Canadian Marrying US Citizen in US

[Fluke 0]

So I have been searching long and hard for the answer to this and I am hoping you can help.

I came to the US as a visitor from Canada(never received any visa/stamp/i94 because all I need is to show my passport before driving over the border). During my visit, I was proposed to by my now fiancee. It was a surprise, but we have been dating for 3 years and I accepted. We are having a low-key event and we plan to do it very soon by getting married on this current visit.

After doing some research and not finding much, I was wondering if would it be possible to stay in the US while the adjustment of status paperwork was being processed? If so, is an I-130 necessary since I am already here?

[Kathryn41 3,205]

So I have been searching long and hard for the answer to this and I am hoping you can help.

I came to the US as a visitor from Canada(never received any visa/stamp/i94 because all I need is to show my passport before driving over the border). During my visit, I was proposed to by my now fiancee. It was a surprise, but we have been dating for 3 years and I accepted. We are having a low-key event and we plan to do it very soon by getting married on this current visit.

After doing some research and not finding much, I was wondering if would it be possible to stay in the US while the adjustment of status paperwork was being processed? If so, is an I-130 necessary since I am already here?

First, congratulations on your engagement . The good news is that, under the circumstances you have described, yes - you are allowed to apply for Adjustment of Status and remain in the US while it is being processed. The bad news is that you won't actually be able to return to Canada until after you have filed for the AOS and received either your approved green card or another document called an "Advance Parole" - which is permission to travel outside of the US AND return. So you will have to do any tie up of loose ends in Canada through a distance, through friends and family or wait those months until you receive the necessary documentation.

If you leave the US after you are married and before you apply for the AOS then you are no longer allowed to remain in the US to do the AOS but must pursue an immigration visa through the US Consulate in Montreal. It is only because you had no plans on getting married when you entered the US on this visit and are getting married on this visit that you are allowed to change your status from visitor to Permanent Resident through marriage to a US Citizen.

Yes, an I-130 is still necessary. The I-130 is a petition from your husband to the government requesting permission for you to apply to become a Permanent Resident as his spouse. The AOS needs to have some basis for approval - and that is the I-130 petition from the US citizen. You would complete the I-485 application along with all of the supporting paperwork and documents requested and then send in the I-130 together with the I-485.

One thing you will have to do which will be a hassle is to obtain a Canadian police criminal record check. If you were in Canada you could do this easily by going to the RCMP or sometimes local police station and requesting a Canada Wide name search which you would get back within a few days. You can't do this as if you leave the US you are no longer eligible to adjust status and remain in the US. Being outside of Canada means that you do need to have a fingerprint security check, not a name check, and those take a number of months to be approved. So, I would start that process right away so that by the time you are ready to apply for the AOS you may have the fingerprint security check back.

You may wish to visit this forum and read over the information here - it is the Visa Journey forum for people who are adjusting status from visitor, work and student visas through marriage to a US citizen - which is what you are going to do. http://www.visajourn...-tourist-visas/

Edited May 15, 2010 by Kathryn41

[Fluke 0]

Thank you for the well wishes and the information.

Another question came to mind. Looking through the checklist, you require an I94. As you know the canadian/us border is very lenient and you just have to show your passport. How do you make up for this with your application?

Also, say I have been here for one month and my paperwork gets drawn out, what happens when I approach my max duration as a visitor?

[Kathryn41 3,205]

US Immigration is familiar with the fact that most Canadian visitors do not have I-94s. Where ever it asks about an I-94 just write: 'none- Canadian visitor'. It will be fine.

When you enter as a visitor from Canada, unless told otherwise, you are allowed up to 180 days presence in the US. If you have not applied for your AOS before those 180 days expire, then you will be here 'without status', which means illegally. If you gather 180 days of 'out of status' time, then if you do leave the US without having a green card, you will trigger an automatic 3 year ban upon re-entry.

Once you file for the AOS, however, your status changes and you are once again legally authorized to be in the US pending a decision of the application. If you have any out of status time, it will be forgiven when the AOS application is approved and you get a greencard - but not before then. It is possible that you might accumulate some out of status time before you are able to file for the AOS (eg. the RCMP fingerprint security check - do get that started ASAP). Start reading over the AOS application forms now and make a list of all of the things you need. Start getting these done even before the wedding since you know you will be getting married, so you can get the process started. If you don't have a long form birth certificate (lists both parents' names) you will need one of those as well, and sometimes it can take a while to get a copy. You will need to have evidence of your immunization history for the immigration medical so that is something else you should start working on now.

When you file for the AOS you will receive back a "Notice of Action" (NOA1) receipt that states your application has been received and is being processed. Make a copy of that and carry it with you as proof of your legal status in the US. As a Canadian with your passport, you are unlikely to be targeted as an immigrant but it is still important that you carry proof of your citizenship and status with you.

Edited May 15, 2010 by Kathryn41

[Flames9_RN 358]

I see you have found VJ!! Kathryn gave you great advice! As well traffic on this board is usually very slow on the weekends, picks up during the week days!