Please advise return to Canada before filing I-130

[barbsdesk 0]

This site is phenomenal - but having trouble finding specifics with all this info. Perhaps someone will kindly advise or tell me where to look? I have their permission to inquire om these matters - not being a nosey mom-in-law.

19 year old USC daughter married her 19year old Canadian citizen boyfriend while he was here in US visiting on a passport in early December 2009. He did not come with intention to marry. They met in school in 2008. We seek advice on how best to now proceed.

We know we can file the I-130 (right?) and wait for papers. Meantime he can not work in US. Would it be a better route for for the two of them to return to his home in Canada, where he can work immediately - and probably she can as well (family business). And if they did this, would it then be better to file with the consulate in Canada?

Hope I don't sound too ignorant. Thanks

[canadian_wife 1,823]

Was your son-in-law a tourist in the US when they got married? When did he enter the US and when did they get married? Was it quickly after he entered?

Your daughter cannot just simply work in Canada without proper authorization, regardless if it is a family business. Does she have authorization to work in Canada?

It depends on what is important to your daughter and son-in-law. If working and buliding a financial future together is the most important, then they should both find themselves the route that will make this happen. If being together quickly, then perhaps adjusting status is best (noting it will be on them to prove he did not have intentions to immigrate when he entered the US - if he married quickly upon entering the US then this will be difficult).

Perhaps your daughter should post on here to get support and guidance.

Good luck

[barbsdesk 0]

Was your son-in-law a tourist in the US when they got married? When did he enter the US and when did they get married? Was it quickly after he entered?

Your daughter cannot just simply work in Canada without proper authorization, regardless if it is a family business. Does she have authorization to work in Canada?

It depends on what is important to your daughter and son-in-law. If working and buliding a financial future together is the most important, then they should both find themselves the route that will make this happen. If being together quickly, then perhaps adjusting status is best (noting it will be on them to prove he did not have intentions to immigrate when he entered the US - if he married quickly upon entering the US then this will be difficult).

Perhaps your daughter should post on here to get support and guidance.

Good luck

Thank you for your response. As for my posting instead of daughter, our household (they live with us at present) has divided up specific tasks to accomplish in this endeavor, and mine is researching what others have done in similar situations.

To answer your question:

Was your son-in-law a tourist in the US when they got married? When did he enter the US and when did they get married? Was it quickly after he entered?

He entered with passport with purpose to visit my daughter. They married (small ceremony in out home)about 60 days after he entered. They would have eloped but for lack of funds. No intent to marry on arrival.

Their ultimate goal is to work/live together in NYC, where they met and where they have the greatest prospects for future employment. They wish to pursue the path that will accomplish this most quickly yet allow them to stay together throughout and if at all possible, work in the interim.

Thank you.

[canadian_wife 1,823]

Having your daughter post was simply a suggestion to offer her support as she is the one going through this. It was not a slight against your involvement in the process.

If asked, what proof does your son-in-law have that he did not intend to immigrate to the US when he entered as a tourist? As in what ties did he have to Canada that he has since abandoned in order to move to the US with your daughter?

If he cannot offer any proof to his intentions, the I suggest he returns to Canada. It is better to be over prepared for this process than under prepared.

Good luck.

[Kathryn41 3,205]

Your son-in-law is allowed to remain in the US and apply to adjust status from non-immigrant visitor to permanent resident. While entering the US with the intention of marrying and staying in the US is illegal (visa fraud), entering the US then changing your mind due to changing circumstances so that you marry and now wish to remain in the US with your spouse is legal. What is important is the 'intent' upon entry.

Your daughter will file the I-130 petition to petition for a family member. There are a number of attachments that are required to be submitted with this form so pay careful attention to the instructions and to the form itself to make sure you get everything. This advice applies to all USCIS forms, btw - read over the forms and read over the instructions very carefully. The fee for the I-130 is $355.

Concurrently, your son-in-law will file an application to Adjust Status - also known as an AOS - with form I-485. Along with this form he is going to need to provide additional information. He needs to have an Immigration medical done by an authorized panel physician (a list of authorized physicians in each area is available at the USCIS website: http://www.uscis.gov ). He needs to have proof of his childhood vaccinations and may have to get additional vaccinations. Your daughter will have to provide an Affidavit of Support - I-864. Since she is so young it is unlikely she qualifies financially to sponsor her husband (needs to have an annual income at least 125% of the poverty level and provide proof) so she will need a co-sponsor. The co-sponsor has to provide the same documents as the sponsor and must make at least 125% of the poverty level for the size of their household (eg 4 people at home, then 4 + 1 = 5 people). Previous years tax returns, bank statements, etc. need to accompany this form. The fee for the I-485 is $1010. It can take anywhere from a few months to a few years for this form to be approved with most of them taking a little less than a year. He will get a green card good for 2 years when he is approved. If the application is denied, however, filing for AOS from a visitor status does not allow for an appeal. They would then have to restart the immigration process all over again with a CR-1 and him back in Canada. Don't worry too much about this - if they have sufficient documents and the marriage is valid they are likely to be approved without difficulties. You just need to be aware of this restriction.

Along with the I-485, your son in law should file for an I-131 (Travel document - this will give him permission to leave and return to the US while waiting for a decision on his green card. If he leaves the US without it then the whole immigration process has to start all over again from the beginning for a CR-1 application). This is also known as Advance Parole - AP. There is no additional fee - it is included in the AOS fee.

As well, your son in law should file an I-765 application for Employment Authorization. This fee is also included in with the AOS fee. The EAD will allow him to accept employment in the US and will also provide evidence of his legal status in the US. He will be able to use it to get a SSN and a Driver's License (although the Driver License requirements vary by state). The EAD and AP generally are issued within 3 months.

As part of the AOS process your son in law and daughter will almost definitely be interviewed at your local USCIS office to verify that this is a valid marriage and not one for the purposes of getting a green card. Your son-in-law will be required to have biometrics - fingerprints and photograph - taken at various stages of the process.

All forms need to be submitted together in the same envelope each with their separate, necessary fees and separate attachments. Treat each application as a separate attachment as they will be broken apart and processed in different locations so need to be complete in themselves. Checks are fine. Upon receipt of each form your daughter/son in law will receive an acknowledgment called an NOA (Notice of Action). Your son-in law will later receive Biometrics appointment letters for the applications requiring fingerprints and photographs. USCIS will set an appointment time and date for him at the local USCIS office. They might also receive an RFE - Request for Evidence - if there is anything missing. They will be given a deadline about when the missing information/document needs to be returned. All processing will stop until the missing information is returned.

This is the basic overview of what you can expect for the immigration process. One additional point to keep in mind. To combat marriage fraud, all marriages that are less than 2 years old when the green card is approved only receive a green card good for 2 years. Shortly before that 2 year card expires, your son in law and daughter need to submit another form I-751 - Application to Remove Conditions on Permanent Residency". This form will require all sorts of evidence showing how the two of them have co-mingled their personal, financial and social lives. If this application is approved, your son-in-law will obtain unconditional permanent residency and get a green card good for 10 years. If the application is not approve or if they miss the filing date then his status in the US expires and he would be told to leave the US.

After 3 years as a permanent resident, your son in law is allowed to apply for US citizenship as long as he and your daughter are still married and living together.

So, you have a lot of reading ahead of you. Make lists of the various forms required. Then under each form make lists of what documents and evidence you need. This can act as a check list for you to make sure you have everything requested. Your son in law is not able to leave the US right now so he will have to have family in Canada send him the documents he needs from home and tie up his loose ends (ie. terminate apartment lease, pay final utility bills, move belongings, etc.).

If your son in law must return to Canada then you need to read up on the CR-1 process. He cannot live in the US during that time nor can your daughter live with him in Canada. They should be able to visit back and forth as long as they can prove to the border guards each and every time that they have strong ties that will ensure their return to their home countries. When the CR-1 process is completed - about a year - your son-in-law will be allowed to move to the US and will get his green card when he officially crosses the border.

Edited January 2, 2010 by Kathryn41

[barbsdesk 0]

Your son-in-law is allowed to remain in the US and apply to adjust status from non-immigrant visitor to permanent resident. While entering the US with the intention of marrying and staying in the US is illegal (visa fraud), entering the US then changing your mind due to changing circumstances so that you marry and now wish to remain in the US with your spouse is legal. What is important is the 'intent' upon entry.

Your daughter will file the I-130 petition to petition for a family member. There are a number of attachments that are required to be submitted with this form so pay careful attention to the instructions and to the form itself to make sure you get everything. This advice applies to all USCIS forms, btw - read over the forms and read over the instructions very carefully. The fee for the I-130 is $355.

Concurrently, your son-in-law will file an application to Adjust Status - also known as an AOS - with form I-485. Along with this form he is going to need to provide additional information. He needs to have an Immigration medical done by an authorized panel physician (a list of authorized physicians in each area is available at the USCIS website: http://www.uscis.gov ). He needs to have proof of his childhood vaccinations and may have to get additional vaccinations. Your daughter will have to provide an Affidavit of Support - I-864. Since she is so young it is unlikely she qualifies financially to sponsor her husband (needs to have an annual income at least 125% of the poverty level and provide proof) so she will need a co-sponsor. The co-sponsor has to provide the same documents as the sponsor and must make at least 125% of the poverty level for the size of their household (eg 4 people at home, then 4 + 1 = 5 people). Previous years tax returns, bank statements, etc. need to accompany this form. The fee for the I-485 is $1010. It can take anywhere from a few months to a few years for this form to be approved with most of them taking a little less than a year. He will get a green card good for 2 years when he is approved. If the application is denied, however, filing for AOS from a visitor status does not allow for an appeal. They would then have to restart the immigration process all over again with a CR-1 and him back in Canada. Don't worry too much about this - if they have sufficient documents and the marriage is valid they are likely to be approved without difficulties. You just need to be aware of this restriction.

Along with the I-485, your son in law should file for an I-131 (Travel document - this will give him permission to leave and return to the US while waiting for a decision on his green card. If he leaves the US without it then the whole immigration process has to start all over again from the beginning for a CR-1 application). This is also known as Advance Parole - AP. There is no additional fee - it is included in the AOS fee.

As well, your son in law should file an I-765 application for Employment Authorization. This fee is also included in with the AOS fee. The EAD will allow him to accept employment in the US and will also provide evidence of his legal status in the US. He will be able to use it to get a SSN and a Driver's License (although the Driver License requirements vary by state). The EAD and AP generally are issued within 3 months.

As part of the AOS process your son in law and daughter will almost definitely be interviewed at your local USCIS office to verify that this is a valid marriage and not one for the purposes of getting a green card. Your son-in-law will be required to have biometrics - fingerprints and photograph - taken at various stages of the process.

All forms need to be submitted together in the same envelope each with their separate, necessary fees and separate attachments. Treat each application as a separate attachment as they will be broken apart and processed in different locations so need to be complete in themselves. Checks are fine. Upon receipt of each form your daughter/son in law will receive an acknowledgment called an NOA (Notice of Action). Your son-in law will later receive Biometrics appointment letters for the applications requiring fingerprints and photographs. USCIS will set an appointment time and date for him at the local USCIS office. They might also receive an RFE - Request for Evidence - if there is anything missing. They will be given a deadline about when the missing information/document needs to be returned. All processing will stop until the missing information is returned.

This is the basic overview of what you can expect for the immigration process. One additional point to keep in mind. To combat marriage fraud, all marriages that are less than 2 years old when the green card is approved only receive a green card good for 2 years. Shortly before that 2 year card expires, your son in law and daughter need to submit another form I-751 - Application to Remove Conditions on Permanent Residency". This form will require all sorts of evidence showing how the two of them have co-mingled their personal, financial and social lives. If this application is approved, your son-in-law will obtain unconditional permanent residency and get a green card good for 10 years. If the application is not approve or if they miss the filing date then his status in the US expires and he would be told to leave the US.

After 3 years as a permanent resident, your son in law is allowed to apply for US citizenship as long as he and your daughter are still married and living together.

So, you have a lot of reading ahead of you. Make lists of the various forms required. Then under each form make lists of what documents and evidence you need. This can act as a check list for you to make sure you have everything requested. Your son in law is not able to leave the US right now so he will have to have family in Canada send him the documents he needs from home and tie up his loose ends (ie. terminate apartment lease, pay final utility bills, move belongings, etc.).

If your son in law must return to Canada then you need to read up on the CR-1 process. He cannot live in the US during that time nor can your daughter live with him in Canada. They should be able to visit back and forth as long as they can prove to the border guards each and every time that they have strong ties that will ensure their return to their home countries. When the CR-1 process is completed - about a year - your son-in-law will be allowed to move to the US and will get his green card when he officially crosses the border.

Wow Kathryn41 you have provided exactly what we were looking for! I can read forms as well as anyone - but having it said in a conversational tone makes a huge difference. Thank you so much.

As for my son-in-laws intent when he came here. he came as a 19 year old who missed his girlfriend terribly - she had been to visit him and his family two times, and he needed to reciprocate so she would know he felt just as strongly about her. And as he came with only a small backpack - not even his computer - he had no intent to stay. But these things happen. Love happens. And oh to be so young and so in love!

So it seems the thing to do is to sit tight and start the paperwork from the US! I will be back here I am sure. Thanks again for your assist.

[trailmix 77]

Hi,

They have a few options, which one they chose will depend upon their own circumstances and goals, as Canadianwife mentioned.

- Adjustment of Status

He could stay in the U.S. (he cannot leave until he has his green card or advance parole to leave). He cannot work until he has his greencard or his Employment Authorization Document. As canadianwife mentioned, the most important thing here is him being able to prove that he had no intention to immigrate when he crossed the border in to the U.S.

- CR1 Visa

He can return to Canada and your Daughter can file for a CR1 visa. This takes around a year right now. If your Daughter accompanies him there, as mentioned, she will not be able to work until she has some sort of work status. One thing they can do is enter Canada, declaring at the border that she is immigrating to do an inbound Canadian PR application. At that point she still won't be able to work there, but she can stay. He could then apply for her Canadian PR - which also takes around a year.

The problem with plan B is that U.S. immigration tends to frown on U.S. citizens obtaining Canadian PR while also applying for their spouse to immigrate to the U.S. - because the U.S. citizen must prove that they intend to reestablish domicile in the U.S. - but that's a long way down the road - but still must be taken in to consideration when planning this type of move.

Edited January 2, 2010 by trailmix

[antda 13]

Read here too, for more replies...

Help for Fellow Canadian VJer Barbsdesk...., Can you help here too?...Thanks!....

http://www.visajourney.com/forums/index.ph...p;#entry3602649

Hope this helps too.

Ant