Do I even need a K1 as a Canadian?

[Kez/JWolf 6]

As the wife of a USC it is unlikely you would get a B2 as you would be deemed to have immigrant intent.....

Maybe you should go and speak to an immigration lawyer....

Kezzie

[Dr_LHA 3]

While all that in mind, while AOS would effectively nullify my existing B2, wouldn't I receive another one if I were to leave and then come back to visit my husband?

Actually its more the fact that by leaving the US without AP while filing for AOS, you give up the AOS. So although you may get another B2, you're initial filing would have been abandoned. Also you may be refused entry under B2 because you're intending on remaining in the USA.

Edited August 3, 2006 by dr_lha

[Kez/JWolf 6]

Do you think there would be 100's of canadians applying for K1 & K3 visa's if it was as easy as you think it is.....

I think not...

Kezzie

[am1996 0]

That's the thing... they won't let you in as a B2... you have too much immigrant intent as the spouse of a USC who hasn't lived in Canada for about 6 months and has no ties back to Canada. Sorry.. but what you want just isn't possible. If you want the Carribean, fly to the USVI's or Puerto Rico. Those are the only two destinations you can go to.

Actually, I have plenty of ties to Canada -- my whole immediate family is in Canada, I have a Canadian driver's license, a Canadian license plate on my car (I never established residency in the US since I always fly in and out to visit my now fiance, so I am not required to register it here), a Canadian bank account, etc... If I could also show them a plane ticket back to Canada within 6 months from my entry date (I do actually intend to return to Canada and to celebrate my birthday there, which will be within 6 months from our intended wedding date), would that solidify my case that I had no immigrant intent?

[Dr_LHA 3]

That's the thing... they won't let you in as a B2... you have too much immigrant intent as the spouse of a USC who hasn't lived in Canada for about 6 months and has no ties back to Canada. Sorry.. but what you want just isn't possible. If you want the Carribean, fly to the USVI's or Puerto Rico. Those are the only two destinations you can go to.

Actually, I have plenty of ties to Canada -- my whole immediate family is in Canada, I have a Canadian driver's license, a Canadian license plate on my car (I never established residency in the US since I always fly in and out to visit my now fiance, so I am not required to register it here), a Canadian bank account, etc... If I could also show them a plane ticket back to Canada within 6 months from my entry date (I do actually intend to return to Canada and to celebrate my birthday there, which will be within 6 months from our intended wedding date), would that solidify my case that I had no immigrant intent?

Do you intend to move with your husband to Canada or the USA? If the latter, you have immigration intent.

[Kez/JWolf 6]

All of the things you listed do not show strong ties to your home country.... do you own a house there? do you have a job to return to? Children waiting for you?

A return flight ticket means nothing, nor does your car, nor a bank account, and nor your birthday....

Kezzie

[Dr_LHA 3]

From what you're saying it sounds like you really don't want to give up your freedom of movement between the USA and Canada. Unfortunately when you get married you will have to lose that freedom while you apply for a Green Card. It sucks, but this is the reality that almost* everyone here has to face.

*Not people with H-1B's like myself! Sorry!

[am1996 0]

Do you think there would be 100's of canadians applying for K1 & K3 visa's if it was as easy as you think it is.....

I think not...

Kezzie

There are many reason for many Canadians to apply for a K1 (if they actually intend to enter the remain in the US for a while while they await their employment authorization and LPR, for instance), none of which seem to apply to me. I do know that since I am here on a valid B2 status (I honestly had no intention of immigrating to the US when I last entered the country), I do quality for an AOS without any need for a K1. That's not the question, however

[zyggy 9]

Thank you all so very much for all the thoughtful posts I have received here. Just to clarify, Canada is not a part of the european Visa Waiver Program. Instead, under NAFTA, Canadians who otherwise qualify for a B1 or B2 status are typically just "waived through" -- we do not receive the actual I94, have 6 months (instead of the usual 3 months under the Visa Waiver Program) to remain in the US under that status. Upon the expiration of the 6 months, we can either apply for an extension (which is a hassle, since we don't typically get I94's, which are required for an extension) or can just leave the US and can then immediately come back to get another B1/2 and another 6 months.

While all that in mind, while AOS would effectively nullify my existing B2, wouldn't I receive another one if I were to leave and then come back to visit my husband?

Let me let you in on something... I am a former CBP officer who worked for years at a US-Canadian land POE. I am telling you this, because there is a little misconception that Canadians seem to have. You have no rights that any other alien has other than the fact that a Canadian Citizen does not need to visa to be able to enter the US. What that means is that a Canadian citizen does not need to go through the protocols that other nationals need to do to be able to request entry to the US at a POE (i.e. getting a visa). Other than that the requirements for entry to the US are the same for any alien in the INA. It doesn't matter if you're from Canada or Kazakhstan, the law on entry treats you equally. NAFTA only covers trade and movement of goods.. it does not cover immigration or movement of people.

Also, I'd like to see someone try to stay in the US for 6 months, leave and try to come back in again. I have news for you, they would get denied pretty quickly. A B1/B2 status is not mant for someone to try to stealthily live in the US.. which is what you suggest implies. CBP knows more about you and your movements than you know about...

INA Section 214B requires that any alien that enters the US is considered to have immigrant intent. It is the burden of the alien to prove otherwise to the satisfaction of a CBP officer. Most Canadians don't have a problem overcoming this since they can very easily prove their links to Canada and that they have no interest in immigrating to the US.

You do not have this. YOu are getting married to a US Citizen and have besically been living on his support in the US for 6 months and have no job, or any other ties to Canada. You madam, are a prime candidate for getting sent back home. I know this because I have personally sent home hundreds of naive Canadians like you who had no interest of knowing what the rules are. So I suggest that you read what you see here and do what we say necause we are looking out for you. The CBP is looking out to enforce the immigation laws of the US and does not give a rip about you...

Misrepresentation and removal are very serious things and the CBP does not take kindly to it...

So if you want to be away from your husband for years, go ahead and do what you plan... If you want to stay with your husband, you're going to have to make sacrifices... and if you haven't heard, that's what being married is all about...

Edited August 3, 2006 by zyggy

[am1996 0]

Thanks for your post, it certainly puts a number of things in perspective. I don't mean to argue but just want to clarify a couple of points you've raised:

It doesn't matter if you're from Canada or Kazakhstan, the law on entry treats you equally. NAFTA only covers trade and movement of goods.. it does not cover immigration or movement of people.

Please see this: www.burningart.com/mizpoon/B-1%20Visa%20Primer.doc

Here's a quote: "Due to the North American Free Trade Agreement (NAFTA), Canadian citizens are also visa exempt. Many Canadian citizen visitors often times are "waived" through immigration and not issued a Form I-94. This can lead to problems in extending their stay and/or changing their status in the U.S. and it is generally safer to have the person simply return to Canada and reenter. Furthermore, the rules regarding B-1 activities for Canadian citizens are broader than for other B-1 nonimmigrants although the enumeration and foreign residence abroad requirements remain the same as for other B-1 nonimmigrants."

YOu are getting married to a US Citizen and have besically been living on his support in the US for 6 months and have no job, or any other ties to Canada.

Actually, as a medical student, I use medical and residency loans for support, so my now fiance provides no support for me.

You madam, are a prime candidate for getting sent back home. I know this because I have personally sent home hundreds of naive Canadians like you who had no interest of knowing what the rules are.

Actually, I am trying to find out what the rules are, which is the reason that I posted in this forum in the first place. I have already been advised by an immigration lawyer that I do qualify for an AOS since I am here on a valid B2. So, I am trying to determine whether I would qualify for another B2 if I could demonstrate an actual intent to return to Canada to wait for the AOS to be approved. My understanding is that only the present intent is what's at issue when I enter the country -- in other words, the fact that I would eventually return to the US as a conditional permanent resident would not change the fact that I would seek entry into the US after the Carribean trip with a full intent to (and would actually) return to Canada prior to the expiration of the 6 month period that applies to B2's. Is there something illegal/improper about this? If so, please let me know. Once again, I have no intention of knowingly or unknowingly violating any laws but in order for me to do that, I need to know what they are.

Once again, thank you all for all the replies. They are very much appreciated!

Edited August 3, 2006 by am1996

[Dr_LHA 3]

Are you planning on returning to Canada and applying for K-1 visa? If not at some point you are going to be entering the US illegally on a B2.

Right now you are not breaking the law because you didn't intend to marry when you entered on a B2, but if you get married and try to return on a B2, you'll either get denied at the border, or it could cause you problems later down the line.

As others and myself have said, if you intend to live in the US with your husband you should do the following:

Get married in the USA, file for AOS and AP, and not travel until you either have the AP or you have your Green Card.

[zyggy 9]

Thanks for your post, it certainly puts a number of things in perspective. I don't mean to argue but just want to clarify a couple of points you've raised:

It doesn't matter if you're from Canada or Kazakhstan, the law on entry treats you equally. NAFTA only covers trade and movement of goods.. it does not cover immigration or movement of people.

Please see this: www.burningart.com/mizpoon/B-1%20Visa%20Primer.doc

Here's a quote: "Due to the North American Free Trade Agreement (NAFTA), Canadian citizens are also visa exempt. Many Canadian citizen visitors often times are "waived" through immigration and not issued a Form I-94. This can lead to problems in extending their stay and/or changing their status in the U.S. and it is generally safer to have the person simply return to Canada and reenter. Furthermore, the rules regarding B-1 activities for Canadian citizens are broader than for other B-1 nonimmigrants although the enumeration and foreign residence abroad requirements remain the same as for other B-1 nonimmigrants."

That is correct in that there is a treaty (not NAFTA) that states that a visa is not required. You are confusing visa with entry. A visa is a ticket that allows you to request entry at a POE. A visa does not guarantee you entry to the US if there are factors that make you not eligible for entry to the US. Having immigrant intent is one of them. And it doesn't matter if you're a Canadian or from somewhere else, those rules still apply.

Notice it states enumeration and foreign residence requirements... Enumeration means that your employment must primarilly be outside the US... foreign residence rwquirement means that your residence must be outside the US. From what you have told us, you fail both of those tests... that plus having a US Spouse pretty much kills the deal...

YOu are getting married to a US Citizen and have besically been living on his support in the US for 6 months and have no job, or any other ties to Canada.

Actually, as a medical student, I use medical and residency loans for support, so my now fiance provides no support for me.

That doesn't matter.. the point is that you've been staying under his roof under his support. (who pays the utility bills, mortgage/rent/etc.)

You madam, are a prime candidate for getting sent back home. I know this because I have personally sent home hundreds of naive Canadians like you who had no interest of knowing what the rules are.

Actually, I am trying to find out what the rules are, which is the reason that I posted in this forum in the first place. I have already been advised by an immigration lawyer that I do qualify for an AOS since I am here on a valid B2. So, I am trying to determine whether I would qualify for another B2 if I could demonstrate an actual intent to return to Canada to wait for the AOS to be approved. My understanding is that only the present intent is what's at issue when I enter the country -- in other words, the fact that I would eventually return to the US as a conditional permanent resident would not change the fact that I would seek entry into the US after the Carribean trip with a full intent to (and would actually) return to Canada prior to the expiration of the 6 month period that applies to B2's. Is there something illegal/improper about this?

Nothing illegal about it until you commit a material misrepresentation (and witholding information is also a material misrepresentation). But the INA does not allow individuals who have your particular details to be allowed entry to the US. You can go wherever you want... but the CBP does not have to let you back in. In your case, with near certainty I can say that if you leave the US, you will not be allowed back in...

So no... in my opinion, you would not be permitted entry to the US under B2 status if you left the US and attempted to reenter the US. The point is that you didn't have immigrant intent when you entered the last time.. you do now... and what your intent is now determines whether or not you will be permitted entry. It doesn't matter how many times you state you will cross back and forth before you do immigrate.. The point is you do have it.. and that's all that matters...

[am1996 0]

Do you intend to move with your husband to Canada or the USA? If the latter, you have immigration intent.

This is a very good point. The question is, however, is it the present intent or the future intent that is measured? For instance, if a person seeks to enter the country on H1B but is hoping to find somebody to marry in the US and to subsequently immigrate to the US, I believe that he would still be allowed into the country as long as he can conclusively demonstrate that he still intends to and has the means to comply with the terms and conditions of his H1b by returning to his home country at the expiration of his visa and then applying for a K1, etc... If that is correct, I believe I would qualify for the B2 status upon my return from the Carribean since I would fully comply with it by returning to Canada within the 6 month period. Please let me know if this is or is not the way the law operates.

[zyggy 9]

Thanks for your post, it certainly puts a number of things in perspective. I don't mean to argue but just want to clarify a couple of points you've raised:

It doesn't matter if you're from Canada or Kazakhstan, the law on entry treats you equally. NAFTA only covers trade and movement of goods.. it does not cover immigration or movement of people.

Please see this: www.burningart.com/mizpoon/B-1%20Visa%20Primer.doc

Here's a quote: "Due to the North American Free Trade Agreement (NAFTA), Canadian citizens are also visa exempt. Many Canadian citizen visitors often times are "waived" through immigration and not issued a Form I-94. This can lead to problems in extending their stay and/or changing their status in the U.S. and it is generally safer to have the person simply return to Canada and reenter. Furthermore, the rules regarding B-1 activities for Canadian citizens are broader than for other B-1 nonimmigrants although the enumeration and foreign residence abroad requirements remain the same as for other B-1 nonimmigrants."

That is correct in that there is a treaty (not NAFTA) that states that a visa is not required. You are confusing visa with entry. A visa is a ticket that allows you to request entry at a POE. A visa does not guarantee you entry to the US if there are factors that make you not eligible for entry to the US. Having immigrant intent is one of them. And it doesn't matter if you're a Canadian or from somewhere else, those rules still apply.

Notice it states enumeration and foreign residence requirements... Enumeration means that your employment must primarilly be outside the US... foreign residence rwquirement means that your residence must be outside the US. From what you have told us, you fail both of those tests... that plus having a US Spouse pretty much kills the deal...

YOu are getting married to a US Citizen and have besically been living on his support in the US for 6 months and have no job, or any other ties to Canada.

Actually, as a medical student, I use medical and residency loans for support, so my now fiance provides no support for me.

That doesn't matter.. the point is that you've been staying under his roof under his support. (who pays the utility bills, mortgage/rent/etc.)

You madam, are a prime candidate for getting sent back home. I know this because I have personally sent home hundreds of naive Canadians like you who had no interest of knowing what the rules are.

Actually, I am trying to find out what the rules are, which is the reason that I posted in this forum in the first place. I have already been advised by an immigration lawyer that I do qualify for an AOS since I am here on a valid B2. So, I am trying to determine whether I would qualify for another B2 if I could demonstrate an actual intent to return to Canada to wait for the AOS to be approved. My understanding is that only the present intent is what's at issue when I enter the country -- in other words, the fact that I would eventually return to the US as a conditional permanent resident would not change the fact that I would seek entry into the US after the Carribean trip with a full intent to (and would actually) return to Canada prior to the expiration of the 6 month period that applies to B2's. Is there something illegal/improper about this?

Nothing illegal about it until you commit a material misrepresentation (and witholding information is also a material misrepresentation). But the INA does not allow individuals who have your particular details to be allowed entry to the US. You can go wherever you want... but the CBP does not have to let you back in. In your case, with near certainty I can say that if you leave the US, you will not be allowed back in until you have a visa that allows that (i.e CR-1 or K3)

So no... in my opinion, you would not be permitted entry to the US under B2 status if you left the US and attempted to reenter the US. The point is that you didn't have immigrant intent when you entered the last time.. you do now... and what your intent is now determines whether or not you will be permitted entry. It doesn't matter how many times you state you will cross back and forth before you do immigrate.. The point is you do have it.. and that's all that matters...

[am1996 0]

Are you planning on returning to Canada and applying for K-1 visa? If not at some point you are going to be entering the US illegally on a B2.

I am sorry but I am not sure that I understand the question. I am not required to apply for a K1 visa now since I am in the US under a valid visa. Upon us getting married, I would not qualify for a K1 visa since it is a fiance visa, so married people do not qualify for it.

Notice it states enumeration and foreign residence requirements... Enumeration means that your employment must primarilly be outside the US... foreign residence rwquirement means that your residence must be outside the US. From what you have told us, you fail both of those tests... that plus having a US Spouse pretty much kills the deal...

I disagree (obviously) but your analysis is certainly reasonable and is giving me much pause here.

That doesn't matter.. the point is that you've been staying under his roof under his support. (who pays the utility bills, mortgage/rent/etc.)

With all due respect, under this analysis all people entering the country on a B2 visa to visit US relatives would not be allowed in unless they were paying their share of the mortgage, utility, etc...

Nothing illegal about it until you commit a material misrepresentation (and witholding information is also a material misrepresentation). But the INA does not allow individuals who have your particular details to be allowed entry to the US. You can go wherever you want... but the CBP does not have to let you back in. In your case, with near certainty I can say that if you leave the US, you will not be allowed back in...

So no... in my opinion, you would not be permitted entry to the US under B2 status if you left the US and attempted to reenter the US. The point is that you didn't have immigrant intent when you entered the last time.. you do now... and what your intent is now determines whether or not you will be permitted entry. It doesn't matter how many times you state you will cross back and forth before you do immigrate.. The point is you do have it.. and that's all that matters...

This is exactly what I am trying to understand. Lots of people have future immigration intent. Mail order brides, for instance, enter the country to "visit" men and if they like each other, they return to their home country, get K1's, etc... Workers get H1B's but hope to eventually get a chance to immigrate to the US. Isn't the test not what you future intentions are but whether you intend to immigrate to the US during this particular entry into the country? If so, my answer will be a resounding NO (I will actually come back to Canada), the pendency of my AOS application notwithstanding.