Wife entered/living ~legally, but i94 expired

[totalimpact]

What is the name of your state? CA

My wife and I live on the border, I brought her to the US to live with me here last year, but we didnt start any paper work for her to live here permanently. We are legally married in the US. She entered on a Tourist Visa + I94.

We had a baby in March (in USA), so the 9 months prior she had no job, she just stayed home, either my house, or her mothers in Mexico. Her I94 expired in January, and she was afraid to try for another since she had no recent proof of income, or residency in mexico.

We hired a paralegal service to submit our paperwork for permanent residency, and eventually citizenship, it has taken us a couple of months to get all our paperwork organized.

Anyways, the firm is saying that it is perfectly fine that she has been living with me in the US with an expired I94. Is that true?? - Or should we try to get a new i94 before submitting everything to INS?

Also, I am up in the air - my cousin in Canada wants us to come to his wedding in a couple months, but I know my wife wont be able to leave for at least 3 months if we start the process now - so I am wondering if we should wait, and try to get a new I94 now so we can go to Canada - but then we would have to say that she resides in Mexico to get the new i94 - even though we have several documents showing otherwise ie medical insurance, hospital records.

Leaving the country isnt that important - I am mainly concerned about how they will look at the I94 either way.

Thanks in advance for advice

[Lexxi2006]

Since she has overstayed her I94, there is no way she will get another if she leaves and tries to come back.. There is an automatic ban of 3-10 years Your wife needs to stay put until the papers are sent in and she receives advanced parole or her greencard.

[totalimpact]

How easy/expensive is it to get advanced parol, and-
Should we be concerned at all that she will be turned down by being upfront with the INS in telling them that she has lived here without the i94.

Again, we havent started any of the process at all, nobdy knows that she is "living" in the US, except for our medical insurance and the hospital. So there isnt much stopping her from getting a i94 - is there?

[Lexxi2006]

Do you even know what I94 is? Sir, your wife has exceeded the time given to stay in the U.S. There is no way in hell she will be given a new one. Send the damn papers in to make her a lawful permanant resident ASAP, because if ICE finds out about her, they won't care that she's married to you or have your child. You can submit the I131(advanced parole/travel document) form along with the other papers . Hope this is clear enough

[evcalyptos]

Since she has overstayed her I94, there is no way she will get another if she leaves and tries to come back.. There is an automatic ban of 3-10 years Your wife needs to stay put until the papers are sent in and she receives advanced parole or her greencard.

If she faces an automatice ban, isn't it a really bad idea to use Advance Parole? If she has a ban, they won't let her back in, even with the AP document, correct?

[totalimpact]

....

I understand what your saying - you are thinking in terms of the law, I am thinking in terms of reality.

I'm sure you know all this - but just correct me if I'm missing details- the I94 is a little square paper that we pay $6 for at the border - it is required if intention to enter beyond 25 miles of the border, or a stay of more than 3 days. Also required is that we present it upon return to Mexico.

The thing is we enter and leave freely several times a month (land border crossing), and have NEVER presented the i94 on departure in the past, 5 other members of her family use the I94, and I know for a fact they have NEVER returned any of them, upon request for a new one, even a couple weeks after the old one expired, customs agents say nothing about the old one, they only ask for the Visa, pay checks and proof of address. They dont even ask for a passport (I know 2008). Right now we can do a normal crossing, tell them we are going shopping, and she shows her Visa (a lie - I know).

I am sure they have some obscure way of finding us here, but in reality it seems they dont keep very good track of that stuff. I know the harsh reality you present could happen. So I guess I have answered my original question there - the INS doesnt really track the I-94 that close, but who knows when someone might change their mind- right?

So on to my other original question - how hard is it to get the advanced parol, I guess it costs $165? - and as evcalyptos noted - if something comes up in their preliminary investigation process before they approve conditional permanent residency status - she could be denied entry even with it?????

[Lexxi2006]

If she faces an automatice ban, isn't it a really bad idea to use Advance Parole? If she has a ban, they won't let her back in, even with the AP document, correct?

Correct thinking

[totalimpact]

Does anyone else have an opinion on this topic?

I kind of feel like it would be safer to get a new i94 before submitting to the INS, since I know these they hand the i94 out like candy. -I personally know of ~30+ instances where an expired i94 posed very little interest or issue when getting a new one.

If I present the INs with an expired I94 when applying for residency - wouldnt they be more prone to scrutinize that and use it for reason to cancel her visa?

[Lexxi2006]

I understand what your saying - you are thinking in terms of the law, I am thinking in terms of reality.

I'm sure you know all this - but just correct me if I'm missing details- the I94 is a little square paper that we pay $6 for at the border - it is required if intention to enter beyond 25 miles of the border, or a stay of more than 3 days. Also required is that we present it upon return to Mexico.

The thing is we enter and leave freely several times a month (land border crossing), and have NEVER presented the i94 on departure in the past, 5 other members of her family use the I94, and I know for a fact they have NEVER returned any of them, upon request for a new one, even a couple weeks after the old one expired, customs agents say nothing about the old one, they only ask for the Visa, pay checks and proof of address. They dont even ask for a passport (I know 2008). Right now we can do a normal crossing, tell them we are going shopping, and she shows her Visa (a lie - I know).

I am sure they have some obscure way of finding us here, but in reality it seems they dont keep very good track of that stuff. I know the harsh reality you present could happen. So I guess I have answered my original question there - the INS doesnt really track the I-94 that close, but who knows when someone might change their mind- right?

So on to my other original question - how hard is it to get the advanced parol, and how much does it cost? - and as evcalyptos noted - if something comes up in their preliminary investigation process before they approve conditional permanent residency status - she could be denied entry even with it?????

I don't know what kind of I94 that family is given, but everyone else who enters the US is given a specific amount of time to stay here. If they stay beyond that time,they risk being barred if they leave and try coming back. Sir, please forget about the I131 (advanced parole) , hire an attorney and work on sending in the I130, I1485, G325A and I765 if she was wants permission to work while she waits for her papers .

Disclaimer: I am not an attorney, wait to hear what immigration Attorney Lana has to say

[totalimpact]

hire an attorney

thats my problem, I have hired a lawfirm, and they give me the same answers that I get here - mainly I want to know how important the I94 issue is on our request for residency - my paralegal asked her attorney and they couldnt give me a straight answer on this subject.

To me the i94 seems kind of trivial, and in one sentence they/you present it that way as well, but in the next sentence, my lawyer and you present the i94 as highly important. - this is what makes me uncomfortable.

I just talked to another friend that uses the i94, and he also says they are pretty much cookie cutter - 6 months everytime, no matter if he says he will stay week or 2, and they never ask about the expired ones that he never turned in.

[evcalyptos]

I understand what your saying - you are thinking in terms of the law, I am thinking in terms of reality.

I'm sure you know all this - but just correct me if I'm missing details- the I94 is a little square paper that we pay $6 for at the border - it is required if intention to enter beyond 25 miles of the border, or a stay of more than 3 days. Also required is that we present it upon return to Mexico.

The thing is we enter and leave freely several times a month (land border crossing), and have NEVER presented the i94 on departure in the past, 5 other members of her family use the I94, and I know for a fact they have NEVER returned any of them, upon request for a new one, even a couple weeks after the old one expired, customs agents say nothing about the old one, they only ask for the Visa, pay checks and proof of address. They dont even ask for a passport (I know 2008). Right now we can do a normal crossing, tell them we are going shopping, and she shows her Visa (a lie - I know).

I am sure they have some obscure way of finding us here, but in reality it seems they dont keep very good track of that stuff. I know the harsh reality you present could happen. So I guess I have answered my original question there - the INS doesnt really track the I-94 that close, but who knows when someone might change their mind- right?

So on to my other original question - how hard is it to get the advanced parol, I guess it costs $165? - and as evcalyptos noted - if something comes up in their preliminary investigation process before they approve conditional permanent residency status - she could be denied entry even with it?????

Whether or not they track the I-94 overstayers should not matter to you; by filing to Adjust Status you are putting your wife right under their noses.

You have not given the essential information: when did she last enter the US, and what is the date on the lst I-94 she holds?

If she has accumulated enough overstay to incur a ban, the ban begins the day she exits the US--like to that wedding in Canada. When she comes back to the border to return to her real home in the US, she'll be informed that she can't come in and see ya in 3 or 10 years.
CIS will issue Advance Parole documents to anyone who applies. But AP docs will not do anything about the ban (if she has one). Point is, she has overstayed, she has a way out of it, and now seems like the right time to legalize her status so you can stop the silly games. The price might be that she missed the wedding in Canada, but that is not the worst thing to give up, and better to miss that than risk 3 or 10 years excluded from the US.

[totalimpact]

Whether or not they track the I-94 overstayers should not matter to you; by filing to Adjust Status you are putting your wife right under their noses.

You have not given the essential information: when did she last enter the US, and what is the date on the lst I-94 she holds?

Thats my concern - she will be under their nose, and maybe its better to have a current i94.

She last entered the US 2 weeks ago, the last I94 was given in July/06, expired Jan/07. Like I said, we enter/leave all the time just with her Visa- I know this will change once we submit- but am I taking a bigger risk by submitting without a current I94?? We could get one, change the dates on our docs, and submit in a couple months when everything "looks" better. If they ask about the baby, I can say we were living in Mexico at the time, a 2 day stay at the hospital wouldnt be illegal. I live only 2 miles from the border, so its pretty easy for us to get back and forth.

So yes - I want to stop with the silly games, but have maximum chances of success.

[evcalyptos]

Thats my concern - she will be under their nose, and maybe its better to have a current i94.

She last entered the US 2 weeks ago, the last I94 was given in July/06, expired Jan/07. Like I said, we enter/leave all the time just with her Visa- I know this will change once we submit- but am I taking a bigger risk by submitting without a current I94?? We could get one, change the dates on our docs, and submit in a couple months when everything "looks" better. If they ask about the baby, I can say we were living in Mexico at the time, a 2 day stay at the hospital wouldnt be illegal. I live only 2 miles from the border, so its pretty easy for us to get back and forth.

So yes - I want to stop with the silly games, but have maximum chances of success.

Personally I think it is riskier to try to get a new I-94 than not. I'm not a lawyer, and you might benefit from meeting with one who can go over all of your documents and situation in private.

Once she applies to adjust status, and her I-485 is accepted, she is back in a 'protected' status and her expired I-94 doesn't matter as long as she stays in the US. The overstay is forgiven for the spouse of a US citizen, as long as she doesn't leave before her Green Card is issued.

Your proximity to the border doesn't create differnt rules for you, although I understand why you perceive it that way.

As far as not telling the truth about where she's been living, I'll just say what I usually do: Lying to immigration officers or on immigration applications/petitions always leads to a worse outcome than simply 'fessing up.

The only confict you are really facing now is international travel. If your wife will just stay put until she gets her Permanent Resident status, her case will likely be resolved without question. You really should see a lawyer or a Catholic Charities worker in person, in private.

[ImmigAttyLana]

The expired I-94 is ALL RIGHT for purposes of applying for her permanent residence on the basis of marriage to a US citizen. You cannot get a new I-94 because of the overstay but even if you could, it is not necessary. However, it is absolutely NOT all right for her to travel internationally until after her permanent residence status is approved. Do not even apply for the advance parole travel document because she will be issued the document if you apply for one but she will be BARRED from the US for a period of 3 or 10 years because of the overstay. If you are paying a lawyer to do this for you, I think you have either selected a very poor choice for a legal representative or you are not posting all that your attorney advised here. ANYONE with any kind of experience in immigration law would be able to tell you that your wife SHOULD NOT use an advance parole if she has been unlawfully present in the US for more than 180 days prior to the filing of the adjustment of status. You'll either go to the wedding in Canada on your own or you won't go. If you go to your wife, she will be in Canada for a lot longer than both of you may anticipate.

Don't go on with your arguments about legality v. reality. They are really silly and irrelevant. The reality you are talking about may be YOUR reality, but the legality is THE reality that your wife will be facing if she goes abroad before her permanent residence status is approved. I think that if you have not been so advised by your attorney, this is really bordering on malpractice, but then again, if you are only using a paralegal service and not an attorney who is duly licensed, then you are doing yourself a great disservice.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.