What to do...Im ust starting out...may be in trouble.

[Krikit 1,165]

Canadians can stay up to six months in the US and, like Malrothien says, they do not require a visa. Weezy, do NOT let her leave the US prior to her adjusting status and receiving a greencard. Overstays of 180 days or more automatically incur a 3 year bar. Overstays of one year or more incur a 10 year bar. File to adjust status immediately.

I am moving this thread from the IR-1/CR-1 forum to AOS From Other Visas. You will find a wealth of information there. Good luck.

[Kathryn41 3,205]

As Krikit says, your wife is allowed to adjust her status from non-immigrant to immigrant while in the US as long as she legally entered the country (which she did - you passed through a border guard station) Oops - edited to correct - I just saw you had been married 3 years, not 3 weeks. This adds important information. Did you mention you were married when you last crossed the border? or did you say you were boyfriend/girlfriend at the time? If you said boyfriend/girlfriend then you lied to immigration officials and that is a serious problem.

It is vital that she does not leave the US before she gets her green card, though, so your plans on going to Canada in October will need to be changed. If she left the country without the green card she would not be allowed back in without a proper visa (CR-1 or a K-3 which are processed outside of the country and take about a year with the two of you apart), and she will definitely incur both a ten year ban (living in the US illegally for more than 1 year) which would require a waiver, and would probably require another waiver - if one is allowed - for the misinformation at the border.

When your AOS application has been accepted, your wife will again have status in the US as an "AOS applicant" . When the green card is approved her length of time out of status will be forgiven. She can't leave the US, however, until she has legal status to live in the US or she will not be allowed back in. As well, if she leaves the country while her AOS is being processed, USCIS considers that the same as abandoning the process and you would have to start all over again from the beginning with her outside of the US. You need to know that there is a good chance her AOS will be denied due to your misrepresentation at the border. Whether USCIS will allow you to file a waiver for that or not, I don't know.

You should read over what documents she needs to provide for her green card as some will require someone in Canada sending them to her (ie. medical records showing her vaccination history, long form birth certificate, etc.) and she will need to obtain a Canada wide fingerprint police record as she cannot apply in person in Canada which is the only way you can get a name check police record. The fingerprint records take a while to arrive so you may want to get that started asap.

Due to the misrepresentation at the border, I would definitely get a lawyer involved. This is not a simple adjustment of status situation. Lying in order to obtain immigration benefits - being allowed to enter the US when if the true situation was known she would probably have been denied - is a serious offense to USCIS. You need expert advice.

Good luck, and welcome to VJ.

(edited to correct information)

Edited August 30, 2009 by Kathryn41

[reeses16 8]

I just wanted to add to Kathryn's advice. I wanted to emphasize that you and your family should not go to Canada in October. You may read about Advanced Parole (AP), which allows people who submitted their AOS, but have not received their green card to re-enter the US. Given your situation, do not even bother applying for AP. It is possible that AP would be issued, but the moment she presented it at the border to re-enter the US, she would incur a ban, further complicating the situation.

You wife should not leave the US until she has a green card.

[Starburst 4]

As Krikit says, your wife is allowed to adjust her status from non-immigrant to immigrant while in the US as long as she legally entered the country (which she did - you passed through a border guard station) Oops - edited to correct - I just saw you had been married 3 years, not 3 weeks. This adds important information. Did you mention you were married when you last crossed the border? or did you say you were boyfriend/girlfriend at the time? If you said boyfriend/girlfriend then you lied to immigration officials and that is a serious problem.

It is vital that she does not leave the US before she gets her green card, though, so your plans on going to Canada in October will need to be changed. If she left the country without the green card she would not be allowed back in without a proper visa (CR-1 or a K-3 which are processed outside of the country and take about a year with the two of you apart), and she will definitely incur both a ten year ban (living in the US illegally for more than 1 year) which would require a waiver, and would probably require another waiver - if one is allowed - for the misinformation at the border.

When your AOS application has been accepted, your wife will again have status in the US as an "AOS applicant" . When the green card is approved her length of time out of status will be forgiven. She can't leave the US, however, until she has legal status to live in the US or she will not be allowed back in. As well, if she leaves the country while her AOS is being processed, USCIS considers that the same as abandoning the process and you would have to start all over again from the beginning with her outside of the US. You need to know that there is a good chance her AOS will be denied due to your misrepresentation at the border. Whether USCIS will allow you to file a waiver for that or not, I don't know.

You should read over what documents she needs to provide for her green card as some will require someone in Canada sending them to her (ie. medical records showing her vaccination history, long form birth certificate, etc.) and she will need to obtain a Canada wide fingerprint police record as she cannot apply in person in Canada which is the only way you can get a name check police record. The fingerprint records take a while to arrive so you may want to get that started asap.

Due to the misrepresentation at the border, I would definitely get a lawyer involved. This is not a simple adjustment of status situation. Lying in order to obtain immigration benefits - being allowed to enter the US when if the true situation was known she would probably have been denied - is a serious offense to USCIS. You need expert advice.

Good luck, and welcome to VJ.

(edited to correct information)

This.

Do NOT leave the country until you have adjusted.

I don't know much about the misrepresentation part, but the overstay will be forgiven once the AOS is approved.

Edited August 30, 2009 by Starburst

[Boiler 45,912]

There is a view that Canadians enter on a D/S basis, same as F1 students.

Best avoided anyway, just adjust but do have a consultation with a competent Immigration Lawyer first.

[Kathryn41 3,205]

Canadians do not enter on a Duration of Stay. Canadians are allowed a visit of a maximum 6 months at a time, the duration to be determined at the border by the border guard. If there is no other length of time stated, then it is 6 months maximum. Canadians are also expected to spend as much time or more outside of the US as they are inside of the US so for each 6 months inside of the US they are supposed to have 6 months outside of the US. If you are in the US for 3 months, then you are expected to be outside of the US for 3 months before your next visit. That is the expectation although it is not always the reality.

[Boiler 45,912]

I do not have a link to hand, but she may not have a ban if they decide to go through the Canadian Consulate. It has been argued succesfully before, a quirk. Either way, Lawyer time.

[Kathryn41 3,205]

The ban isn't the real issue here - the overstay will be forgiven if she adjusts status successfully. The reason to lawyer up is the misrepresentation at the border - saying they were boyfriend/girlfriend when they were actually married.

[Boiler 45,912]

The ban isn't the real issue here - the overstay will be forgiven if she adjusts status successfully. The reason to lawyer up is the misrepresentation at the border - saying they were boyfriend/girlfriend when they were actually married.

They have 2 options, one with risks one with out. The former requires legal advice, often not all the story gets told here. I was addressing the ban issue if they chose Canada

I am not even sure it is misrep, but we do not know what else was said and what was recorded. Not always the same thing.

[mamaSue 38]

I'm not sure about the misrepresentaion at the border.....

If they came through separate channels... would the border guard even ask about their relationship??

[weezy28 0]

Wow guys.....Thanks for the advice, and please keep it coming! I really appreciate all of the input. When last crossing the border my wife was pregnant and we were actually detained for a short period and questioned about the status of our relationship. Since we had stated we were bf/gf we continued with that story. Probably not the smartest thing but she was 6+ months pregnant and we needed to be together at that point. I will be contacting a lawyer this week and hope to get the AOS started asap. Sorry for being a little vague in some of the details but I had, and in some cases still do, have some skepticism about this forum. But thanks to you guys I am able to open up and feel better about this. Keep the advice coming and thanks again.

[Kathryn41 3,205]

"I am already married to a woman from Canada.....it will be three years in September. We now have a 9 1/2 month old child together who was born here in the U.S . . . She has been staying with me since before we were married here"

and

"

We always said we were boyfriend/girlfriend when crossing the border. We havent crossed since having our son last November."

and

She didnt enter on a visa..just used a passport.

It sounds like they were asked about their relationship and they replied that they were boyfriend and girlfriend - not once but several times. They were married at the time. Why did they not say they were married? Was it that they were worried she wouldn't be allowed to enter the US? What other reason would they have for lying about their relationship status to the border authorities?

Would she have been allowed to enter if she had said she was married to an American and travelling with him back to the States? She would probably have been asked to prove her legal status to live in the US or to provide proof of her ties to Canada, neither of which she had.

So, basically, this is misrepresenting a material fact in order to gain an immigration benefit. This is where the problem lies. They will be asked to provide a copy of their marriage license showing their date of marriage. They will also be asked to provide her date of last entry to the US. Since she did use her passport there may well be a record on file. Immigration will definitely ask about what she said when she last entered. If she 'lies' about it at the interview and says 'married' and they have records of her saying not married she will be found out in a lie. If she says she said they were just boyfriend/girlfriend then they will be found out in the lie to the border authorities.

It is definitely time to seek legal advice - and don't leave the country.

Edited August 31, 2009 by Kathryn41

[Boiler 45,912]

Begs the question whether you are likely to get more hassle being married or not. I am not sure that is the case.

In this case of course they were questioned, and that would have been recorded. The attorney may well be advised to find out what was recorded.

[weezy28 0]

"I am already married to a woman from Canada.....it will be three years in September. We now have a 9 1/2 month old child together who was born here in the U.S . . . She has been staying with me since before we were married here"

and

"

We always said we were boyfriend/girlfriend when crossing the border. We havent crossed since having our son last November."

and

She didnt enter on a visa..just used a passport.

It sounds like they were asked about their relationship and they replied that they were boyfriend and girlfriend - not once but several times. They were married at the time. Why did they not say they were married? Was it that they were worried she wouldn't be allowed to enter the US? What other reason would they have for lying about their relationship status to the border authorities?

Would she have been allowed to enter if she had said she was married to an American and travelling with him back to the States? She would probably have been asked to prove her legal status to live in the US or to provide proof of her ties to Canada, neither of which she had.

So, basically, this is misrepresenting a material fact in order to gain an immigration benefit. This is where the problem lies. They will be asked to provide a copy of their marriage license showing their date of marriage. They will also be asked to provide her date of last entry to the US. Since she did use her passport there may well be a record on file. Immigration will definitely ask about what she said when she last entered. If she 'lies' about it at the interview and says 'married' and they have records of her saying not married she will be found out in a lie. If she says she said they were just boyfriend/girlfriend then they will be found out in the lie to the border authorities.

It is definitely time to seek legal advice - and don't leave the country.

We did lie because of fear about not being allowed back in and we were asked when we were planning on getting married to which we replied that we didnt know. I agree that there definately was a misrepresentation and that is why I am fearful for what may happen. Keep the input coming Thanks