision, and pretend like I am at the end of my 6 month visitor visa stay? I mean, do they enter every i-94 card into a computer and dont many thousands or millions of people lose these?

I dunno. Kinda scared about what to do, and dont want to leave my girlfriend at all. We are madly in love and would seriously suck. (As I know it does for all you also.) Any help is SOOO appreciated. Thanks Canuckers!

Canadians are very rarely given I-94s. We're pretty much exempt from having to use them unless we are entering the US with some sort of visa. As we don't need a visa to enter to visit, we don't get an I-94.

I wouldn't recommend lying to a USCIS official under any circumstances, ever. You've clearly overstayed your visit, and now you're going to get married so that you can stay. Whether or not your AOS would be approved is no one's guess here. I'd suggest you speak with an experienced immigration lawyer who has done this sort of case before (ie: a Canadian who overstayed and got married and adjusted). Most will give you up to an hour of their time for a consult for a small fee.

for detailed information on marriage based immigration to the US see http://www.visajourney.com

If you've overstayed it's not a wise move to do an in-country I-130 because you're there illegally and that will come up at the interview. If you haven't been working in the US while you're there the best idea is to leave, have her put the Canadian address on the I-130 and use consular processing.

Get married in Canada. Or get married ASAP and then leave, but the sooner you leave the less likely you are to have problems at the interview because there is no unexplainable gap.

But as Reba suggests, you may want to talk to a local immigration consultant who is familar with this subject and like she says is experienced and knows in detail what they're talking about as a lot of them are useless.

You're not supposed to enter in B-2 visitor status as a Canadian and apply for AOS, which is why the I-130 form doesn't take that into account (as you have no I-94). B-2 visitor requires "non-immigrant intent" which clearly you don't have if you intend on staying and getting married.

Canadians are very rarely given I-94s.

They can impose them if they're not 100% sure they believe you, but generally speaking they wouldn't let you in anyway if they didn't believe you.

There are situations where B-2 status can be curtailed from six months and in those cases USCIS will impose an I-94.

The one I'm familiar with is if you have a conditional import authorization for controlled goods on a State Dept. or Commerce Dept. import licence, e.g. to attend a trade show. You present the import licence to CBP to import the goods and then USCIS issues an I-94 which is co-terminous with the expiry date of the licence (i.e. the date on which the items must be removed).

Hey Thanks so much guys.

Steven, do you mean use DCF (Direct Consular Filing) because I was under the impression that for this, she (the USC) would have to have lived in Canada for about a year. No?

Also, would I be able to get my work permit in the US in about the same time frame if I filed the i-130 from inside the country, as outside? Or is it a longer wait.

And lastly, if I DID decide to file inside the country, should I just leave the i-94 spot on the i-130 blank (because I know other overstayed B-2 Canadians have gotten married and filed inside the country too) and submit it with my date of entry.

You stated that it would 'come up' in the interview, but by that time I will be in the US ARMY as my wife and I have discussed, and I hope that may help show I want to earn my place in the country rather than sneak in all shady. Thanks Reba & Steve and all.

If you've overstayed it's not a wise move to do an in-country I-130 because you're there illegally and that will come up at the interview. If you haven't been working in the US while you're there the best idea is to leave, have her put the Canadian address on the I-130 and use consular processing.

People who are legitimately married to US citizens are allowed an indefinite grace period to be out of status and still qualify to adjust status. They are the only category of immigrant so privileged. The long stay may even be an advantage in one sense because it makes it more plausible the intent to get married didn't arise until after entry.

It will certainly come up at the interview, but it is not a bar to getting a green card via marriage, and a good attorney should be able to navigate around this issue legally.

No he doesn't mean DCF. That option is only available to US citizens who have legal presence in Canada for 2 years (I think it is now), or are dual citizens. As your girlfriend is neither of those, (I'm assuming) DCF is not an option.

He meant that if you leave the US and your then wife files the I-130, you would have to remain in Canada until you are granted an application interview at the US consulate in Montreal. However, I wouldn't recommend leaving at this point. It will be quite obvious on your application thta you have a rather large gap of time without a job or living in Canada, and will be obvious that overstayed in the US, which may or may not cause you to need a waiver, which will take a while to process.

I'm not sure you can enlist with the Army until you have your green card, so I don't think that's going to help your argument there. You might want to check again with the enlistement office.

Also, would I be able to get my work permit in the US in about the same time frame if I filed the i-130 from inside the country, as outside? Or is it a longer wait.

You can't file from inside the US as I explained above, you're there illegally from the sounds of it.

And lastly, if I DID decide to file inside the country, should I just leave the i-94 spot on the i-130 blank (because I know other overstayed B-2 Canadians have gotten married and filed inside the country too) and submit it with my date of entry.

I wouldn't try it. Depends on how long you've overstayed but if it comes up at the interview, you're in trouble (this is assuming they don't pass it onto enforcement and deport you). The thing to do is leave ASAP, imo. And then she files the I-130 when you're married.

Even if you were there legally in B-2 status, you have to have "non-immigrant" intent which you clearly don't have if you are intending on staying, so even then it wouldn't be smart to file in the US.

You stated that it would 'come up' in the interview, but by that time I will be in the US ARMY as my wife and I have discussed, and I hope that may help show I want to earn my place in the country rather than sneak in all shady. Thanks Reba & Steve and all.

You need to be an LPR to join the Army, they will ask to see your PR card when you sign up. Which you can't get obviously until the I-130 is approved.

Well now I am confused as Reba and Steven think opposite.

Have either of you had first hand experience with such a case? I am surprised quite frankly that there are not mroe threads from Canadians in a similar situation i.e (Marriage after overstaying visitor visa.)

I am as you said Steven, now illegal, and have substantially overstayed my 6 month visitor visa. But I did initially enter the country legally.

Some have said it may even help my case the fact that I have overstayed and not returned home showing I wanted to be with my soon to be wife.

I would seriously fear submitting a i-130 and saying I had overstayed a visitor visa only to have ICE come knocking and send me home where I couldn't see my fiance for the next 5 years (in the US at least).

I just want to live in the US, Pay taxes, Get married and die. Why is it all so hard. haha

I for some SPAM reason am not allowed to post URLS but I posted this question on another forum and this was there response. The post is a few from the top on the Visa Journey website forum regarding Adjustment of Status for Work and tourist visas. It is about 3 down and has US ARMY in the title. Please post that thread URL here if you have sufficient privelages. Sorry bout that. Or someone with a full account just reply with the link active.

Also this forum seems very in tune with current US immigration proceedure hence the double post. So thanks again for any additional info!

Tony, seriously you need to speak with an EXPERIENCED immigration lawyer in the US and you need to do some research. I believe I have posted the link to Visa Journey for you previously (I post it probably 3 or 4 times every day somewhere!) http://www.visajourney.com There are litterally dozens of people there in your same situation.

Most of the time an overstay will be overlooked if one has applied to adjust status by marriage to a US citizen. IF YOU CAN PROVE AT YOUR INTERVIEW that you did not enter the US with intent to stay. ie: you didn't quit your job and sell all your stuff before you left Canada. However, you DO risk being denied your application and deported. This risk is also there even if you hadn't overstayed. IF you leave, you will most definitely be barred from re-entering, possibly for up to 3 years, or maybe only until your visa is approved. You haven't said how long you have overstayed so we have no way to guess.

Yes, I know of others who have overstayed, got married and stayed to adjust. They're at Visa Journey, not here. We usually send anyone specifically looking for marriage based immigration information over there, because This Site Is Not About Immigration. All the information is already over there, we're not recreating the wheel here.