Qualifying to file an I-130

[CitizenUS 0]

When you go to the guides here at Visajourney and look at what a married couple residing in the us must do to attain permanent residency for one spouse, you get this warning:

"You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously."

None of the above is relevant to a Canadian (doesn't need a tourist visa) husband of a US citizen.

My fiance (Canada) and I (US) were just told by an immigration attorney to get married in the US and immediately file a I-130, I-485, I-765 and the I-864. He will get a temporary work permit within 90 days and in 4-6 months, permanent residency.

Our interview would be in the US in my state. The attorney also said if we tell the truth about how long we've known each other (almost 2 years) and how even though he came here as a visitor, we couldn't wait any longer and got married. That Canada was a special case because the border is loose and a tourist or visitor visa is not required for a Canadian to enter the US.

Has anyone ever heard of this? What about the warning "qualify to file for an I-130 in the US"?

Please tell me what you know about this subject.

[payxibka 10,045]

Have we heard of this? Multiple members just about everyday post up with similar circumstances....

[pushbrk 12,898]

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously."

None of the above is relevant to a Canadian (doesn't need a tourist visa) husband of a US citizen.

My fiance (Canada) and I (US) were just told by an immigration attorney to get married in the US and immediately file a I-130, I-485, I-765 and the I-864. He will get a temporary work permit within 90 days and in 4-6 months, permanent residency.

If your attorney advised you to do this, hopefully he understood your fiance was already in the US and prepared to stay until the status adjustment process was complete. Under those circumstances your plan will work. If your fiance leaves the US and then enters again with the intention to immigrate, that's visa fraud. So, whether this will work depends on specific circumstances. I suggest you read the guide again substituting "Canadian Visitor Privilege" for "tourist visa" etc.

[CitizenUS 0]

"If your attorney advised you to do this, hopefully he understood your fiance was already in the US and prepared to stay until the status adjustment process was complete. Under those circumstances your plan will work. If your fiance leaves the US and then enters again with the intention to immigrate, that's visa fraud. So, whether this will work depends on specific circumstances. I suggest you read the guide again substituting "Canadian Visitor Privilege" for "tourist visa" etc."

Yes my fiance is in the US and has been as a visitor since the beginning of the year. (He's currently laid off from his seasonal job).

So you are saying then, because of this we "qualify"? That it's a certain amount of "time in the country" that makes one "qualify"?

What do you know about "qualifying"? How does one "qualify"?

What if he leaves for a week to do his taxes and comes back? Does that ruin the situation?

[payxibka 10,045]

"If your attorney advised you to do this, hopefully he understood your fiance was already in the US and prepared to stay until the status adjustment process was complete. Under those circumstances your plan will work. If your fiance leaves the US and then enters again with the intention to immigrate, that's visa fraud. So, whether this will work depends on specific circumstances. I suggest you read the guide again substituting "Canadian Visitor Privilege" for "tourist visa" etc."

Yes my fiance is in the US and has been as a visitor since the beginning of the year. (He's currently laid off from his seasonal job).

So you are saying then, because of this we "qualify"? That it's a certain amount of "time in the country" that makes one "qualify"?

What do you know about "qualifying"? How does one "qualify"?

What if he leaves for a week to do his taxes and comes back? Does that ruin the situation?

Most people will define "qualify" as the intent upon most recent entry... If they entered with intent to return but circumstances changed then he should "qualify'

There is no magic # of days to "qualify"... If you intended to stay when you entered, it does not matter if it is 30 days or one year later...

Leaving & returning would ruin the "lack of intent" arguement because, on the latest or most recent entry, he would be entering as a visitor with full "intent" to immigrate and thus circumventing US immigration law.

moving to AOS forum as it appears to be the most appropriate forum to host this discussion

Edited February 5, 2009 by payxibka

[pushbrk 12,898]

"If your attorney advised you to do this, hopefully he understood your fiance was already in the US and prepared to stay until the status adjustment process was complete. Under those circumstances your plan will work. If your fiance leaves the US and then enters again with the intention to immigrate, that's visa fraud. So, whether this will work depends on specific circumstances. I suggest you read the guide again substituting "Canadian Visitor Privilege" for "tourist visa" etc."

Yes my fiance is in the US and has been as a visitor since the beginning of the year. (He's currently laid off from his seasonal job).

So you are saying then, because of this we "qualify"? That it's a certain amount of "time in the country" that makes one "qualify"?

What do you know about "qualifying"? How does one "qualify"?

What if he leaves for a week to do his taxes and comes back? Does that ruin the situation?

Most people will define "qualify" as the intent upon most recent entry... If they entered with intent to return but circumstances changed then he should "qualify'

There is no magic # of days to "qualify"... If you intended to stay when you entered, it does not matter if it is 30 days or one year later...

Leaving & returning would ruin the "lack of intent" arguement because, on the latest or most recent entry, he would be entering as a visitor with full "intent" to immigrate and thus circumventing US immigration law.

moving to AOS forum as it appears to be the most appropriate forum to host this discussion

Right, if when he last entered, his intent was to visit, not marry and stay, you qualify. If the intent was to marry and stay, you don't. If he leaves, then clearly on his next entry, you wouldn't qualify.