What to do

[Ron/Sharon 0]

Friends of ours are out of status, he visited in August and they were married in January. What is thier best next move? What should they file as and what forms should they use.

I know you canhelp these folks with the right information, I have the greatest confidence in everyone here as you all pulled me through everything to get here.

Thanks in advance for all the help from you to them.

Ron

[Kathryn41 3,205]

The important question is did your friend intend to get married when he entered the US on his last visit?

If he did not, and the decision was made while he was still in the US on this visit, then he is allowed to apply to adjust status to become a permanent resident while remaining in the US for the green card processing. His wife would file the I-130 petition and he would file the I-485 application. They would send these in together, along with an I-678 - Employment Authorization Document and the other necessary supporting documents (eg. immigration medical, I-864 Affidavit of Support, criminal checks, etc. ) It is probably not worthwhile for him to apply for an I-131 "Advance Parole Travel document" as he may not be able to use it, depending on how much illegal presence he has accrued in the US (if he is not from Canada he probably has over the 180 day limit). Ideally, he should also not leave the US until he gets approval of his green card or he may be denied re-entry. He and his wife would eventually attend an interview, and upon approval, he would receive his green card.

Is your friend from Canada? If so, he was legally allowed to visit for 6 months which would bring him to February. After that time he started to accrue illegal presence. Currently he has at least 3 months of accrued illegal presence. At 180 days of illegal presence he would incur a 3 year ban if he left the US. If you friend is not Canadian, then his allowed visit in the US would have been for no more than 90 days, so he would now have over 180 days of accrued illegal presence.

If your friend did intend to marry when he entered the US, then he is not allowed to remain in the US and apply to adjust status. To do so would be visa fraud - intentionally using one type of visa for a totally different purpose instead of applying for the proper visa. He would need to apply for the CR-1 visa instead. His wife would initiate that by filing the I-130 petition and when that was approved the processing would move to the foreign US Consulate, where he would then have to provide all of the same requested information, and attend an interview. If your friend is Canadian, then he has not yet accrued enough illegal presence to trigger a 3 year ban and should leave the US before he does in order to complete the processing for the CR-1 visa at the US Consulate in Montreal. If your friend is not Canadian and has more than 180 days of illegal presence, then the problem is that he would trigger the 3 year ban when he left, and they would require a hardship waiver in order to get the CR-1 visa approved.

The process he needs to follow is all determined by what his intent was when he entered the US. Your friends would do well to read over the guides here on VJ as well as the actual I-485 form and instructions, as well as all of the other forms indicated by the Guides and by the USCIS website.

Edited May 14, 2010 by Kathryn41

[Ron/Sharon 0]

Thank you Kathryn, they are now members of visa journey and I'm sure you will be hearing from them. Your help is greatly appreciated thank you very much.

[KSOLANO 0]

The important question is did your friend intend to get married when he entered the US on his last visit?

If he did not, and the decision was made while he was still in the US on this visit, then he is allowed to apply to adjust status to become a permanent resident while remaining in the US for the green card processing. His wife would file the I-130 petition and he would file the I-485 application. They would send these in together, along with an I-678 - Employment Authorization Document and the other necessary supporting documents (eg. immigration medical, I-864 Affidavit of Support, criminal checks, etc. ) It is probably not worthwhile for him to apply for an I-131 "Advance Parole Travel document" as he may not be able to use it, depending on how much illegal presence he has accrued in the US (if he is not from Canada he probably has over the 180 day limit). Ideally, he should also not leave the US until he gets approval of his green card or he may be denied re-entry. He and his wife would eventually attend an interview, and upon approval, he would receive his green card.

Is your friend from Canada? If so, he was legally allowed to visit for 6 months which would bring him to February. After that time he started to accrue illegal presence. Currently he has at least 3 months of accrued illegal presence. At 180 days of illegal presence he would incur a 3 year ban if he left the US. If you friend is not Canadian, then his allowed visit in the US would have been for no more than 90 days, so he would now have over 180 days of accrued illegal presence.

If your friend did intend to marry when he entered the US, then he is not allowed to remain in the US and apply to adjust status. To do so would be visa fraud - intentionally using one type of visa for a totally different purpose instead of applying for the proper visa. He would need to apply for the CR-1 visa instead. His wife would initiate that by filing the I-130 petition and when that was approved the processing would move to the foreign US Consulate, where he would then have to provide all of the same requested information, and attend an interview. If your friend is Canadian, then he has not yet accrued enough illegal presence to trigger a 3 year ban and should leave the US before he does in order to complete the processing for the CR-1 visa at the US Consulate in Montreal. If your friend is not Canadian and has more than 180 days of illegal presence, then the problem is that he would trigger the 3 year ban when he left, and they would require a hardship waiver in order to get the CR-1 visa approved.

The process he needs to follow is all determined by what his intent was when he entered the US. Your friends would do well to read over the guides here on VJ as well as the actual I-485 form and instructions, as well as all of the other forms indicated by the Guides and by the USCIS website.

Hi, I am sort of in the same situation. I will hopefully be returning to the states from Canada to visit my fiance and we might get married. I have a couple questions though;

1. How would they know if I had the intent of marrying before I enter?

2. If I enter the US in June, and we get married lets say July, could I apply for permanent residency? What is the exact process I need to follow?

3. How long would the process take given I enter in June and am legally allowed 6 months, which would be in December. Am I allowed to leave and come back?

Any advice would greatly help. Thanks!

[Danu 19]

Hi, I am sort of in the same situation. I will hopefully be returning to the states from Canada to visit my fiance and we might get married. I have a couple questions though;

1. How would they know if I had the intent of marrying before I enter?

2. If I enter the US in June, and we get married lets say July, could I apply for permanent residency? What is the exact process I need to follow?

3. How long would the process take given I enter in June and am legally allowed 6 months, which would be in December. Am I allowed to leave and come back?

Any advice would greatly help. Thanks!

1. Well they might find out at your interview, or the guard might find out when you try to cross. You would have to have proof you are coming back to Canada (lease, job letter etc) to cross into the states and they scrutinize it a lot more if you say you are going down for a long time. The guards and interviewers are also trained to see through people who aren't legit, and really...is possibly occuring a life time ban worth it?

2. To advise you on how to get around the immigration process is against the TOS of this site.

3. The process of doing an AOS takes about 3-5 months for a standard, simple case. You would only be allowed to leave if you got advanced parole when you applied or got your GC, but I've seen a lot of people on here say not to leave if you came as a tourist until your GC is in hand. If you leave without AP your adjustment would be denied.

The risks of doing what you are talking about, with having prior intent to marry (he is your fiance so you do), is visa fraud. There are legal ways to go about the process. File a K1 or CR1. If you don't you do run the risk of being caught and being denied ever being allowed back in the country. If you read Kathryn's thread it says the same thing. If you were there now, he was just your boyfriend and you decided on a whim to get married that would be one thing but you are already engaged and talking on here about circumventing immigration policies.

[KSOLANO 0]

1. Well they might find out at your interview, or the guard might find out when you try to cross. You would have to have proof you are coming back to Canada (lease, job letter etc) to cross into the states and they scrutinize it a lot more if you say you are going down for a long time. The guards and interviewers are also trained to see through people who aren't legit, and really...is possibly occuring a life time ban worth it?

2. To advise you on how to get around the immigration process is against the TOS of this site.

3. The process of doing an AOS takes about 3-5 months for a standard, simple case. You would only be allowed to leave if you got advanced parole when you applied or got your GC, but I've seen a lot of people on here say not to leave if you came as a tourist until your GC is in hand. If you leave without AP your adjustment would be denied.

The risks of doing what you are talking about, with having prior intent to marry (he is your fiance so you do), is visa fraud. There are legal ways to go about the process. File a K1 or CR1. If you don't you do run the risk of being caught and being denied ever being allowed back in the country. If you read Kathryn's thread it says the same thing. If you were there now, he was just your boyfriend and you decided on a whim to get married that would be one thing but you are already engaged and talking on here about circumventing immigration policies.

I am just saying persay. we have no intention of actually marrying yet. It was just a question. I had to leave my job because I would be absent for quit a while. I really just do wanna stay because I have friends getting married in the next couple months and like I said we want to do some traveling in the states. Was it a mistake to tell them he is my fiance? We have no intent of marrying anytime soon. If I go back to the border and say my boyfriend instead, would that be a bad idea?

Sorry I did not mean to ask for a way around the immigration process. I'm just super confused thats all.

[trailmix 77]

1. How would they know if I had the intent of marrying before I enter?

They won't know unless you tell them. There is nothing illegal about going to the U.S. to get married, people do it all the time.

2. If I enter the US in June, and we get married lets say July, could I apply for permanent residency? What is the exact process I need to follow?

You can apply for permanent residency. What you would do, first off, is file an I-130, which is basically a petition to apply for a visa. Once that is approved by USCIS, the file will move to the National Visa Center (NVC) - further documents to be filed there and fees paid. Once that is complete you would be in line for an interview in Montreal at the U.S. consulate. Plan on this process taking around a year (possibly less).

Have a look at the Guides here on VJ, there is a link at the top of this page. You will want to read the guide on the CR1 visa (this is short for Conditional Resident and applies to couples that have been married 2 years or less)

While all this is going on your can still visit your wife, just be sure to bring strong proof of ties to Canada with you when crossing the border. They may not ask for them, but they may.

3. How long would the process take given I enter in June and am legally allowed 6 months, which would be in December. Am I allowed to leave and come back?

As above

Good luck

[KSOLANO 0]

1. How would they know if I had the intent of marrying before I enter?

They won't know unless you tell them. There is nothing illegal about going to the U.S. to get married, people do it all the time.

2. If I enter the US in June, and we get married lets say July, could I apply for permanent residency? What is the exact process I need to follow?

You can apply for permanent residency. What you would do, first off, is file an I-130, which is basically a petition to apply for a visa. Once that is approved by USCIS, the file will move to the National Visa Center (NVC) - further documents to be filed there and fees paid. Once that is complete you would be in line for an interview in Montreal at the U.S. consulate. Plan on this process taking around a year (possibly less).

Have a look at the Guides here on VJ, there is a link at the top of this page. You will want to read the guide on the CR1 visa (this is short for Conditional Resident and applies to couples that have been married 2 years or less)

While all this is going on your can still visit your wife, just be sure to bring strong proof of ties to Canada with you when crossing the border. They may not ask for them, but they may.

3. How long would the process take given I enter in June and am legally allowed 6 months, which would be in December. Am I allowed to leave and come back?

As above

Good luck

So if we did get married and we proceeded with the process you described, after however long they allowed me to stay, I would come back to Canada. Would I not be able to stay there? If not and I wanted to go back to visit while everything was being processed, would I need to tell them that we are in the process of getting the CR1 Visa? What type of proof would I need to show I have ties with Canada still? I have no job at the moment I just finished high school and live at home with my mom.

Edited May 14, 2010 by KSOLANO

[Ron/Sharon 0]

Hijacker

If you do do what your asking about I hope you have a great poker face. Good luck with what you decide.

Ron

[Danu 19]

So if we did get married and we proceeded with the process you described, after however long they allowed me to stay, I would come back to Canada. Would I not be able to stay there? If not and I wanted to go back to visit while everything was being processed, would I need to tell them that we are in the process of getting the CR1 Visa? What type of proof would I need to show I have ties with Canada still? I have no job at the moment I just finished high school and live at home with my mom.

You can get married and start the process down there for sure, but you would have to come back to do your medical and have the interview. You can try to visit but with your lack of ties even this one they might be leary of allowing you too much time down there for fear you wouldnt come back. Telling them you are in the process of the CR1 and showing them your NOA of filing might help, but with no job, no lease etc visiting for an extended period of time might be hard. We have had a few people turned away at the border for this, and telling them he is your boyfriend instead of your fiance wouldn't help in that case, as its the lack of ties to canada they would look at. Now you might be ok if you get a border guard who isnt too picky, but I've seen quite a few stories on here about being turned away because they said they were going to stay for the 6 months and didn't have enough proof that they would go back. Others have been given shorter times (like 2 weeks or 2 months) on a B2 stamp, so they couldn't stay as long as they wanted.

Edited May 14, 2010 by Danu

[KSOLANO 0]

You can get married and start the process down there for sure, but you would have to come back to do your medical and have the interview. You can try to visit but with your lack of ties even this one they might be leary of allowing you too much time down there for fear you wouldnt come back. Telling them you are in the process of the CR1 and showing them your NOA of filing might help, but with no job, no lease etc visiting for an extended period of time might be hard. We have had a few people turned away at the border for this, and telling them he is your boyfriend instead of your fiance wouldn't help in that case, as its the lack of ties to canada they would look at. Now you might be ok if you get a border guard who isnt too picky, but I've seen quite a few stories on here about being turned away because they said they were going to stay for the 6 months and didn't have enough proof that they would go back. Others have been given shorter times (like 2 weeks or 2 months) on a B2 stamp, so they couldn't stay as long as they wanted.

I still have an active bank account would that help? What is an NOA? Would I receive that while I was still there? How long does the process usually take? When I went to visit last time I was still in the same situation I was visiting for a month and a half (march 19-may 5) They border officer said I had to strong ties and I was issued the I-94. I came back 4 days before the date stamped. Would this help me at all in proving I can be trusted to come back to Canada?

[Danu 19]

I still have an active bank account would that help? What is an NOA? Would I receive that while I was still there? How long does the process usually take? When I went to visit last time I was still in the same situation I was visiting for a month and a half (march 19-may 5) They border officer said I had to strong ties and I was issued the I-94. I came back 4 days before the date stamped. Would this help me at all in proving I can be trusted to come back to Canada?

Actually they would probably do the same thing again due to lack of ties, give you a date to leave by, but it helps that you havent overstayed your time. The NOA is the letter they send you to say they have recieved your file, usually takes about a week or so to get, so it would depend on a few things. You would need the marriage cert before you can send it in, and that takes anywhere from the same day to a few weeks depending on where you get married. Depending on how long you are allowed to stay you may or may not get it while you are still there. The process for a CR1 takes about 10 months I think? I would take a look through the CR1/IR1 forums and guide and through the Canadian posts on it to find out rough timelines . If you have any questions once you have read the guides, make a new post so that the CR1's from this board can better advise you on things! Good luck!

[KSOLANO 0]

Actually they would probably do the same thing again due to lack of ties, give you a date to leave by, but it helps that you havent overstayed your time. The NOA is the letter they send you to say they have recieved your file, usually takes about a week or so to get, so it would depend on a few things. You would need the marriage cert before you can send it in, and that takes anywhere from the same day to a few weeks depending on where you get married. Depending on how long you are allowed to stay you may or may not get it while you are still there. The process for a CR1 takes about 10 months I think? I would take a look through the CR1/IR1 forums and guide and through the Canadian posts on it to find out rough timelines . If you have any questions once you have read the guides, make a new post so that the CR1's from this board can better advise you on things! Good luck!

thanks so much for your help!

[KSOLANO 0]

I just had one more question I forgot to ask, if we do go for the CR1 Visa can I stay with him while during the process up until I have to return to Canada for my medical examination and interview? I would then just wait for the approval in Canada. It will most likely cause an overstay though, will this affect my process?

Edited May 15, 2010 by KSOLANO

[Danu 19]

I just had one more question I forgot to ask, if we do go for the CR1 Visa can I stay with him while during the process up until I have to return to Canada for my medical examination and interview? I would then just wait for the approval in Canada. It will most likely cause an overstay though, will this affect my process?

It might, I wouldn't risk it. Plus if they give you a shorter time and you stay longer than that you might end up with some issues being flagged on your file. Its just easier to stay the 180 days or whatever time they give you and then come back.