POE/K1 Visa Question - Canadian & Detroiter!!

[CutienPurg 0]

we hashed this topic out pretty heavily a few months back. the conclusion we came to( at least I did anyway) was that EA was required for work inside the US and not for employment in Canada. Who would the US penalize.....a Cndn company?

[neiks 19]

I posted a reply to you in your post in the K1 forum. Zyggy's got it all covered here for you.

[Doug n Amanda 0]

You both need to make a decision on what is more important... his job, or you being together earlier. If it's his job, then you have no choice but to scrap the K-1 and move into a K-3 or CR-1...

I've been helping out a friend of mine who is also a Canadian trucker and his USC fiancee on this .. in their case, his job was more important, so they got married and just got their interview date for the GC in Montreal. It was the only way he could keep on crossing the border every day to keep his livelyhood...

Thanks, Zyggy...I understand, and so does his employer at this point. The owner is willing to bring trailers to the US for my fiance' to Interstate, and will pick up the US loads back to Canada. Financial issue resolved, I believe. You've been most helpful, and we are glad to know there are other drivers/Canadian employed folks traveling back and forth as well. My fiance' was worried about losing his FAST card if we got married (didn't want to show deceipt on his intent to marry) so his attorney advised him to file K1 (we are no longer using the attorney)

Mo, thanks for the advice on the AP, and yes, it was for supporting his Dad thru surgery/recovery period. I do recall reading a post where someone rec'd emergency AP approval on the spot (post marriage of course)....have to do some more digging.

[Doug n Amanda 0]

K1 and his job are NOT going to work. I'm afraid that you're in a situation where the K1 visa is not for you due to the significant restrictions on travel that come with a K1. You should be cautioned that eventhough people have gotten away with entering the US without it being activated on the Canadian land border, you should know that it is technically not permitted and is essentially the CBP officer looking the other way... any CBP officer may close that route at any time so I would not rely on it if the freedom of travel is important to you which is appears that it is...

I am also a Detroiter and worked at both the bridge and the tunnel for many years as what is now a CBP officer...

I suggest that you look into getting married first and going for a K3 or the CR-1.

It's now September, and no Interview yet...BUT, another K1er close to me has been scheduled, which led me back to this discussion. I reposted the question about having to use the K1...actually, the question was what happens in the 6-10 days between the Interview and actually getting the Visa by post.....and had SEVERAL others tell me he DIDN'T have to use it?

One lady even mentions MTL told her this in her interview...course, there are several others who agree with you...here's the link: http://www.visajourney.com/forums/index.ph...=88254&st=0

Care to comment or send an update? Thanks!

[neiks 19]

I would probably say that the info Zyggy gave you was the "true letter of the law" and that the law is that once you receive your K1 visa it must be activated on your next entry into the US. Does that mean that every POE officer knows that or abides by that rule? Most defiantely not. You can get a thousand answers from people on here saying yes, you can travel mulitple times without activating it but that doesn't mean it's correct. The only way you are going to know for sure for your own benefit is to call the CBP yourself, ask for a senior immigration inspector and pose the question to them. When they give you they answer and if they do say, yes, it's ok to travel to the US and not activate the K1 then get their name, title, badge number, and notate the time and date and the port you called. Then when he does go through the border and if he has problems the say this is what we were told by so and so at this time. You should also be able to request to have them pull out their dusty cobweb encrusted immigration books and see the "law" or rule that regulates that decision. (At least in Canada we are required to produce the legislation for the traveller and I am assuming it would be similar for the US under freedom of information.)

[neiks 19]

I did some digging. Here is the the Immigration and Nationality Act. Note the section I Bolded.

Like any law its up to interpretation.

I'm sure a couple of lawyers could argue this back and forth in court for weeks. I'm not a lawyer and am not going to start debating it but I can definately see a CBP agent interpreting this as that once the visa is issued that it must be presented and surrendered at the port of entry.

INA: ACT 221 - ISSUANCE OF VISAS

Sec. 221. [8 U.S.C. 1201]

(a) (1) 1a/ Under the conditions hereinafter prescribed and subject to the limitations prescribed in this Act or regulations issued thereunder, a consular officer may issue (A) 1a/ to an immigrant who has made proper application therefor, an immigrant visa which shall consist of the application provided for in section 222, visaed by such consular officer, and shall specify the foreign state, if any, to which the immigrant is charged, the immigrant's particular status under such foreign state, the preference, immediate relative, or special immigrant classification to which the alien is charged, the date on which the validity of the visa shall expire, and such additional information a s may be required; and (B) 1a/ to a nonimmigrant who has made proper application therefor, a nonimmigrant visa, which shall specify the classification under section 101(a)(15) of the nonimmigrant, the period during which the nonimmigrant visa shall be valid, and such additional information as may be

required.

(2) 1a/ The Secretary of State shall provide to the Service an electronic version of the visa file of each alien who has been issued a visa to ensure that the data in that visa file is available to immigration inspectors at the United States ports of entry before the arrival of the alien at such a port of entry.

(B) Each alien who applies for a visa shall be registered in connection with his application, and shall furnish copies of his photograph signed by him for such use as may be by regulations required. The requirements of this subsection may be waived in the discretion of the Secretary of State in the case of any alien who is within that class of nonimmigrants enumerated in sections 101(a)(15)(A) , and 101(a)(15)(G) , or in the case of any alien who is granted a diplomatic visa on a diplomatic passport or on the equivalent thereof.

© An immigrant visa shall be valid for such period, not exceeding six months, 1/ as shall be by regulations prescribed, except that any visa issued to a child lawfully adopted by a United States citizen and spouse while such citizen is serving abroad in the United States Armed Forces, or is employed abroad by the United States Government, or is temporarily abroad on business, shall be valid until such time, for a period not to exceed three years, as the adoptive citizen parent returns to the United States in due course of his service, employment, or business. A nonimmigrant vis a shall be valid for such periods as shall be by regulations prescribed. In prescribing the period of validity of a nonimmigrant visa in the case of nationals of any foreign country who are eligible for such visas, the Secretary of State shall, insofar as practicable, accord to such nationals the same treatment upon a reciprocal basis as such foreign country accords to nationals of the United States who are within a similar class; except that in the case of aliens who are nationals of a foreign cou ntry and who either are granted refugee status and firmly resettled in another foreign country or are granted permanent residence and residing in another foreign country, the Secretary of State may prescribe the period of validity of such a visa based upon the treatment granted by that other foreign country to alien refugees and permanent residents, respectively, in the United States. 2/ An immigrant visa may be replaced under the original number during the fiscal year in which the original visa was issued for an immigrant who establishes to the satisfaction of the consular officer that he was unable to use the original immigrant visa during the period of its validity because of reasons beyond his control and for which he was not responsible: Provided, That the immigrant is found by the consular officer to be eligible for an immigrant visa and the immigrant pays again the statutory fees for an application and an immigrant visa.

(d) Prior to the issuance of an immigrant visa to any alien, the consular officer shall require such alien to submit to a physical and mental examination in accordance with such regulations as may be prescribed. Prior to the issuance of a nonimmigrant visa to any alien, the consular officer may require such alien to submit to a physical or mental examination, or both, if in his opinion such examination is necessary to ascertain whether such alien is eligible to receive a visa.

(e) Each immigrant shall surrender his immigrant visa to the immigration officer at the port of entry, who shall endorse on the visa the date and the port of arrival, the identity of the vessel or other means of transportation by which the immigrant arrived, and such other endorsements as may be by regulations required.

Each nonimmigrant shall present or surrender to the immigration officer at the port of entry such documents as may be by regulation required. In the case of an alien crewman not in possession of any individual documents other than a passport and until such time as it becomes practicable to issue individual documents, such alien crewman may be admitted, subject to the provisions of this title, if his name appears in the crew list of the vessel or aircraft on which he arrives and the crew list is visaed by a consular officer, but the consular officer shall have the right to deny admission to any alien crewman from the crew list visa.

(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4) , if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15) (B) or , if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a) , or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States.

(h) Nothing in this Act shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this Act, or any other provision of law. The substance of this subsection shall appear upon every visa application.

(i) After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 273(B) for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien's embarkation. 3/ There shall be no means of judicial review (including review pursuant to section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B) .

Sorry, not sure how the smiley faces or roses got in there. Must be something when I copied the text.

http://www.uscis.gov/propub/ProPubVAP.jsp?...fb0686648558dbe

Edited September 20, 2007 by neiks

[Doug n Amanda 0]

I did some digging. Here is the the Immigration and Nationality Act. Note the section I Bolded.

Like any law its up to interpretation.

I'm sure a couple of lawyers could argue this back and forth in court for weeks. I'm not a lawyer and am not going to start debating it but I can definately see a CBP agent interpreting this as that once the visa is issued that it must be presented and surrendered at the port of entry.

Wow...thanks for the digging, AND the nap I took reading the legislation Definately calling the CBP.....

[Doug n Amanda 0]

I did some digging. Here is the the Immigration and Nationality Act. Note the section I Bolded.

Like any law its up to interpretation.

I'm sure a couple of lawyers could argue this back and forth in court for weeks. I'm not a lawyer and am not going to start debating it but I can definately see a CBP agent interpreting this as that once the visa is issued that it must be presented and surrendered at the port of entry.

Wow...thanks for the digging, AND the nap I took reading the legislation Definately calling the CBP.....

Ok, so I did some calling, and confimed it's all in who you talk to!:

Ambassador Bridge: Officer Pelk informed me Doug can cross under the "visitor's visa" status until he physically gets his K1 Visa....and even after that, he doesn't have to activate the K-1 until he's ready to move; also said they do NOT do the EAD stamp there. Would NOT give his badge # over the phone.

Detroit/Windsor Tunnel: After calling around to get the RIGHT phone # for the tunnel office (# on CPB website disconnected w/no further info....YEP, FIGURES), Officer Miller told me the same about waiting for the K1; Doug can cross under "visitor visa"...."just tell him not to bring any stuff with him". He also told me Doug HAS to activate his K1 on his next trip over after receiving it...again, no EAD stamp.

It's a ####### shoot!!! My US tax dollars at work, sigh.....

[Jeremy + Kristy 0]

Figures. The part that neiks bolded also stated "immigrant" visas, and remember, technically, K-1s are "non-immigrant."

Once Doug does move over, he's continuing to work for his Canadian employer? Someone's going to drive the load across the border and then he'll take it the rest of the way?

So, even if he does have to activate it as soon as he has his passport back, it's not a big deal? You were just concerned about the week or so he'll be without a passport and visa?

[zyggy 9]

The trick is in the special status that Canadians have.. by Jay's treaty,Canadian citizens do not need a visa to enter the US for up to 6 months and vice versa. This is what makes it different that VWP. With VWP, the US has chosen to allow certain nationals into the US without the need to apply for a visa to be able to visit the US. In essence, they apply for their visa at entry (no pre-approval or screening). In this way, Canadian Citizens are very special. They have a right that no one else in the world has. CBP can revoke VWP for anyone since it is a privilege that CBP extends. They can't revoke entry without visa for Canadians since they have the right to enter without visa by treaty.

If a Canadian Citizen is entering the US for any other purpose than to visit, a visa is required.

When you get a K1 visa, you have put the US Government on notice of your intention. The question is of intent... once you get the K1, you have a visa that says "I 'm going to live in the US". That no longer makes you a visitor with strong ties to Canada.

Edited September 20, 2007 by zyggy

[Doug n Amanda 0]

The trick is in the special status that Canadians have.. by Jay's treaty,Canadian citizens do not need a visa to enter the US for up to 6 months and vice versa. This is what makes it different that VWP. With VWP, the US has chosen to allow certain nationals into the US without the need to apply for a visa to be able to visit the US. In essence, they apply for their visa at entry (no pre-approval or screening). In this way, Canadian Citizens are very special. They have a right that no one else in the world has. CBP can revoke VWP for anyone since it is a privilege that CBP extends. They can't revoke entry without visa for Canadians since they have the right to enter without visa by treaty.

If a Canadian Citizen is entering the US for any other purpose than to visit, a visa is required.

When you get a K1 visa, you have put the US Government on notice of your intention. The question is of intent... once you get the K1, you have a visa that says "I 'm going to live in the US". That no longer makes you a visitor with strong ties to Canada.

Makes perfect sense; thanks Zyggy.....Doug always has, and always will, live by the letter of the law, which is one of the reasons I've agreed to be his wife. We are making plans to be ready to move him lock, stock and barrel, on his next entry into the U.S. after receiving the Visa and his passport back from Montreal.

Thanks for the clarification!

[Krikit 1,164]

Sorry, not sure how the smiley faces or roses got in there. Must be something when I copied the text.

I figured out how the smileys got in there, Neiks. The text has character combinations which match shortcuts for smilies. For example, if you combine the following characters (without the spaces) you get:

b + ) = B)

( f + ) =

Just thought I'd share. Thanks for posting the legislation. I found it interesting.