Already married going to US as visitor to file AOS

[Hugglebuggles 60]

I'm sorry, I said J-1, but I meant F-1.

The biggest problem with AOS, is the consequences of a denied application. There is no appeal system if you adjust your status from a visitor. You would need to go home, abandon your school plans, and possibly be issued with a ban that would not allow you to even visit the US. It's just not worth it.

This is a little complicated, I agree! Maybe some outside consul would help. I wish you the best of luck!!

[LIFE'SJOURNEY 970]

I don't have a J-1 anymore that was last year. The school applied for an F-1 student visa. I discovered that if I'm in the country as a visitor and let them know I intend on attending school on an F-1 visa I can enter and file another form to change status to F-1 while in the country because the F-1 isn't valid until 30 days before you start your study period. I found this on the US department of state website.

I think I've gathered from the responses that I should not file for AOS because it will seem like I entered the country with the intent to immigrate despite the fact I am going to school. and is married to a USC.

The purpose of AOS is to migrate to be with your family, but what you have done is put the horse before the cart.

Yes he's in the US and I'm in Canada. I think I need to find an immigration lawyer This is ridiculously complicated.

It is rather simple, just file for the CR1 if you wish to migrate to the US to live as a resident. The school cost is secondary in this process.

[sciencenerd 56]

I'm sorry, I said J-1, but I meant F-1.

The biggest problem with AOS, is the consequences of a denied application. There is no appeal system if you adjust your status from a visitor. You would need to go home, abandon your school plans, and possibly be issued with a ban that would not allow you to even visit the US. It's just not worth it.

This is a little complicated, I agree! Maybe some outside consul would help. I wish you the best of luck!!

There's a lot of problems for the OP in trying to AOS from being a visitor, but it's not true that there's no appeals process. There is no appeals process for people who entered on the VWP, which does not apply to Canadians. Visitors from Canada or visitors with a visa (B1/B2) can appeal denied applications. This is at least how our lawyer explained it to us.

[SunDrop 59]

I was on a J-1 last summer when I got married and returned to Canada to finish school. I had no intention of staying and getting married was not planned either. I applied to graduate school now and the school applied for a F-1 visa for me and I am going down there without the intent of staying and I don't plan on leaving because I'll be in school for or 15 months.

The only problem arises because I'm just trying to avoid out of state tuition and the only way to get in state tuition through my husband is if I file the AOS paperwork. I'm not in the country now and if I went the K-3 route I wouldn't be able to attend school because it wouldn't be processed in time and my primary purpose is to attend school.

So I should just not file for the adjustment of status and stay on the F-1 visa for 15 months? Then after I finish school just return to Canada?

I think the reason people are challenging your plans is because it reads as though you're trying to have your cake and eat it. Your situation is not complicated per se, but it could be considered ambiguous when it comes to immigration regulations.

Everything you've done so far seems to be absolutely legal and above board.

There is no reason why you cannot try and get an F-1 visa, and you are correct that people do enter on F1 visas and AOS from that visa. However, they are not usually married to a USC at the time of applying for said F-1. This means when they applied for the F1, they were honestly able to say they did not intend to marry an USC, and that the primary/ sole purpose of obtaining a visa was for studying. You are already married and are planning on AOSing, regardless. When considering a visa application, immigration authorities want to know what the primary purpose of the visa is. Because you're already married, the likelihood is they will assume you are applying for an F-1 as a way of circumventing the traditional route for procuring residence as the immediate relative of a US citizen. This is why people here are suggesting it would be denied.

You cannot simply enter the US with the intent of AOSing and then carrying on your presence in the US on the basis of your F1 visa.

I've just been through the 'in-state tuition rate through your spouse' process in Arizona. You have to meet more than just being married to an in-state resident to qualify. I needed to demonstrate that I entered on an appropriate visa and that it was still valid. In the case of my K-1 visa, this meant my I-94 was still within the 90 days. If that period had expired, I would have needed to provide evidence of either my EAD or my GC. I had to sign a declaration that I was a legal resident, in possession of a valid visa OR had to sign a section that said I did not wish to be considered for either Financial Aid or In-state tuition.

If you choose (as you should) to ensure that you are immigrating in a legal manner, have your husband submit a CR-1 petition for you. The upside is that you have your GC within a short period of time after entering and do not need to AOS. The downside is that you have to process it through the US Embassy in Montreal (I think it is for CR-1s, that needs confirming).

You shouldn't be applying for an F1 visa with the intent of AOSing because you could be misrepresenting yourself when you apply. This would turn around and bite you very hard indeed.

So in short, the only way of qualifying for in-state tuition through your husband's status is to file a CR-1 petition. Entering on a visitor or student visa with the intent of adjusting will mean potentially obtaining said visitor/ student visa potentially through misrepresentation which carries very severe penalties.

You cannot go on what is OK according to the college as far as your marital status, because they are neither very knowledgeable of the immigration process, nor liable for the consequences of doing it the wrong way.

[trinbajan 0]

I think the reason people are challenging your plans is because it reads as though you're trying to have your cake and eat it. Your situation is not complicated per se, but it could be considered ambiguous when it comes to immigration regulations.

Everything you've done so far seems to be absolutely legal and above board.

There is no reason why you cannot try and get an F-1 visa, and you are correct that people do enter on F1 visas and AOS from that visa. However, they are not usually married to a USC at the time of applying for said F-1. This means when they applied for the F1, they were honestly able to say they did not intend to marry an USC, and that the primary/ sole purpose of obtaining a visa was for studying. You are already married and are planning on AOSing, regardless. When considering a visa application, immigration authorities want to know what the primary purpose of the visa is. Because you're already married, the likelihood is they will assume you are applying for an F-1 as a way of circumventing the traditional route for procuring residence as the immediate relative of a US citizen. This is why people here are suggesting it would be denied.

You cannot simply enter the US with the intent of AOSing and then carrying on your presence in the US on the basis of your F1 visa.

I've just been through the 'in-state tuition rate through your spouse' process in Arizona. You have to meet more than just being married to an in-state resident to qualify. I needed to demonstrate that I entered on an appropriate visa and that it was still valid. In the case of my K-1 visa, this meant my I-94 was still within the 90 days. If that period had expired, I would have needed to provide evidence of either my EAD or my GC. I had to sign a declaration that I was a legal resident, in possession of a valid visa OR had to sign a section that said I did not wish to be considered for either Financial Aid or In-state tuition.

If you choose (as you should) to ensure that you are immigrating in a legal manner, have your husband submit a CR-1 petition for you. The upside is that you have your GC within a short period of time after entering and do not need to AOS. The downside is that you have to process it through the US Embassy in Montreal (I think it is for CR-1s, that needs confirming).

You shouldn't be applying for an F1 visa with the intent of AOSing because you could be misrepresenting yourself when you apply. This would turn around and bite you very hard indeed.

So in short, the only way of qualifying for in-state tuition through your husband's status is to file a CR-1 petition. Entering on a visitor or student visa with the intent of adjusting will mean potentially obtaining said visitor/ student visa potentially through misrepresentation which carries very severe penalties.

You cannot go on what is OK according to the college as far as your marital status, because they are neither very knowledgeable of the immigration process, nor liable for the consequences of doing it the wrong way.

Wow that was really helpful. Ok if I file for the CR-1 what are the chances of it going through before I need to start school in August?

[SunDrop 59]

I think I need to find an immigration lawyer This is ridiculously complicated.

Sorry, all the above dialogue happened after I hit 'reply' and got distracted by kiddy, hubby and dog! lol

It's not actually complicated at all. I can absolutely relate to how it seems complicated right now because I was in a similar situation about 2 years ago. No, I wasn't married to a USC already but I was trying to navigate the whole studying/ living/ AOSing minefield because my then boyfriend (now hubby) was reluctant to get married without having lived together for a couple years beforehand. I ended up driving myself nuts with stress and called BS on him. lol

So my advice at this point is stop, take a breath and slow everything down. From reading what you've put, the most important thing is the cost of studying. This means the F-1 is not the right visa for you, and it's true that your marriage to a USC is going to make obtaining an F-1 difficult.

And this is where the 'complicated' situation boils down to a simple fact: you are highly unlikely to be able to start studying in August, unless CR-1 processing times have got really good through Montreal alluvasudden.

Therefore, get the CR-1 ball rolling asap. The delay in starting your studies is VERY frustrating (been there, done that) but the good news is that when you DO get your CR-1 visa, you won't be paying international/ out of state rates.

[Hugglebuggles 60]

Solid advice SunDrop!

As far as CR-1 processing times in Canada, they are not good. All CR-1 interviews do take place in Montreal, and although they have improved waiting times, things are still pretty slow. I'd look at about 9-12 months before you would be able to move to the US, unfortunately.

There's a lot of problems for the OP in trying to AOS from being a visitor, but it's not true that there's no appeals process. There is no appeals process for people who entered on the VWP, which does not apply to Canadians. Visitors from Canada or visitors with a visa (B1/B2) can appeal denied applications. This is at least how our lawyer explained it to us.

Well either the general consensus on this board is wrong, or your lawyer is wrong. I'm not going to make the judgment!

Edited February 3, 2011 by Hugglebuggles

[SunDrop 59]

Wow that was really helpful. Ok if I file for the CR-1 what are the chances of it going through before I need to start school in August?

Have a quick search through the CR-1 immigration timelines through the relevant embassy/ consulate. I can never remember whether it's the K-1 or the CR-1 that is only through Montreal. One or the other can also be interviewed through Vancouver(?)

Montreal, sadly, is infamous for being a really slow embassy.

[SunDrop 59]

Solid advice SunDrop!

As far as CR-1 processing times in Canada, they are not good. All CR-1 interviews do take place in Montreal, and although they have improved waiting times, things are still pretty slow. I'd look at about 9-12 months before you would be able to move to the US, unfortunately.

Well either the general consensus on this board is wrong, or your lawyer is wrong. I'm not going to make the judgment!

LOL I keep cross-posting with people *grin*

On the appeals note, which is somewhat of a sidetrack so apologies to the OP, but VWP entrants have never had a right to appeal, whereas B1/2s have, if their AOS is denied. Not au-fait enough with Canada's special regulations to comment on their appeals right. However, what has changed dramatically recently is certain areas in particular (AZ being one, incidentally) have been following a growing trend to automatically deny all AOS applications from VWPs. If memory serves me right, it was the San Diego director who actually issued a memo making this the rule, where it used to be the exception.

[trinbajan 0]

OK so AOS bad idea.

What if we file the I-130 and file for a K-3 visa so I can enter the country while it pends. I think I will still have to defer my entry to grad school but I should be allowed in the country. I swear the Canadian immigration website is so much less complicated.

[Danu 19]

Yup, if you file the K3 or the CR-1 you can still enter while its pending, just need to have ties to Canada if the border guards ask for it (rent/job/bills etc). You won't be able to be out of the country for more than 6 months at a time, so that should get you through one semester, but for either the K3 or CR-1 (which they have been just doing CR-1's lately because the K3's were for when it was faster...plus the CR-1 gets you your GC right away!) you will have to come back to Canada anyway to finish processing because you will have to do the interview and medical. If the time line right now is about 9-12 months, if you apply now you might be able to make it for winter start classes, or at very latest, spring.

[Krikit 1,164]

Have a consult with a couple of lawyers who are familiar and have experience with the non-immigration visas, as none of us here are in the legal profession. There's a huge practice in the Toronto area (which I can't recall the name of at the moment... sorry). I'd lean towards speaking with the Canadian lawyers, first. Also have a read in the Adjustment of Status From Work, Student, and Tourist Visas section.

Moving from the Canada forum to General Immigration Discussion. Welcome to VJ, and all the best.

Edited February 3, 2011 by Krikit

[Abby62 23]

Yes he's in the US and I'm in Canada. I think I need to find an immigration lawyer This is ridiculously complicated.

Sounds like this is the intelligent way to go, listening to what people have to say in a forum in your case may not be the best way. VJ has lots of knowledgable people here and not so knowledgable people, but your case just seems too complicated and you don't want to make a bad judgement/choice based on an internet forums advice.

Good luck and let us know how you make out.

[Aztec&Taino 144]

Ok I'm so confused about all of this. I got married last summer kind of as a spur of the moment while I was visiting my boyfriend in the US on a J-1 visa then I returned to Canada about a week or two later to finish my degree. Now I'm applying to school down there and they're filing for a F-1 visa for me but I wanted to enter the US early and then change my status to a green card holder in order to avoid out of state tuition and be able to work.

I know entering the US as a visitor with the intention of staying is illegal but I would be entering with the intention of going to school but also filing for an adjustment of status.

What is my best course of action here so that I don't get permanently barred from the US?

So, basically you are just interested in adjusting your status to be able to pay less money in tuition and to be able to work? Pretty convenient, but is your marriage legitimate? If USCIS determines that your marriage is fraudulent, you will not only not get permanent residency but you could be banned from receiving any future immigration benefits. Your husband MUST file the I-130 so that you could enter the US with a CR-1 visa. Since you are already married you cannot enter as a visitor and then file for adjustment of status based on the marriage that took place last summer. You cannot circumvent the rules and stipulations of the immigration processes. You know, the irony is that if your husband had filed the I-130 soon after your marriage took place your case may have resolved by now. You would be able to enter the US on the CR-1 and be able to legally work and be a permanent resident. Yet, you do not mention anything about your marriage and give the impression that you got married, on impulse, but is this marriage real?

[mikey78 6]

When you apply for F-1 student visa (which is non-immigrant visa) you will have an interview at the consulate and during this interview it will eventually come up that you have a US citizen spouse who lives in the US...and that for a consular officer reads as "immigrantion intent" you can't refute.

It still doesn't mean that you automatically are not eligible for F-1 visa but they definitely won't give it to you if they suspect that you will do AOS right after you enter the US. However, if you start consular processing now, meaning your husband will file a petition I-130 in the US and it gets accepted, and you will have that process running alongside your applying for a student visa later on, the consular officer might decide that you are trustworthy enough to complete consular processing and show up for an interview in Montreal. Doing it this way is not unreasonable at all because getting I-130 accepted and then starting and completing consular processing in Canada can easily take up to 1 year (Montreal is backlogged)...but if your school is starting in August there is no way you can make it if you are waiting for your green card (unless you will try to expedite the process, and as it seems, unless someone's life at stake, requests are denied).

I had an immigrant petition I-130 filed by my US citizen parent and already accepted by USCIS (which is a clear sign of immigrant intent) and as I was waiting for the consular processing to kick in, I unexpectedly received an offer from a college in the US to come and do some research with them. So I applied for J-1 and during the interview my consular officer just made sure I want to complete my consular processing in Canada and that I understand what the consequences of violating the law could be. Now, I am not saying that is what your interview will look like, just that it is possible to receive a non-immigrant visa while you have an immigrant petition pending.