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  1. #1
    Join Date
    Feb 2012
    Posts
    1

    Default Canadian Visa Waiver Overstay Applying for I-485

    Hi,

    My wife is a Canadian citizen and I intend to apply for I-130 for her along with I-485 and all the required documents/evidence. I had not filed my taxes last year (since I did not owe the IRS any money) and as it turns out my wife requires my tax receipt for the I-865. We are now waiting for this receipt after my late filing and it will take 6-8 weeks. In addition, my wife has just discovered that although she thought she could stay in the US as a tourist for 6 months, her limit is actually 3 months because she is a Canadian that entered a US border with just her passport (under visa waiver program). She has been here for 5 months and thus we believe she has overstayed her limit. What should we do at this point? Should she stay here while we wait for my receipt and file (at that point she would have been here for 6 months). Or should she go back to Canada, and return after a week to 'reset' her entry date. Any help with this issue would be greatly appreciated.

    Thanks

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Canadian Visa Waiver Overstay Applying for I-485

    Her overstay will already create issues with her eligibility for the visa waiver program, and if she stays more than 180 days it triggers a period of ineligibility if she leaves the country. We don't have the background facts relating to her entry, whether you were married before or after the time of her entry, or whether she might be accused of having entered with fraudulent intent based upon her overstay and the timing of her petitioning to adjust her status based upon the marriage. It would be sensible for her to discuss the details of her situation with an immigration lawyer.

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