can I apply for AOS as a Canadian without a visa?

[ValerieA 350]

VWP entrants must sign an I-94W when entering the US. The I-94W contains the "Waiver Of Rights" declaration that makes VWP entrants ineligible to appeal any decision by CBP or contest any deportation proceeding. Canadians entering as tourists do not have to sign this declaration, so they can appeal an AOS denial. Their risk of denial, and their available recourse if they are denied, are the same as anyone entering with a tourist visa.

+1

[Kittyfang 6]

An overstay changes everything. In the OP 's case I'd get married, go back to Canada and apply for CR-1. Yet another Canadian in another thread asks the same question but in his/her case they have been in the US visiting for like a year or something and didn't realize that was bad. If they did as I suggested to this OP well that guy/gal would get banned on leaving the country. So they would have to apply for the CR-1, get denied and then file a waiver and that would take about a year in Canada plus those waivers are hard to get approved. A lot of people in that case end up getting a lawyer to help.

So if getting banned on leaving is an option....heck no! Do AOS and hope for the best. If no ban risk then why risk getting AOS denied? Of course the risk is slim (on getting AOS denied, ban ALWAYS happens on overstay) but I personally would not risk it.

Well, there's two things in here. First, if the person has been in U.S. longer than they should (overstay), then there's no point going for CR1, they would have to go for the AoS right away. And, as for getting denied, I have been reading into all this for about a year, and I have seen very few people getting denied, if they were, it's for something big.

So, yeah, in the OP's case CR1 might be better, if they don't mind getting denied, but AoS is still a valuable and legal option. I was just wondering what the implications were if the beneficiary is an overstay and they get denied.

[Simmy 3]

An overstay changes everything. In the OP 's case I'd get married, go back to Canada and apply for CR-1. Yet another Canadian in another thread asks the same question but in his/her case they have been in the US visiting for like a year or something and didn't realize that was bad. If they did as I suggested to this OP well that guy/gal would get banned on leaving the country. So they would have to apply for the CR-1, get denied and then file a waiver and that would take about a year in Canada plus those waivers are hard to get approved. A lot of people in that case end up getting a lawyer to help.

So if getting banned on leaving is an option....heck no! Do AOS and hope for the best. If no ban risk then why risk getting AOS denied? Of course the risk is slim (on getting AOS denied, ban ALWAYS happens on overstay) but I personally would not risk it.

That makes sense. Thanks. Honestly this has been one HARD choice to make, because, with my laptop in hand, I'd much rather stay in the US and work here for clients back in Canada. I have a house in Canada that is self-sustaining (good roommates). Overall I'd rather just stay here than go back to Canada just to apply for the CR-1, then risk not being able to make it back as a tourist while waiting for the CR-1 process. (hence my question above about applying for the CR-1 while here). It's clear to me now that I am legally fine with going the AOS process. But given the fact that we only met last spring, and that I'm getting married down here as a visiting tourist, it feels like I'll will naturally be suspect. Just for that reason alone, CR-1 will be my route.

Again, many thanks!

[LiLMermaid 2]

Wow! I've been on some helpful forums on the net before, but this one really takes the cake!! You guys rock!!!

Ultimately it sounds like both would work out fine for me, but that AOS would be just a bit too risky for me, if only for my own nerves. It looks like I'm going to go the CR-1 route. But I'd like to re-state this question (modified): is there anything stopping me for making the application while here in the US, and continuing to visit my girlfriend until the Montreal date comes up? My roommates in Canada can forward me the mail. In this case, I'm not asking if I can get away with it (because I'm really not into lying on the forms about when I was here) -- I'm asking if they would even mind. ie. perhaps this is legally acceptable? It does sound like people do this.

Also would still like to seek confirmation from anyone that it's okay to work via laptop (for Canadian clients) while here as a visitor, as I've read conflicting info on this.

Oh and some good news -- we got our marriage license yesterday. We're going to get civil married sometime next week (with a full-on ceremony next summer). Looks like it'll be time to start my timeline soon!

Using the OP topic....in his

Bless,

Simmy

As for working from your laptop....thats the joy of being mobile as long as everything is Canadian based. It would be no different if you went to anyplace else in the world on vacation and brought your laptop and continued to work. You can file the CR-1 while you are here but you can only stay in the US for 6 months in a one year period. Anything over that can result in a ban,well, technically its an overstay of over 180 days gets you 3 years but do you really want to have to explain later why you overstayed even a little bit? I can't recall how long you said you have been here already but I think that it was a fairly short period. I would count on spending at least a few months down the road back in Canada. Montreal has been pretty slow on the interviews for the past year but USCIS has sped up so its hard to say exactly how long its going to take. You'll need the time to pack up anyways, tie up loose ends, visit family and friends, go for a medical, gather paperwork, prepare for the interview....

good luck!

edited to add: I suggest going over to the Canadian forum for CR-1 specific questions. A lot of knowledgeable and helpful people there. I applied for K-1 so my CR-1 knowledge is general. They can give you current timelines regarding Montreal, help with forms etc.

Edited July 28, 2010 by LiLMermaid

[Simmy 3]

ValeriA -- I just wanted to wish you good luck on your interview tomorrow! I'm sure it will go great, but do let me know here, if you will, how much they ask you about intent.

LilMermaid -- thanks for the Canadian forum suggestion Yes, I've only been here for 5 weeks. If I apply for the AOS (and now that I've heard how much shorter it is than the CR-1 process for Canadians, I AM reconsidering it), I'm looking at another 3 months here -- so, not an overstay. But long enough that I will need to admit to them that I worked via laptop while here, as when I came in I told them I had enough money to carry me through mid-August and showed them my train trip back for mid-August, and I can only assume they wrote that down. Which brings us to...

VeleriA and LilMermaid -- here's the contradiction I'm talking about. On one hand you have lawyers saying "under no circumstances can you work while as a visitor, even for clients back home" and on the other hand you have colloquial wisdom saying "of COURSE you can work via laptop for clients back home". It's such an important question to me, that I've started a separate thread for it in the Canadian forum, in case you're interested.

[visacat 1]

VWP entrants must sign an I-94W when entering the US. The I-94W contains the "Waiver Of Rights" declaration that makes VWP entrants ineligible to appeal any decision by CBP or contest any deportation proceeding. Canadians entering as tourists do not have to sign this declaration, so they can appeal an AOS denial. Their risk of denial, and their available recourse if they are denied, are the same as anyone entering with a tourist visa.

This is interesting as now under the VWP you no longer are required to sign the I-94 when entering the country you can simply enter with your VWP documents which are filled in online with ESTA so I wonder if this affects the "Waiver of Rights"?

[Krys & Nova 2]

Awesome, thanks Bob 4 Anna! This comes as very good news -- I did read somewhere on the internet a while ago that one can't even work for clients back in their home country while visiting the US, ie, that one simply cannot work *period* without a work visa. So if anyone else could confirm what Bob 4 Anna says, ie. that what I read was wrong, that would be a welcome assurance.

Thanks also for this. That clarifies things. I've read on this site that people *do* do this, but I'm realizing it may be a greater risk than I had assessed. I'd also appreciate any further confirmations from any others on this.

So the question of AOS vs CR-1 for me is coming down to these points:

time -- I still haven't heard from anyone regarding the timeline on AOS processes, but I'm gathering it's maybe a few months shorter than the CR-1 process? winner: AOS

money -- CR-1 is cheaper, but I'd need to fly to Montreal for the interview (from the west coast). Conversely, I am unclear as to where the AOS interview would take place, but I am assuming it would be somewhere in the US (not Canada) and somewhere on the west coast. If this assumption is correct (can anyone confirm?), then the cost of the CR-1 process including the airfare would actually be about the same as the cost of the AOS process. winner: neither

chances of success -- higher with CR-1, as there is a certain risk with the AOS process for someone in my situation, but arguably this is a small risk.: winner: CR-1

ins and outs -- with AOS, I'm forced to stay in the U.S, unless I apply for A.P., but on the flip side, I also *get* to stay here with my girlfriend. With CR-1, I am forced to return to Canada to make the application, but as a Canadian I can go between the US and Canada while the CR-1 is in process, though there's a small chance that the border guard will deny me anyhow. winner: AOS

If anyone has anything to add to that, I'd super appreciate it!

Simmy

I'll just give my 2 cents here...

What you want to do is perfectly legal, please do not let anyone on this site scare into thinking it is not. As you can see from my tiemline, I just completed my interview and we were approved.

the timeline for my AOS was: 3 months and 3 days.

As for working in Canada while living in the USA, let me inform you of the TAX ramification. You will be taxed in both countries...

I'll just give you heads up as what we did.

I was telecommuniting as well. I did so up until the time I filed my AOS at the beginning of April. Something that not alot of Canadians know is: WE ARE ENTITLED TO EI SINCE WE ARE FOLLOWING OUR SPOUSE TO ANOTHER COUNTRY.

You are going to want to file for an I-765 (work authorization) and have it expedited. They will review your claim and issue you a EAD card on the grounds of loss of income.

That being said, enjoy your future wife. The important thing in this process is to be 100% honest. On my paper I mentioned that I worked and it NEVER even came up in the interview.

Krystal

PS. If you need anything, please feel free PM me.

[sciencenerd 56]

It sounds like you've decided to go the CR-1 route, but doing an AOS is perfectly legal and not remotely fraudulent. If you entered as a tourist with the intention of going home, were honest with border officers, and decided to get married and stay here after you were already in the country, you are fine. A lot of folks here try to scare people off from doing this, but it is perfectly legit.

[ValerieA 350]

I have to agree with sciencenerd, Simmy. A lot of people on here are very negative about the AOS from a non-K visa process. I did my interview yesterday, and not one word was mentioned about intent. It was about a 10 minute interview, and I was approved on the spot.

[Simmy 3]

HA!! You know it's so funny because I just made my call to USCIS and I asked them if AOS was an option for me. Strangely, the woman on the phone didn't seem to understand that Canadians visiting the US without a visa are not technically on the VWP but on a special arrangement. So I have to take what she said after with a grain of salt: she said that I cannot apply for AOS as someone on the VWP, ie. without a visa. Is she just plain wrong?!

The funny thing is that just after the call, I talked with my fiancee (we're getting married next week) and was so happy to finally say, "okay, this is what we're doing" (in reference to the CR-1 process and the timing of things) and right while we were having that conversation sciencenerd comes in with his comment as if to say, "look, we know here on the forum what's up and the USCIS woman is actually wrong". Frankly, if AOS really is a relatively secure option (and it sounds like the worst case scenario is a rejection, and a repeallable one at that, as long as I'm not fraudulent), then that works out better for us, so here I am undecided again!

So let me ask this really simply: have you or anyone you known applied for AOS and succeeded *without* having obtained a Visa to be in the U.S. in the first place? Most helpful would be if there are any confirmed cases of Canadians who came under the special US-Canada relationship (ie. no visa, and not actually the VWP), ie. simply drove across the border, decided to get married, and then successfully went through the AOS process. It sounds like there are such cases, but I'd love some confirmation on that specific set of circumstances.

Thanks again y'all!

Simmy

[ValerieA 350]

HA!! You know it's so funny because I just made my call to USCIS and I asked them if AOS was an option for me. Strangely, the woman on the phone didn't seem to understand that Canadians visiting the US without a visa are not technically on the VWP but on a special arrangement. So I have to take what she said after with a grain of salt: she said that I cannot apply for AOS as someone on the VWP, ie. without a visa. Is she just plain wrong?!

The funny thing is that just after the call, I talked with my fiancee (we're getting married next week) and was so happy to finally say, "okay, this is what we're doing" (in reference to the CR-1 process and the timing of things) and right while we were having that conversation sciencenerd comes in with his comment as if to say, "look, we know here on the forum what's up and the USCIS woman is actually wrong". Frankly, if AOS really is a relatively secure option (and it sounds like the worst case scenario is a rejection, and a repeallable one at that, as long as I'm not fraudulent), then that works out better for us, so here I am undecided again!

So let me ask this really simply: have you or anyone you known applied for AOS and succeeded *without* having obtained a Visa to be in the U.S. in the first place? Most helpful would be if there are any confirmed cases of Canadians who came under the special US-Canada relationship (ie. no visa, and not actually the VWP), ie. simply drove across the border, decided to get married, and then successfully went through the AOS process. It sounds like there are such cases, but I'd love some confirmation on that specific set of circumstances.

Thanks again y'all!

Simmy

Yes, Simmy, she was just plain wrong. I am living proof of that. There is a reason that has been nicknamed the 'misinformation' line on this site. Regarding the visa - I'm pretty sure it doesn't make a difference, I will find the thread where someone came in from Canada and did not have their passport stamped, and were still successful adjusting. Check your passport, though, if they did stamp it, they wrote "B-2" on the stamp and that is your visa type.

[Simmy 3]

Oh, thanks for that advice, I didn't realize that I was actually on a B2 visa. It's just hand written there - "B2" with no stamp accompanying it. Weird, but I guess good enough.

[JimVaPhuong 4,863]

This is interesting as now under the VWP you no longer are required to sign the I-94 when entering the country you can simply enter with your VWP documents which are filled in online with ESTA so I wonder if this affects the "Waiver of Rights"?

No. The waiver is statutory and not contractual. The I-94W simply spells out the statutory requirements for the alien to acknowledge by signature. You make the same acknowledgment when you use the ESTA system.

[SaraDee 9]

Simmy,

I was in the same situation as you are in now when we decided to get married. No intent to get married when I entered the country. Actually, we didn't even meet till a week or two after I came here. I ended up staying to be with him and we decided to marry. When we got engaged we went to a few lawyers to ask what the best course of action would be and they said AOS. They said that it would take up to a year if I went back to Canada for it to go through and that there was nothing wrong with doing AOS. One actually went so far as to say that because I was Canadian they would not question us too much, so I think that Canadians are in fact scrutinized less whether it is K-1, CR-1 or AOS. None of the lawyers suggested that I do K-1 or CR-1.

I won't have my interview for a few months, but just wanted to let you know about my experience so far.

Sara

[sciencenerd 56]

Simmy - our situation is different because of an overstay, but my wife entered the country through Canada via the standard route (no visa - or a default B2, but no paperwork). We had no intention of getting married at that point, but had been together for quite a while by then. Our interviewer also mentioned nothing about intent. Our lawyer said the only thing the overstay changed was that we couldn't leave the US during the application process (advanced parole). Many of the Canadians here I know actually did things similarly and were also approved. Everybody mentions this intent thing, but that's really just because if you lied to the border (said you were coming for a visit when you were really coming to immigrate) you are guilty of immigration fraud. If you were honest to the border folks, it doesn't matter. I even told our lawyer that we didn't have intent and she said it really didn't matter if we didn't misrepresent anything to border control. I have yet to hear of intent being an issue in an interview (maybe it happens, but its certainly not the norm even in relatively quick marriages). You really would be fine in this regard.