Do I even need a K1 as a Canadian?

[Kez/JWolf 6]

Nobody is saying you cant do AOS.. as you are in the States and you did not enter with the intent of remaining so yes once you are married here in the States you can file for AOS.....

What we are saying is you cant leave the States and then re-enter unless you have filed for AOS and have AP or Greencard....

If you do then you will most likey be denied....

Kezzie

[ceriserose 1]

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.

I daresay, most 'mail order brides' come from countries where the visitor visas are few and far between for the very reason of intent.

[am1996 0]

I sincerely apologize for this long discussion and for the barrage of replies. I really am not arguing but am just honestly trying to drill down to the way the law works, so I know what to do. Once again, thank you all so much for all this information.

Nobody is saying you cant do AOS.. as you are in the States and you did not enter with the intent of remaining so yes once you are married here in the States you can file for AOS.....

What we are saying is you cant leave the States and then re-enter unless you have filed for AOS and have AP or Greencard....

If you do then you will most likey be denied....

Kezzie

The AOS is not really an issue in my case. If it can help, we can just apply for an AOS AFTER we come back from the Caribbean (by law, I am required to get an employment authorization within 90 days from my AOS application, which is all I'll need to start my residency in July '07). The point is that we will be married at the time I will be entering the US from the Caribbean.

[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.

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.

OK, K3 visa then.

Workers get H1B's but hope to eventually get a chance to immigrate to the US.

H-1B visa's are "dual intent" which means you are allowed to have immigrant intentions and have a H-1B. Same is true for an O-1 visa.

The AOS is not really an issue in my case. If it can help, we can just apply for an AOS AFTER we come back from the Caribbean (by law, I am required to get an employment authorization within 90 days from my AOS application, which is all I'll need to start my residency in July '07). The point is that we will be married at the time I will be entering the US from the Caribbean.

The fact is that you will be entering the US, as the wife of a USC with intention to file for AOS. This is immigration intent. To do this you need a K-3 visa. If you try to enter on a B-2 and the CPB figures out your intentions, you will be deported to Canada, and possibily banned from re-entering the country.

No matter how you argue this it comes down to 1 simple fact. Right now you are legally in the USA on a B2, the next time you enter on a B2 you will be doing so illegally as you intend to stay. You're breaking the law by leaving the US with intention to return no matter how you try to figure out a way around it.

Please don't risk it!

Edited August 3, 2006 by dr_lha

[ceriserose 1]

I think what might be getting lost is that there are certain assumptions made by CBP when a person is single versus when a person is married.

The assumption for you as a single person on a B2 visa is that you will return home. Sure, there's always a chance you've found someone and decide on a whim to get married, but the usual intent is to comply with the full terms of the visa (i.e. not immigrate).

The assumption for a married person is that they are intending to live with their spouse. No matter whether you arrived in good faith on your B2 and didn't intend to immigrate, once you're married, the assumption scale shifts drastically against your intent to immigrate. So what Zyggy has been telling you, despite your disagreeing in whole or in part, is that the assumption of any CBP officer will be to scrutinize and weight more heavily assuming that you want to immigrate.

While in process, K3 and CR1/IR1 couples face similar scrutiny. (Heck, I was only dating my now-hubby at the time and got grilled by a CBP officer because instead of working full time I was going to school...that small shift in my lifestyle made me more 'likely' to have immigrant intent...and I wasn't even engaged yet!)

The short answer on leaving is, if you have filed for AOS, you abandon that petition if you leave the US without Advanced Parole or a valid Green Card. If that petition is abandoned you must apply via an immigrant spousal visa K3 or CR1/IR1. The concept of coming and going as you have on a B2 doesn't work so well in the world of AOS.

[Kez/JWolf 6]

ok you just dont get what I am trying to say... so here goes again

1. To be able to do AOS from VWP/B1/B2 you enter then country with no intent to remain and on the spur of the moment you get married.... you wish to remain in the US.... It is allowed for you to file AOS... but you canot leave the country until you have either AP or Greencard...

2. You enter on a VWP/B1/B2 and get married and go off to another country to have a wondeful honeymoon... to re-enter the USA you would need a K3 visa.. you can not re-enter on VWP/B1/B2 and then do AOS as you would have immigrant intent on your last entry....

Kezzie

[am1996 0]

Ok, please take a look at the following thread on this forum. Why aren't they having trouble with the "immigration intent"? http://www.visajourney.com/forums/index.php?showtopic=24989

[Kez/JWolf 6]

Because they are not married yet...... and they have evidence of strong ties to Canada....

Kezzie

[Dr_LHA 3]

Because they are not married yet...... and they have evidence of strong ties to Canada....

Kezzie

Also, they are also applying for a K-1 visa, which apparently you are not intending on doing. You seem to think you can come and go from Canada until you decide for file AOS, which you can't.

[antone 0]

Ok, please take a look at the following thread on this forum. Why aren't they having trouble with the "immigration intent"? http://www.visajourney.com/forums/index.php?showtopic=24989

This is a slightly different question. It is not illegal to visit the USA while a K1 is being processed, provided one can demonstrate strong ties to their homeland: a job, property, that sort of thing. Note that people have been denied entry under these circumstances.

Once you are married to a USC (as you will be) the whole balance of assumptions shifts against you - and remember that you need to prove a lack of immigrant intent - they don't have to prove that you have it.

[am1996 0]

This is a slightly different question. It is not illegal to visit the USA while a K1 is being processed, provided one can demonstrate strong ties to their homeland: a job, property, that sort of thing. Note that people have been denied entry under these circumstances.

Once you are married to a USC (as you will be) the whole balance of assumptions shifts against you - and remember that you need to prove a lack of immigrant intent - they don't have to prove that you have it.

Makes total sense. Please take a look at this then: http://www.visajourney.com/forums/index.ph...amp;hl=canadian Edited August 3, 2006 by am1996

[Dr_LHA 3]

Makes total sense. Please take a look at this then: http://www.visajourney.com/forums/index.ph...amp;hl=canadian

Again, they are applying for a visa.

If you are going to return to Canada and apply for the correct visa to re-enter the country to file AOS, then you probably won't have any issues. However from what you've said on this forum, you have no intention of filing for a "K" visa of any kind.

[am1996 0]

Because they are not married yet...... and they have evidence of strong ties to Canada....

Kezzie

I have evidence of strong ties to Canada, so that's not a problem. Also, ties to Canada are necessary to establish your non-immigration intent, correct? Doesn't the fact that they are engaged evidences their obvious immigration intent? I am not sure that I see the difference between that and my situation.

[ceriserose 1]

Because they are not married yet...... and they have evidence of strong ties to Canada....

Kezzie

Plus the fact that they probably disclosed that they have a visa pending, indicating that they are not trying to skirt the system.

Incidentally, anyone in this position can also be denied entry...and some have. One person on this board intended to come to the US and be married and then return to Canada and file a K3. She was denied entry to the US for the wedding because the CBP officer thought she had immigrant intent. She ended going the K1 route.

[Dr_LHA 3]

I see you're ignoring my question! I'll ask again - do you intend to apply for a K visa?