Do I even need a K1 as a Canadian?

[antone 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

Note that OP in that thread was well aware that he needed to show strong ties to Canada to be admitted for a visit. He provided that proof, and (perhaps also important) got a sympathetic CBP officer. Plus, of course, he could show proof of his visa application and the officer was convinced that he would not jeopardise his legal status by immigrating illegally.

[Kez/JWolf 6]

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.

They have to return to their own country to complete the K1 process what better tie than that.... But you have clearly shown that you dont want to belive what we are trying to explain..... I as said before maybe an appointment with an immigration lawyer will put you right....

Or you can do what you intent to do and them sort it all out after you are refused at POE....

Good Luck

Kezzie

[antone 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.

If you marry on your current visit and apply for AOS (perfectly legal) and subsequently leave the USA your AOS application will be considered to have been abandoned.

You could marry and attempt to reenter after your honeymoon, but your chances of being turned away are high.

[ceriserose 1]

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.

The difference is the type of visa.

The fact someone is engaged evidences immigration intent. Filing for a non-immigrant (K1) visa establishes equal intent to follow the USCIS rules for legal entry into the country. Disclosing both to a CBP officer would be weighed together.

Married to someone, filing AOS and then abandoning your petition to leave the US for whatever reason, and then subsequently trying to return on a B2 visa (or other 'visitor' type visa) would be weighed all together as well. You've had it explained earlier in the thread how a CBP officer might view them all together (zyggy).

What you consider strong ties to Canada (as you described earlier in this thread) aren't necessarily what a CBP officer would call strong. The evidence of strong ties to Canada is a job (letter from employer stating you're expected back on such and such a date), mortgage/property (with paperwork to prove such)...and equally strong items. If you have other ties along those lines that you haven't mentioned that fall into the types I've mentioned, then you might be fine.

[am1996 0]

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

I am not ignoring your question. Answering it requires me to understand the law and my options, which at this point I do not. In other words, it certainly appears that if I get married in the US prior to my Carribean trip, I may be required to apply for a K3 visa, which would not be a problem. The above links seem to indicate, however, that I would still be allowed to enter the US to visit my husband while the K3 application was pending as long as I fully intended to go back to Canada, which is exactly what we want to to happen.

Once again, for our purposes it makes no difference whether I eventually receive my EAD and LPR through a K3 or through an AOS application that I would file while I am here on B2. The key is being able to leave and return to the US while the applications are pending, which, according to the links above, is certainly possible, legal and is done all the time.

Edited August 3, 2006 by am1996

[antone 0]

Once again, for our purposes it makes no difference whether I eventually receive my EAD and LPR through a K3 or through an AOS application that I would file while I am here on B2. The key is being able to leave and return to the US while the applications are pending, which, according to the links above, is certainly possible, legal and is done all the time.

Basically correct - it is certainly not illegal to enter the US while a CR1/K3 is pending. Whether you are allowed entry by the CBP officer is another question, and that's where the evidence of ties to your homeland comes in. If you do attempt this, make sure you have a strong package of proof.

[Dr_LHA 3]

OK. It was just you were citing other cases where people were going through the visa application.

Your case is very simple, I think you're "trying to understand" is you being in denial over what the facts of the case are:

1. You are in the USA. If you get married here and stay, you can file AOS. You cannot leave the country until you have AP or GC.

2. You get married and then leave the country. You cannot return unless you file for a K-3 visa.

3. You leave the country now, and return to get married. You cannot legally do this unless you apply for a K-1 visa.

You may be able to visit the country while your "K" visa is pending, if you can prove that you have no intention of staying as you need to be in Canada to get your "K". Personally I'm a little suspicious of this, but if others have done it fair enough.

What is it you don't understand?

[am1996 0]

The fact someone is engaged evidences immigration intent. Filing for a non-immigrant (K1) visa establishes equal intent to follow the USCIS rules for legal entry into the country. Disclosing both to a CBP officer would be weighed together.

This is precisely what I've been trying to determine. Throughout this thread I've been told that since your overall intent is to immigrate to the US, you will not be allowed to enter on a B2. All my replies have asked whether the intent that is at issue is the "overall" intent or the intent that you have during the trip in question.

While your K1 or K3 application is pending, you certainly have the "overall" intent to immigrate to the US, which did not prevent all the posters in the links above from entering the country. According to those links, since the posters had the intent to return to their home countries after the specific trips in question, they were granted the B2 status for the trips. Assuming that I fully disclose all the facts and circumstances to border patrol, as I fully intend to do, it sounds like I should be also qualify for the B2 status after I return from the Caribbean -- this assumes, of course, that I would be able to conclusively demonstrate my ties to Canada, my intent to return there and my willingness and ability to go through the establishes immigration procedures to eventually obtain my LPR. What's wrong with this analysis?

Basically correct - it is certainly not illegal to enter the US while a CR1/K3 is pending. Whether you are allowed entry by the CBP officer is another question, and that's where the evidence of ties to your homeland comes in. If you do attempt this, make sure you have a strong package of proof.

Thank you very much. This is what I was trying to confirm. I certainly understand that border patrol officers have the discretion to admit or deny entry and that some people in my situation have been turned away in the past. What I was and still am trying to confirm is that my basic approach is sound. As long as that's the case, since I cannot do anything about the particular border patrol people I may run into, I just have to trust them and hope that they are knowledgeable and understand the situation. I am comfortable with doing that as long as my general approach makes sense. Edited August 3, 2006 by am1996

[RosaMystica7 0]

Laurel Scott, an immigration attorney, has free chats on Wednesdays at 11am CST for "quick questions." So if you're not satisfied with the responses you're getting here and you can boil your confusion down to a few questions, maybe try that.

[am1996 0]

You may be able to visit the country while your "K" visa is pending, if you can prove that you have no intention of staying as you need to be in Canada to get your "K". Personally I'm a little suspicious of this, but if others have done it fair enough.

With all due respect, the fact that a K visa application is pending does NOT appear to be an entry requirement. What appears to be the crucial question is the person's intent during the specific trip in question. If the person intends to come back to the home country, a B2 visa will be granted.

The pendency of the K visa simply affirms the fact that the person is already going through the proper immigration channels to obtain his/her LPR, so that he/she would have no reason to jeopardize the process by remaining in the country while on the B2 visa. I believe that I would be able to demonstrate the same intent after the Caribbean trip, so it appears that being granted a B2 visa, while certainly not a foregone conclusion, would be possible and even probable.

Laurel Scott, an immigration attorney, has free chats on Wednesdays at 11am CST for "quick questions." So if you're not satisfied with the responses you're getting here and you can boil your confusion down to a few questions, maybe try that.

Thank you VERY MUCH! Although it may not sound like it, I actually am quite happy with the replies here (even the cautionary ones) but chatting with her certainly won't hurt.

[ceriserose 1]

The fact someone is engaged evidences immigration intent. Filing for a non-immigrant (K1) visa establishes equal intent to follow the USCIS rules for legal entry into the country. Disclosing both to a CBP officer would be weighed together.

This is precisely what I've been trying to determine. Throughout this thread I've been told that since your overall intent is to immigrate to the US, you will not be allowed to enter on a B2. All my replies have asked whether the intent that is at issue is the "overall" intent or the intent that you have during the trip in question.

While your K1 or K3 application is pending, you certainly have the "overall" intent to immigrate to the US, which did not prevent all the posters in the links above from entering the country. According to those links, since the posters had the intent to return to their home countries after the specific trips in question, they were granted the B2 status for the trips. Assuming that I fully disclose all the facts and circumstances to border patrol, as I fully intend to do, it sounds like I should be also qualify for the B2 status after I return from the Caribbean -- this assumes, of course, that I would be able to conclusively demonstrate my ties to Canada, my intent to return there and my willingness and ability to go through the establishes immigration procedures to eventually obtain my LPR. What's wrong with this analysis?

Anyone can have an overall intent to immigrate. Do you realize as you're discussing this that there are actually 2 government entities you're dealing with? USCIS (immigration) and CBP (customs and border). Each have different mandates and different end goals. You file with USCIS on your overall intent (via whichever means that matches your situation) and with CBP you are required to justify each and every time you attempt to enter a foreign country your intent. (That is normal, BTW, that's why they ask everyone questions through the POE.)

What USCIS cares about is filing the correct visa for your purpose. If you are a spouse trying to immigrate, you use a K3 or CR1/IR1. If you are fiance trying to immigrate you use a K1. If you entered the US on another valid visa and without having intent to marry when entering on that visa, they make provision for the fancy of love and allow a person to adjust status while within the US (apply for AOS). Each of these types of visas have specific stipulations on what freedoms and abilities you have and don't have. I'm more familiar with K1 because that's what I used but the Guides tab above breaks them down fairly well.

What you seem to be missing is that when your status changes, and while you might not think that is a big deal in your coming and going, those changes make a big difference to the person assessing you at the POE. A married person by the nature of marriage will automatically be deemed to be trying to live with their spouse and so every visit you make across that border will have that connotation tied to it. Yes, Virginia, it's possible for a spouse to visit while they're in process of a visa (K3 or CR1/IR1) but you can bet dollars to doughnuts that a spouse trying to visit without having a visa in process will be viewed as a high risk to immigrate without proper documentation.

So say you marry your sweetie and leave for the Caribbean. At the POE coming back you inform them you're married and that you're just going back to the US for a bit. Then you're going to Canada. They're going to wonder if you truly intend that. The burden of proof is then on you to prove. From the 'strong ties' you've described here you've been told by a former CBP officer that they wouldn't let you into the US. It's been suggested that if you have other strong ties you haven't mentioned you *might* be okay. That's a gamble and risk you take. Heck, you may get away with it, if you have a sympathetic CBP officer and what you say/do convinces them. But if you don't convince them, the repurcussions can be a lot more difficult to get around, including bans and filing waivers. There is a person on this site who had an overstay from Canada to the US and is now several YEARS trying to file the appropriate waivers and such to get back to live with her husband.

I'm not saying these things can't be done, but read around the board at some of the various situations...even what might be reasonable to you and I becomes a huge mess. Just be aware of what *might* happen and weigh that against how you proceed. (Which it sounds like you're doing anyway...)

Edited August 3, 2006 by ceriserose

[RosaMystica7 0]

You're welcome! We here on VJ try to help as much as we can - but in the end, we're only non-lawyer humans so there's only so much that we can do. 99.9999999% of my questions have been answered here wonderfully, but there was just one thing left that I got varying responses to and it wasn't a question that I could toy with - I needed a solid answer. But yet I couldn't afford to (and wouldn't want to if I could) pay $75 - $100 for a "30 minute consultation" with an immigration attorney - I only had 2 questions that would take a matter of minutes to answer! I found a link to Laurel in the forums here, and she was a huge help.

This whole visa process can make your head spin. Good luck with trying to get all of this straightened out.

I saw someone mention Puerto Rico and the US Virgin Islands as suggestions of places to go - how about Hawaii? That's totally American so even if you're not legally able to leave and re-enter the US you'd be fine, and that's just as beautiful as the Carribean. I think Guam is a US territory also... oh, and American Samoa. And some others that I've never heard of before.

[am1996 0]

What you seem to be missing is that when your status changes, and while you might not think that is a big deal in your coming and going, those changes make a big difference to the person assessing you at the POE. A married person by the nature of marriage will automatically be deemed to be trying to live with their spouse and so every visit you make across that border will have that connotation tied to it. Yes, Virginia, it's possible for a spouse to visit while they're in process of a visa (K3 or CR1/IR1) but you can bet dollars to doughnuts that a spouse trying to visit without having a visa in process will be viewed as a high risk to immigrate without proper documentation.

So say you marry your sweetie and leave for the Caribbean. At the POE coming back you inform them you're married and that you're just going back to the US for a bit. Then you're going to Canada. They're going to wonder if you truly intend that. The burden of proof is then on you to prove. From the 'strong ties' you've described here you've been told by a former CBP officer that they wouldn't let you into the US. It's been suggested that if you have other strong ties you haven't mentioned you *might* be okay. That's a gamble and risk you take. Heck, you may get away with it, if you have a sympathetic CBP officer and what you say/do convinces them.

This makes TOTAL sense. Thank you very much for your perspective. It is entirely too easy to convince yourself that your approach is sound (especially when it makes logical sense, at least to me), which is the reason that the replies on this board have been absolutely invaluable. Hearing the potential counterarguments and in the process discovering various weaknesses in them is the best way I know of to decide on a particular course of action, so I very much appreciate all the posts (and especially your post above, which makes PERFECT sense to me).

There is a person on this site who had an overstay from Canada to the US and is now several YEARS trying to file the appropriate waivers and such to get back to live with her husband.

Would you mind sending me a link to that thread? I searched and couldn't find it. I'm sure it'd be quite educational as well.

I'm not saying these things can't be done, but read around the board at some of the various situations...even what might be reasonable to you and I becomes a huge mess. Just be aware of what *might* happen and weigh that against how you proceed. (Which it sounds like you're doing anyway...)

Yep, exactly. Thanks again!

[ceriserose 1]

What you seem to be missing is that when your status changes, and while you might not think that is a big deal in your coming and going, those changes make a big difference to the person assessing you at the POE. A married person by the nature of marriage will automatically be deemed to be trying to live with their spouse and so every visit you make across that border will have that connotation tied to it. Yes, Virginia, it's possible for a spouse to visit while they're in process of a visa (K3 or CR1/IR1) but you can bet dollars to doughnuts that a spouse trying to visit without having a visa in process will be viewed as a high risk to immigrate without proper documentation.

So say you marry your sweetie and leave for the Caribbean. At the POE coming back you inform them you're married and that you're just going back to the US for a bit. Then you're going to Canada. They're going to wonder if you truly intend that. The burden of proof is then on you to prove. From the 'strong ties' you've described here you've been told by a former CBP officer that they wouldn't let you into the US. It's been suggested that if you have other strong ties you haven't mentioned you *might* be okay. That's a gamble and risk you take. Heck, you may get away with it, if you have a sympathetic CBP officer and what you say/do convinces them.

This makes TOTAL sense. Thank you very much for your perspective. It is entirely too easy to convince yourself that your approach is sound (especially when it makes logical sense, at least to me), which is the reason that the replies on this board have been absolutely invaluable. Hearing the potential counterarguments and in the process discovering various weaknesses in them is the best way I know of to decide on a particular course of action, so I very much appreciate all the posts (and especially your post above, which makes PERFECT sense to me).

There is a person on this site who had an overstay from Canada to the US and is now several YEARS trying to file the appropriate waivers and such to get back to live with her husband.

Would you mind sending me a link to that thread? I searched and couldn't find it. I'm sure it'd be quite educational as well.

I'm not saying these things can't be done, but read around the board at some of the various situations...even what might be reasonable to you and I becomes a huge mess. Just be aware of what *might* happen and weigh that against how you proceed. (Which it sounds like you're doing anyway...)

Yep, exactly. Thanks again!

You're welcome. The poster I referred to is 'charmac7'. Do an advanced search for her name and you'll find her posts. It's very frustrating for her and her hubby and there's no relief in sight yet. It's stories like that one hears that makes many of us ultra-conservative about our approach to immigration and crossing borders.

[zyggy 9]

American Samoa doesn't count as that is not part of the "United States" as defined in the INA...

As others have said on here... leaving the US in your situation for the Carribean is a high-risk gamble. If you fail, the consequences will be pretty severe. A stay in a detention center and removal that comes with a 5-year ban on entering the US. Overcoming that removal to get a visa to immigrate to the US will require the approval of two waivers (I-601 and I-212). Getting those waivers will require the USC to prove some extreme hardship on their part that would not allow them to join you in Canada. Being the Canada is a 1st World country next to the US, that is relatively difficult to prove.

From what you have told us.. if you leave the US and try to reenter these are the facts that will come out (and if they don't come out by your witholding information, you're in big trouble)

1) you've been in the US under a B2 status for about 6 months. No matter which way you cut it, if you're married to a USC, it looks like you're shacking up with him and will continue to do so, no matter what protestations you have to the contrary...

2) you are a student with no current stable employment in Canada that would require to go back

3) you have no home that you owe money on that would require you to go back to

The three things together is a recipe for denial, especially the first one. To a CBP officer, actions speak louder than words. You may say that you intend to go back to Canada to wiat out a K3, your actions show otherwise as they are indicative of one who wishes to live in the US to be with their spouse. Without the proper visa, CBP cannot allow you to enter the US under those circumstances...

If you want to risk years of your life to straighten things out for a 2-week vacation to the Bahamas... you go right ahead...

Edited August 4, 2006 by zyggy