Married to a Canadian

[mcdode 0]

There are several ways family members can come to the US to live. Family members can sponsor other family members, but a mother sponsoring a married adult child is one of the 'lowest priorities'. That means it has a very long waiting time before the application is even reviewed and adjudicated.

The fastest way to come to the US through a spousal visa or sponsorship. That means that the US partner petitions for the foreign partner by filing an I-130 petition. If the foreign partner is already in the US and did not enter the US with the intention of staying, then the foreign partner is then allowed to file the I-485 - the request to change their status from the status they used to enter the US to that of Permanent Resident. At the same time, they file the I-765 which is the request to work with employment authorization (EAD) while waiting for status change approval. The I-485, if approved, will result in a green card. That is what a Permanent Resident receives to prove they are a permanent resident of the US.

Part of the process means that you must prove you are able to support your spouse financially by showing you earn at least 125% of the poverty level for a family of your size (you and our wife). That is the form I-864, also called 'Affidavit of Support". Your spouse needs to have an immigration medical done by an approved Civil Surgeon, which is the I-693.

There is no point in filing for the I-131. This is a travel permit called 'Advance Parole'. It will be given, however, but your wife probably cannot use it. She has been in the US since last November. Canadians are allowed to visit for a maximum of 6 months. That would have expired last April. She has been without legal status in the US since April. In October it will be 6 months in the US without status. If someone has more than 180 days of out of status presence in the US, then when they leave the US, they automatically incur a 3 year ban on re-entry (yes, this applies to Canadians as well). If that out of status time is over 1 year, then that equals an automatic 10 year ban on re-entry. The purpose of the I-131 is to provide permission to return to the US after travelling out of the US - but that permission is overruled by the out-of-status violation.

There are several things you mention that concern me, however, and you will need to address this with USCIS.

First, you mentioned that you got married in July and then mentioned that your wife moved to the US in November. You also mention that your wife is not living with you but is living with her mother. You then mention the possibility of separation and divorce and how this will impact any immigration process.

The questions you need to address are:

1) Did you wife intend to live in the US when she entered last November? What did she tell the border authorities when she crossed?

2) Why are you not living together? What is the state of your relationship with your wife? Is it viable?

3) Has your mother-in-law filed anything yet to sponsor her daughter?

The first question is vital since your wife was married before she entered the US. If she entered as a visitor with the intention of staying in the US, then this is considered visa fraud and is illegal. The fact that she is married to a US citizen when she made her last entry to the US can indicate 'intent' to a USCIS official. If she told the guards she was coming to visit and then applies to adjust status, they are likely to believe she misrepresented herself upon entry as well and this can be a significant problem as 'misrepresentation' - lying in any way, shape or form to USCIS or the border guards - is considered one of the most serious immigration violations and can lead to both deportation and a permanent ban upon re-entry, depending on the degree of misrepresentation.

To receive a green card based upon marriage, you have to prove first that the marriage is a valid one - and a viable one -, which means living together in the same address, co-mingling expenses, property and resources and being able to prove it through documentation (tax transcripts; shared bank accounts; shared credit cards; health plan coverage, insurance coverage; joint ownership/leasing of property - house/apartment/vehicles, etc.). Second, you have to show that the marriage was not entered into solely for the purpose of getting a green card and living in the US. This is where your current situation is looking like it might raise some red flags. Why does your wife not want to apply for her permanent residency through marriage? She appears she is going along with her mother if it has reached the stage you mention. This will definitely raise questions about the validity of your marriage.

Thirdly, it can 'muddy the waters' if more than one person files to sponsor another person to the US. USCIS is definitely going to want to know why the US mother is filing for the daughter rather than the daughter's US husband. The mother's sponsorship is one that will take years to happen and there is no way the daughter will be able to remain in the US without accumulating substantial illegal presence. Right now, I believe that your mother-in-law may actually have no grounds upon which to sponsor her daughter from within the US. Only a spouse can sponsor a family member who is 'out of status' in the US. All other sponsorships must be for people who have legal status in the US - and your wife no longer does since her de-factor visitor visa ended last April. That means that your wife will have to leave the US in order to receive a family sponsored visa - that is permission for her to enter the US - and if she obtains that through her mother, then she will have incurred substantial out of status time, incurring an automatic 10 year ban. A spouse can file for a 'hardship waiver' showing why it is a hardship to the US citizen to move to their partner's country rather than living in the US. Such a hardship waiver is almost impossible to obtain when the other country is Canada. I don't believe her mother will be able to file a hardship waiver.

Lawyers will tell people a lot of things they want to hear even though the lawyer knows the reality is not quite as represented. The lawyer wins in every case - he gets paid and the applicant suffers the consequences even if the lawyer is being less than ethical.

So, you asked what is the fastest and easiest way for your wife to get a green card?

If she did not enter the US with the intention of living permanently in the US last November, the fastest and easiest way for her to get a green card is for you to sponsor her by filing the I-130 and the I-485.

If the situation is different in any way from the above, then the fastest and easiest way for your wife to get a green card is for her to leave the US before she has 180 out of status days ( by the 1 year anniversary of the day she entered the US last November ) so she doesn't trigger the 3 year ban, you then sponsor her for a CR-1 visa by filing the I-130 petition in the US and when that is approved, she applies for the CR-1 visa through the US Consulate in Montreal. She is allowed to 'visit' during that time but she cannot live in the US until she gets her green card. With the CTR-1 visa, she would get her green card when she next entered the US.

I know this is a lot of information, but your circumstances can become very complicated very quickly. The most important information is your wife's intent when she last entered the US and how many out of status days she has already accumulated. The fastest and most realistic route for her to get a green card may entail her leaving the US. She will definitely have to leave the US if she is to remain eligible for sponsorship through her mother.

Her mother lived here and she would frequent often. She would stay in the US and cross into canada before the 6 months were up.

After I while I started dating her in 2009 and we got married in 2010 but now her passport expired. We are still married but

got in a little fight and start counceling tomorrow. She did not intend to live in the US until I came into her life. I did not

want her to go back and we did not marry for her citizenship. This is a true honest love marriage. We are just trying to do

the right thing between us but we have a meddling mother-in-law. I hope she did not file anything. Her mother thinks she is a

genius and lets an attorney do it for her. I dont know what this attorney thinks since he must know the whole situation. I am

trying to find out as we speak if they did or not. I will know more on that probably within the hour or so. I think she told

the border authorities she was crossing over to see her mom and boyfriend which i was then before we were married

[Kathryn41 3,205]

Ok - so she has not left the US since you got married lasts July? When did she last enter the US because add 6 months (180 days) to that date and she will have been in the US without legal status since then. It sounds like it is over a year already, so since it appears she did not enter the US with the intention of staying, she is allowed to remain in the US and you can file for her to become a permanent resident. It is absolutely vital that she does not leave the US, in fact, because doing so will trigger a 10 year ban,

Your mother in law does not understand the process if she thinks she can sponsor her daughter to remain in the US right now. Her daughter is out of status - the ONLY person who can apply for her to remain in the US is you - her husband.

Focus on getting the marriage back on course (I can appreciate that her mother does not help in this); go to counselling and keep proof of the counseling - payments, receipts, reports, anything like that- because you can also use those to help prove the validity of the marriage. Start collecting documents that do show how the two of you are a married couple.

Start reading over all of the information on this site about filling out the I-130 and the I-485. Your wife should read it as well. There are a number of forms and documents that will need to be obtained, and your wife will need to do an immigration medical. All of the forms, documents, attachments, etc. get submitted together at the same time. It is likely that the two of you will also have to attend an immigration interview where USCIS will evaluate in person how valid your marriage appears.

You may need a co-sponsor if you do not earn enough income on your own. This might be a role your mother-in-law can do (she and her husband). Your mother-in-law needs to know that the only way she can help keep her daughter in the US right now is to co-operate with you. She is not able to sponsor her daughter on her own while her daughter is out of status, and even sponsoring her for a family based visa will be at least 9 years and possibly more. It will be a moot point, though, as her daughter will now incur a 10 year ban if she leaves the US. The ONLY way she currently has available to get her green card is through you and your marriage.

It would probably be useful if your wife also signs up for an account on Visa Journey so she can read for herself what is being said. (It wouldn't hurt for your mother-in-law, to do the same, either ).

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

(I am also moving this topic to Bringing Family Members of US Citizens to America as both you and your mother-in-law are US citizens so that is the more correct forum location)

Edited September 25, 2011 by Kathryn41

[mcdode 0]

Ok - so she has not left the US since you got married lasts July? When did she last enter the US because add 6 months (180 days) to that date and she will have been in the US without legal status since then. It sounds like it is over a year already, so since it appears she did not enter the US with the intention of staying, she is allowed to remain in the US and you can file for her to become a permanent resident. It is absolutely vital that she does not leave the US, in fact, because doing so will trigger a 10 year ban,

Your mother in law does not understand the process if she thinks she can sponsor her daughter to remain in the US right now. Her daughter is out of status - the ONLY person who can apply for her to remain in the US is you - her husband.

Focus on getting the marriage back on course (I can appreciate that her mother does not help in this); go to counselling and keep proof of the counseling - payments, receipts, reports, anything like that- because you can also use those to help prove the validity of the marriage. Start collecting documents that do show how the two of you are a married couple.

Start reading over all of the information on this site about filling out the I-130 and the I-485. Your wife should read it as well. There are a number of forms and documents that will need to be obtained, and your wife will need to do an immigration medical. All of the forms, documents, attachments, etc. get submitted together at the same time. It is likely that the two of you will also have to attend an immigration interview where USCIS will evaluate in person how valid your marriage appears.

You may need a co-sponsor if you do not earn enough income on your own. This might be a role your mother-in-law can do (she and her husband). Your mother-in-law needs to know that the only way she can help keep her daughter in the US right now is to co-operate with you. She is not able to sponsor her daughter on her own while her daughter is out of status, and even sponsoring her for a family based visa will be at least 9 years and possibly more. It will be a moot point, though, as her daughter will now incur a 10 year ban if she leaves the US. The ONLY way she currently has available to get her green card is through you and your marriage.

It would probably be useful if your wife also signs up for an account on Visa Journey so she can read for herself what is being said. (It wouldn't hurt for your mother-in-law, to do the same, either ).

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

(I am also moving this topic to Bringing Family Members of US Citizens to America as both you and your mother-in-law are US citizens so that is the more correct forum location)

Ok this is what I just got from her! She tells me not to file anything and she means it. Then she says she

is at the 3yr ban if she goes back to Canada. All I know if her mother gets her wish and she divorces me I

actually dont want her in the US.

So what is she referring to on the 3yr ban and what would happen to her if I divorce her right now?

will she be able to ever come back to the US or get a green card or anything at all?

I get so angry when she doesnt believe me. All I am trying to do is help her. But she says I should

quit acting like I know everything and all I am doing is repeating everything that has been posted

to the questions I asked. She keeps saying the attorney or whatever knows what they are talking about.

Are we missing something here? what could he know that you dont know?

Thanks so much too for all this help

[aleful 1,905]

Ok this is what I just got from her! She tells me not to file anything and she means it. Then she says she

is at the 3yr ban if she goes back to Canada. All I know if her mother gets her wish and she divorces me I

actually dont want her in the US.

So what is she referring to on the 3yr ban and what would happen to her if I divorce her right now?

will she be able to ever come back to the US or get a green card or anything at all?

I get so angry when she doesnt believe me. All I am trying to do is help her. But she says I should

quit acting like I know everything and all I am doing is repeating everything that has been posted

to the questions I asked. She keeps saying the attorney or whatever knows what they are talking about.

Are we missing something here? what could he know that you dont know?

Thanks so much too for all this help

the 3 year ban is if she has been in the US less than 1 year and more than 6 months, if she leaves now. but if she has overstayed more than 1 year, then it is a 10 year ban once she leaves the US.

she is talking about if her mother files for her and she leaves now, how long has it been since she overstayed? It looks like she doesn't love you anymore, in that case you should divorce her if you can't work things out.

you can't control her not coming back, since her mother is a USC, but you aren't responsible for her, since you haven't filed an affidavit of support for her.

[hikergirl 277]

I think that depending on how long her mother has been a US Citizen they might be trying to do something through the CCA. It's not clear from the posting how long she has been in the US and had citizenship. If she became a citizen before her daughter turned 18 kind of thing.

Regardless, you have to figure things out with your wife and communicate with her - without assuming they are wrong and you are right. Keep an open mind and listen. The fact that you can't stand your mother-in-law seems to be an issue in your posts.

[JimVaPhuong 4,863]

I think that depending on how long her mother has been a US Citizen they might be trying to do something through the CCA. It's not clear from the posting how long she has been in the US and had citizenship. If she became a citizen before her daughter turned 18 kind of thing.

Regardless, you have to figure things out with your wife and communicate with her - without assuming they are wrong and you are right. Keep an open mind and listen. The fact that you can't stand your mother-in-law seems to be an issue in your posts.

The CCA won't help her. Even if her mother became a US citizen before she was 18, she must have been admitted for immigrant status before she was 18 in order to automatically acquire citizenship. She hasn't been admitted for immigrant status yet - neither an immigrant visa nor adjustment of status - so there's no way for her to acquire citizenship through her mother.

She can't adjust status through her mother, even if her mother had filed a petition years ago and her priority date was current. She's out of status and she no longer qualifies under any immediate relative category. Adjusting status under a family preference category requires that she have current legal status in the US.

Either the lawyer knows something the OP doesn't know or hasn't shared, or the lawyer is trying to milk her mother for some money, knowing that anything he does at this point will fail.

[mcdode 0]

The CCA won't help her. Even if her mother became a US citizen before she was 18, she must have been admitted for immigrant status before she was 18 in order to automatically acquire citizenship. She hasn't been admitted for immigrant status yet - neither an immigrant visa nor adjustment of status - so there's no way for her to acquire citizenship through her mother.

She can't adjust status through her mother, even if her mother had filed a petition years ago and her priority date was current. She's out of status and she no longer qualifies under any immediate relative category. Adjusting status under a family preference category requires that she have current legal status in the US.

Either the lawyer knows something the OP doesn't know or hasn't shared, or the lawyer is trying to milk her mother for some money, knowing that anything he does at this point will fail.

She wasnt a citizen before 18. She has lived in the US for over a year because we were married July 7, 2010.

Her passport expired I believe on her Birthday April 15 of 2011

I tried to explain it to her but thats why we are going to counseling on Monday.

If she doesnt understand that i have to file for her well then we obviously will

be getting a divorce because she wont be back her for 10 years

[Kathryn41 3,205]

I'm sorry. It does sound like she doesn't want to stay in the marriage any more.

If that is the case, then you really have to ask yourself if you want to be financially liable for her for possibly the next 10 years - because that is what you will be committing yourself for if you proceed with the AOS application and she gets her green card. You will be spending a lot of money on the process and you will have to be able to prove you are a married couple - which sounds like it will be difficult to prove.

It is one thing to be financially responsible for your wife and life's partner - but if that person doesn't want to be with you (and she doesn't seem to want you to file for her) and you are thinking about divorce now, then it becomes a totally different scenario and you may not wish to proceed any further on her behalf. A marriage is a partnership between two people who want to be with each other. You make commitments to each other. It sounds like you are trying hard to fulfill your commitments to her but it doesn't sound like she is willing to fulfill hers to you. If she suddenly 'changes her mind' after counseling reveals that her only way to stay in the US is through your filing to sponsor her, you may be opening yourself up to the 'heartache' of being used for a green card.

She is saying not to sponsor her - to let her mother do this with her attorney. I would allow her to have her way on this. There is no way that we here on Visa Journey can see for her to adjust status through her mother and her lawyer, but it appears that they are going to have to learn that for themselves, the hard way. Either that, or they have something else planned that they are not willing to share with you. That definitely doesn't sound very supportive of you.

Regardless, you really need to ask if you want to enter a contract with the Government to ensure this woman does not become a financial liability to the American taxpayers when your marriage may not survive another few months. That is what you would need to do for her to get her green card and even if you get divorced, you are still bound by that contract. The "Affidavit of Support" contract remains in effect until one of the following happens: she has worked and contributed to SSA for 10 years, she becomes a US citizen (which would be a minimum of 5 years after getting a green card if she is divorced), she leaves the US to live elsewhere, she dies or you die.

Who is this counseling with? A lawyer or a marriage counsellor?

Edited September 25, 2011 by Kathryn41

[Kathryn41 3,205]

Ok this is what I just got from her! She tells me not to file anything and she means it. Then she says she

is at the 3yr ban if she goes back to Canada. All I know if her mother gets her wish and she divorces me I

actually dont want her in the US.

Your feelings about this are important. If you go ahead with a green card sponsorship for her and then get divorced after she has the green card, she will still be in the US and you will be under contract to the Government to ensure she does not become a financial liability to the US taxpayer. That obligation does not end with divorce. If you think a divorce is likely, then decide if you really want to be under that obligation for a very long time. She is saying 'don't sponsor me' ; you need to look at why a wife would not want her husband to sponsor her, even if it is painful information.

So what is she referring to on the 3yr ban and what would happen to her if I divorce her right now?

That means she knows she has more than 180 days out of status in the US and if she leaves the US now she will not be allowed back in for at least 3 years. The ban only kicks in if she leaves the US without having a green card. If you divorce her right now she will no longer have an option to get a green card through her marriage to a US citizen.

will she be able to ever come back to the US or get a green card or anything at all?

That depends on a lot of different things. Once the ban is over she might be allowed to visit - or might not, depending on the border guards. Her mother - or another US husband - can sponsor her for a green card. There would be different time frames involved.

I get so angry when she doesnt believe me. All I am trying to do is help her. But she says I should

quit acting like I know everything and all I am doing is repeating everything that has been posted

to the questions I asked. She keeps saying the attorney or whatever knows what they are talking about.

Are we missing something here? what could he know that you dont know?

I seriously doubt the attorney knows anything more than we do, unless there is something unethical involved. I can appreciate your frustration but she is declining your help. You can't force her to accept it, and with this type of attitude in your marriage, you may end up happier in the long run by not trying. You probably aren't missing something - but it does sound like they are trying to hide something from you.

Thanks so much too for all this help

[mcdode 0]

I'm sorry. It does sound like she doesn't want to stay in the marriage any more.

If that is the case, then you really have to ask yourself if you want to be financially liable for her for possibly the next 10 years - because that is what you will be committing yourself for if you proceed with the AOS application and she gets her green card. You will be spending a lot of money on the process and you will have to be able to prove you are a married couple - which sounds like it will be difficult to prove.

It is one thing to be financially responsible for your wife and life's partner - but if that person doesn't want to be with you (and she doesn't seem to want you to file for her) and you are thinking about divorce now, then it becomes a totally different scenario and you may not wish to proceed any further on her behalf. A marriage is a partnership between two people who want to be with each other. You make commitments to each other. It sounds like you are trying hard to fulfill your commitments to her but it doesn't sound like she is willing to fulfill hers to you. If she suddenly 'changes her mind' after counseling reveals that her only way to stay in the US is through your filing to sponsor her, you may be opening yourself up to the 'heartache' of being used for a green card.

She is saying not to sponsor her - to let her mother do this with her attorney. I would allow her to have her way on this. There is no way that we here on Visa Journey can see for her to adjust status through her mother and her lawyer, but it appears that they are going to have to learn that for themselves, the hard way. Either that, or they have something else planned that they are not willing to share with you. That definitely doesn't sound very supportive of you.

Regardless, you really need to ask if you want to enter a contract with the Government to ensure this woman does not become a financial liability to the American taxpayers when your marriage may not survive another few months. That is what you would need to do for her to get her green card and even if you get divorced, you are still bound by that contract. The "Affidavit of Support" contract remains in effect until one of the following happens: she has worked and contributed to SSA for 10 years, she becomes a US citizen (which would be a minimum of 5 years after getting a green card if she is divorced), she leaves the US to live elsewhere, she dies or you die.

Who is this counseling with? A lawyer or a marriage counsellor?

Its with a marriage counselor. I understand this process and I just might let her do it her way. I am prepared not

to be used for a green card because we are off and on and off and on. I understand what everyone is saying too. I havent

found anything else that she could use to stay here. So its definitely not 3 years its 10 years to come back?

No marriage is perfect and we have given each other chances and I already told myself I am not going to drag this

on for the next 6 months. One thing is I am leaving the state of Idaho to go back to Calif for 6 months to stock up

on merchandise for my business. I know if she doesnt go with me right there is another breach of the marriage that

cant be explained to a happily married couple. So on the Affidavit of Support if I sign it and she gets her Green Card.

You say I would be financially responsible. Does this mean she can refuse to work and I just have to grab a bar of soap

and take it? Or is there a responsibility on her to work while she is here on a Green Card? I can guarantee I wont let

myself get used. I am stable in that area but the financially responsibility even if we divorce. Now if we stay married

for 2 years I believe we have to file something else and she can actually divorce me and stay is this also correct?

I am sucking all this information and learning a lot from this.

[aleful 1,905]

Its with a marriage counselor. I understand this process and I just might let her do it her way. I am prepared not

to be used for a green card because we are off and on and off and on. I understand what everyone is saying too. I havent

found anything else that she could use to stay here. So its definitely not 3 years its 10 years to come back?

No marriage is perfect and we have given each other chances and I already told myself I am not going to drag this

on for the next 6 months. One thing is I am leaving the state of Idaho to go back to Calif for 6 months to stock up

on merchandise for my business. I know if she doesnt go with me right there is another breach of the marriage that

cant be explained to a happily married couple. So on the Affidavit of Support if I sign it and she gets her Green Card.

You say I would be financially responsible. Does this mean she can refuse to work and I just have to grab a bar of soap

and take it? Or is there a responsibility on her to work while she is here on a Green Card? I can guarantee I wont let

myself get used. I am stable in that area but the financially responsibility even if we divorce. Now if we stay married

for 2 years I believe we have to file something else and she can actually divorce me and stay is this also correct?

I am sucking all this information and learning a lot from this.

no the ban is for 10 years, but she can file a waiver and her mother has to do a hardship letter if her mother files for her, to overcome the 10 year ban. if she divorces and leaves, the wait is over 6 years for unmarried children of a USC, unless there is an immigration reform that would allow her to adjust status in country. for now, she will have to go through consular processing in Canada if her mother files for her.

[bigdog 376]

Kitty says it all.

Edited September 26, 2011 by bigdog

[bigdog 376]

Think long and hard about what you are doing here. Do not obligate yourself to something you will regret later. See an attorney or two.

[Boiler 46,025]

Isn't she in the US d/s?