concerned

[Newlyweds8488 0]

Hi

We got married saturday the 13th of august and are now about to file for the adjustment of status.. unfortunately i got some news that shook me a bit regarding a court date that was on the 16th regarding my son.

I was wondering how laws worked once you got married , if the whole fact of not being able to leave the country overrides canadian laws or whatever..

What happened was i received a letter from my sons biological father saying that on the 27th of september he will finally get to see him... now his father has a criminal record so he cant cross the border... and well the only way i assume he would be able to see my son is if they come and took him away ... but now that im married and my son is considered naturalised citizen because of that can they do that or do the laws of the united states and immigration prevent them... i would really like some imput so i can calm down and stop freaking out over here

thanks ...

[john_and_marlene 162]

Hi

We got married saturday the 13th of august and are now about to file for the adjustment of status.. unfortunately i got some news that shook me a bit regarding a court date that was on the 16th regarding my son.

I was wondering how laws worked once you got married , if the whole fact of not being able to leave the country overrides canadian laws or whatever..

What happened was i received a letter from my sons biological father saying that on the 27th of september he will finally get to see him... now his father has a criminal record so he cant cross the border... and well the only way i assume he would be able to see my son is if they come and took him away ... but now that im married and my son is considered naturalised citizen because of that can they do that or do the laws of the united states and immigration prevent them... i would really like some imput so i can calm down and stop freaking out over here

thanks ...

You seem confused about more than 1 thing here.

There is no law forbidding you from returning to Canada -- it just doesn't fit well with what you had planned.

Your son is not considered a naturalized citizen because you got married.

If you were Canadian before you got married, you are still Canadian

If your son was Canadian before you got married, he is still Canadian

If you attempt to keep you son in the US without permission of the father or order of a court, you will be committing a crime.

[Inky 1,111]

You both need green cards or AP before leaving the USA you both need to file AOS.

After getting the green card you can travel between Canada and the US.

Make an infopass appointment and bring the letters and maybe you can get emergency AP after you file both of your AOSs to travel to Canada with your son so he can see his dad then travel back to the USA.

[Harpa Timsah 13,258]

Your son is NOT a naturalized US citizen. Did you take your son the US without the father's permission and plan to keep him in the US when his father isn't allowed to go to the US?

[Brit Abroad 166]

If you've filed for AoS already, make an Infopass appointment for you and your son, and get a travel document or passport stamp that allows you to re-enter the US if you need to leave to resolve the custody/visitation issues with the child's father.

If you haven't filed, try calling the local service centre and see if they can assist you in getting some form of authorisation to leave and return. Whatever you do, do NOT leave the US before you know you can return, otherwise you'll need to file a spousal visa and wait it out all over again.

If bio-Dad is agreeable, then could your US husband escort him over the border and collect him again after visitation? Do you have any Canadian relatives who could/would escort your son if you met them at the border? Best of luck to you, OP.

[john_and_marlene 162]

Added Note: Very appropriate title for your topic. You should be concerned.

[HeatDeath 430]

You haven't given enough information to tell, but you and your son are almost certainly NOT, in any way, shape, or form, citizens of the United States. You can get yourself in a LOT of unfixable trouble, immigration-wise, by throwing around the word "citizen" in an imprecise manner. Don't do that!

I am assuming the following facts - that you and your son are Canadian citizens, and not citizens of any other country, and that you have both entered the US on some kind of legal status (fiancee K1/K2 visa or tourist visa/status). If either of these is not the case, disregard the following analysis:

You have, as you said, just married a US citizen, and are preparing to file for Adjustment of Status for both yourself and your son. When that process completes, you and your son will be Conditional Permanent Residents [ NOT US citizens! ]. At the moment, however, you are merely non-immigrant entrants on whatever kinds of visas you entered the US with.

When you file for AOS for yourself and your child, you will also file I-131 applications to obtain temporary travel papers for yourself and your child. When these arrive, 6-8 weeks after you file, you and your son will be able to leave the US and return. You are permitted to leave before you have your AP documents, but if you do, your AOS applications will be considered abandoned and you will not be able to return to the US without a spousal visa, which will requires months and hundreds of dollars to obtain. Let me make this very clear: US law does not prevent or forbid you or your son from leaving the US - it merely prevents you from returning to the Us unless you get your AP documents before you leave. Furthermore, US law DOES NOT override Canadian custody/visitation law in any way!

Here is your problem: Your son is not forbidden from leaving the US to see his father, but if he leaves before he gets his AP document he will not be able to return easily. Even if you were to file your AOS within the next few days, it is very much a roll of the dice whether or not the AP documents will arrive before September 27th. I do not know what the legal consequences will be to you if you do not travel to see your ex-husband on the 27th, but if you leave the US without AP documents, you will remain stuck in Canada for several months.

Your options, as I see them, are as follows:

A ) file for AOS as soon as possible, and then attempt to expedite your AP documents so that you have them by the 27th and can make the visitation date.

B ) in conjunction with A), attempt to negotiate with the ex-husband to push back the vistation date until you are more likely to have the AP documents.

C ) skip the visitation date, and take the legal consequences, which may or may not be considerable. Not recommended.

And above all, NEVER EVER refer to yourself or your son as US citizens until you have taken a citizenship oath in front of a judge!

Edited August 18, 2011 by HeatDeath

[john_and_marlene 162]

Whatever you do, do NOT leave the US before you know you can return, otherwise you'll need to file a spousal visa and wait it out all over again.

There are larger concerns than completing AOS without a separation. I think better advice would be: Whatever you do, do NOT break the law regarding child custody, visitation, and parental kidnapping. You don't have to break any laws to abandon an AOS application. Without parental consent or court order for the son, the AOS will be denied anyway.

[Newlyweds8488 0]

I am for one not claiming to be a us citizen i am just stating what i have been told... i came on a k1 fiance visa my son on a k2... and as for permission to bring my son i got it from a judge.

but the father and i are NOT on good terms and he is trying every way to take my son away now that weve moved on .. he hasnt been in his life at all and he finally wants to be in it ... he should have tried harder when we were still in canada..

I am aware that i cannot leave the us without abandoning our status and im worried that if something does happen is there anyway to make sur emy son stays in the us considering the immigration requirements etc..

[john_and_marlene 162]

I am for one not claiming to be a us citizen i am just stating what i have been told... i came on a k1 fiance visa my son on a k2... and as for permission to bring my son i got it from a judge.

but the father and i are NOT on good terms and he is trying every way to take my son away now that weve moved on .. he hasnt been in his life at all and he finally wants to be in it ... he should have tried harder when we were still in canada..

I am aware that i cannot leave the us without abandoning our status and im worried that if something does happen is there anyway to make sur emy son stays in the us considering the immigration requirements etc..

Sounds like you need to retain a family law attorney in Canada to represent your interests and work out reasonable details concerning times and travel. Does his visitation order specify where the visit or exchange takes place?

[HeatDeath 430]

Making sure your son stays in the US [as far as US immigration law is concerned] is easy - make sure neither of you leave the US without AP documents in your hands.

The complication is Canadian custody and visitation laws. I know far less about them than I do about US immigration procedure, but I know that if you violate court-ordered visitation rights, you can get yourself in a huge pile of trouble, particularly when an international border is involved. The phrase "felony kidnapping" has been applied in similar circumstances.

The fact that you have well-documented judicial permission to move the child to the US is a massive point in your favour, and should protect you from any really serious legal actions your ex-husband might take (like the aforementioned felony kidnapping charges).

As was said above, what you probably need most of all is a good family lawyer in Canada to examine your options, which may include filing a motion with the court that set the visitation date, pushing it back due to compelling extenuating circumstances. Or something like that. I'm not a Canadian family lawyer, and I don't even play one on TV.

The three things you absolutely must not do are, as has been said above, falsely claim US citizenship for you or your son, leave the US without AP documents, or violate any Canadian court orders regarding custody and visitation. It may require some fancy footwork with USCIS or the Canadian court to reconcile the latter two, but that's what you need to do.

Good luck!

Edited August 18, 2011 by HeatDeath

[Newlyweds8488 0]

Sounds like you need to retain a family law attorney in Canada to represent your interests and work out reasonable details concerning times and travel. Does his visitation order specify where the visit or exchange takes place?

the father has no visitation rights to begin with

[Newlyweds8488 0]

Making sure your son stays in the US [as far as US immigration law is concerned] is easy - make sure neither of you leave the US without AP documents in your hands.

The complication is Canadian custody and visitation laws. I know far less about them than I do about US immigration procedure, but I know that if you violate court-ordered visitation rights, you can get yourself in a huge pile of trouble, particularly when an international border is involved. The phrase "felony kidnapping" has been applied in similar circumstances.

The fact that you have well-documented judicial permission to move the child to the US is a massive point in your favour, and should protect you from any really serious legal actions your ex-husband might take (like the aforementioned felony kidnapping charges).

As was said above, what you probably need most of all is a good family lawyer in Canada to examine your options, which may include filing a motion with the court that set the visitation date, pushing it back due to compelling extenuating circumstances. Or something like that. I'm not a Canadian family lawyer, and I don't even play one on TV.

The three things you absolutely must not do are, as has been said above, falsely claim US citizenship for you or your son, leave the US without AP documents, or violate any Canadian court orders regarding custody and visitation. It may require some fancy footwork with USCIS or the Canadian court to reconcile the latter two, but that's what you need to do.

Good luck!

he is not my ex husband we were never married we just had a child together .. and well my lawyer in canada is impossible to reach ive tried all day and he isnt there.. but ty for the imput

[Lisa and Ian 7]

VISITATION: I'm just wondering.. Was your ex granted visitation from the court in Canada? Or is he only saying he's out of jail and now can see his son? If visitation is court ordered, my suggestion would be to attempt to talk to him and see if he is willing to push the date back. If he agrees, have him put it in writing and send it to you.

Does the visitation order, if there is one, outline the situation as it exists now, or would it need to be modified to show how many days the father is able to see his son and who is responsible for transporting him to or from Canada? Does it need to be modified?

I would say that you may want to retain a Canadian family law attorney, if you don't already have one, to figure out if anything can be done with visitation/access.

TRAVEL: Do what the others said and make an InfoPass appointment to get the document early..but my understanding is that this ONLY works if you have filed your AOS paperwork first. (correct me, people, if I'm wrong on that!)

If you are able to get an infopass appointment, take your evidence with you stating your need to have to cross the border (ie the court order/letter from your ex, etc).

Good luck!

[Brother Hesekiel 2,236]

After reading all of the posts, I wonder: what are you concerned about?

You were not married to the biological father of your son;

he has no custody;

he has no visitation rights;

he can't cross the border as he's a convicted felon; and

you and your son are living in the U.S. now.

What exactly is your concern?

If you don't want him to have contact with your son, all you have to do is write him a letter telling him that you moved on and suggest he does the same.