American Citizen who Married Canadian Citizen (NEED HELP!)

[britishdakota 18]

Everyone I have ever spoken to about this, on this forum or legal advice has said the safest option for Canadians is to file the I-130 for consular processing. She can stay for her allowed time, and should be able to visit if she has ties to Canada although the CBP normally life as much time in as out. This process is currently incredibly slow.

The risk with AOS is the accusation of visa fraud. The risk of this would partially depend on what was said at the point of entry and other evidence, e.g. any life event that made you decide to stay, did she quit her job before leaving, does she still have property there etc. The accusation of visa fraud could complicate things for you will likely cost plenty in legal fees and if found guilty could cause her a lifetime ban on entry to the USA.

Some people have said intent is not an issue, there could well be recent immigration rulings on this which would be helpful if other members above could elaborate. As for the lawyer I'd try to get a second opinion.

[Harpa Timsah 13,258]

Everyone I have ever spoken to about this, on this forum or legal advice has said the safest option for Canadians is to file the I-130 for consular processing. She can stay for her allowed time, and should be able to visit if she has ties to Canada although the CBP normally life as much time in as out. This process is currently incredibly slow.

The risk with AOS is the accusation of visa fraud. The risk of this would partially depend on what was said at the point of entry and other evidence, e.g. any life event that made you decide to stay, did she quit her job before leaving, does she still have property there etc. The accusation of visa fraud could complicate things for you will likely cost plenty in legal fees and if found guilty could cause her a lifetime ban on entry to the USA.

Some people have said intent is not an issue, there could well be recent immigration rulings on this which would be helpful if other members above could elaborate. As for the lawyer I'd try to get a second opinion.

Intent, by itself, is not a reason to deny an AOS. That has been that way since the 80s. That also has to be proven intent, not just a suspicion thereof.

If the OP really did not intend to do this, then there is really little risk, because everything they would have said at POE was the truth. There will be no accusation of visa fraud.

[OZZ 0]

Use the guide that Harpa provided. You will be OK. As mentioned, Canadians rarely get an I-94, and Intent is not an issue. It takes 3-5 months from filing to getting your green card. Do NOT let your spouse leave the US for any reason until you have either the AP or the green card itself.

Harpa and Valerie,

I was going to go ahead and file everything today but I just wanted some legal advice to be sure and I went onto www.nolo.com and put in my situation there and an attorney contacted me over the phone and gave me a free consultation. After the consultation he emailed me the following:

"Thank you for contacting the Fogle law firm through the Nolo website. To recap our conversation today, it would not be advisable for your wife to file an I-485 application as you were already married prior to her entry as a visitor. It would be preferable to file the I-130, return to Canada at the end of her permitted stay as a visitor in the U.S and return to the U.S as on an immigrant visa after consular interview in Canada upon approval of the I-130"

So hes advising against the AOS. what do you all think? I know he's advising against it because it could arise complication but for some reason I don't believe it would If i just file I-130 and 1-485.

[Harpa Timsah 13,258]

Harpa and Valerie,

I was going to go ahead and file everything today but I just wanted some legal advice to be sure and I went onto www.nolo.com and put in my situation there and an attorney contacted me over the phone and gave me a free consultation. After the consultation he emailed me the following:

"Thank you for contacting the Fogle law firm through the Nolo website. To recap our conversation today, it would not be advisable for your wife to file an I-485 application as you were already married prior to her entry as a visitor. It would be preferable to file the I-130, return to Canada at the end of her permitted stay as a visitor in the U.S and return to the U.S as on an immigrant visa after consular interview in Canada upon approval of the I-130"

So hes advising against the AOS. what do you all think? I know he's advising against it because it could arise complication but for some reason I don't believe it would If i just file I-130 and 1-485.

That lawyer is full of it.

I know that Valerie came in while already married and had no issue.

When and where you are married is not the problem, it's only your intent upon entry. Even having intent is not a negative enough factor to deny an AOS by itself.

The fact that you entered the US legally and did not lie at the border makes you eligible.

Edited September 11, 2013 by Harpa Timsah

[ValerieA 350]

Harpa and Valerie,

I was going to go ahead and file everything today but I just wanted some legal advice to be sure and I went onto www.nolo.com and put in my situation there and an attorney contacted me over the phone and gave me a free consultation. After the consultation he emailed me the following:

"Thank you for contacting the Fogle law firm through the Nolo website. To recap our conversation today, it would not be advisable for your wife to file an I-485 application as you were already married prior to her entry as a visitor. It would be preferable to file the I-130, return to Canada at the end of her permitted stay as a visitor in the U.S and return to the U.S as on an immigrant visa after consular interview in Canada upon approval of the I-130"

So hes advising against the AOS. what do you all think? I know he's advising against it because it could arise complication but for some reason I don't believe it would If i just file I-130 and 1-485.

I think that lawyer is an idiot.

As Harpa stated, I entered while already married. I was even pulled into secondary while entering, as they were suspicious about my intent (I had my cat with me, along with 2 huge suitcases filled with clothing, had quit my job and given up my apartment, and had filed for CR-1 - which is probably the reason they allowed me across). Basically, intent is judged at point of entry. If they allowed you in, then they've already decided that you did NOT have intent. The only way this is overridden is if the person entering deliberately lied (not by omission) about something that would have caused the border guard to refuse entry.

Check out my signature below, it has the link to the blurb from the field operator's manual where it states they are not to deny based on intent.

I had a fast, smooth process. As long as you have a bonafide marriage, little else matters.

[OZZ 0]

I think that lawyer is an idiot.

As Harpa stated, I entered while already married. I was even pulled into secondary while entering, as they were suspicious about my intent (I had my cat with me, along with 2 huge suitcases filled with clothing, had quit my job and given up my apartment, and had filed for CR-1 - which is probably the reason they allowed me across). Basically, intent is judged at point of entry. If they allowed you in, then they've already decided that you did NOT have intent. The only way this is overridden is if the person entering deliberately lied (not by omission) about something that would have caused the border guard to refuse entry.

Check out my signature below, it has the link to the blurb from the field operator's manual where it states they are not to deny based on intent.

I had a fast, smooth process. As long as you have a bonafide marriage, little else matters.

So here's the problem I guess.

She crossed the border on July 6th right after July 4th so it was jammed packed. When she got to the border the officer asked her why shes entering the USA and she said to visit and he scanned her passport and let he go through. That's all that happened with her she did not state who shes visiting or where shes visiting.

Do you think that could cause a problem?

[NikLR 13,228]

So here's the problem I guess.

She crossed the border on July 6th right after July 4th so it was jammed packed. When she got to the border the officer asked her why shes entering the USA and she said to visit and he scanned her passport and let he go through. That's all that happened with her she did not state who shes visiting or where shes visiting.

Do you think that could cause a problem?

No.

She intended to visit and you changed your mind. End of story.

You can go forward as planned with the adjustment of status. Just remember she cannot leave the USA until she has the advance parole.

[ValerieA 350]

So here's the problem I guess.

She crossed the border on July 6th right after July 4th so it was jammed packed. When she got to the border the officer asked her why shes entering the USA and she said to visit and he scanned her passport and let he go through. That's all that happened with her she did not state who shes visiting or where shes visiting.

Do you think that could cause a problem?

Definitely not. She didn't lie to him, she really was going to visit. He didn't ask anymore questions, he was satisfied with her answer.

[Teddy B 17,252]

Ozz,

Harpa and Valerie have given you correct information. The burden of proof for intent is on USCIS, there would have to be something completely solid for it to have any affect on your process. You should have no problem filing for AOS for your wife.

Good luck.

[OZZ 0]

Definitely not. She didn't lie to him, she really was going to visit. He didn't ask anymore questions, he was satisfied with her answer.

Valerie thanks for your help.

My last question for you is that do you think it made a difference in your case because you has a CR-1 pending?

Do you think my wife being on a B-1 or B-2 make a difference in this case?

[Teddy B 17,252]

Valerie thanks for your help.

My last question for you is that do you think it made a difference in your case because you has a CR-1 pending?

Do you think my wife being on a B-1 or B-2 make a difference in this case?

I won't answer for Valerie, but my opinion is no, it won't matter at all. My wife came to the US on a Canadian B2, we got married 6 months later and filed for her AOS with no problems whatsoever.

[ValerieA 350]

Valerie thanks for your help.

My last question for you is that do you think it made a difference in your case because you has a CR-1 pending?

Do you think my wife being on a B-1 or B-2 make a difference in this case?

No. My having (just) started the CR-1 process is why they let me across the border in the end (I believe). I was allowed across on a B-2 visa (that's what they wrote on the stamp in my passport). Many people here have adjusted from B-1 and B-2 visas with absolutely no issues. As long as the paperwork is done properly, RFE's are responded to appropriately in the required time frame, and you have a legitimate marriage, you will be fine.

Relax. We all stress about this process, I haven't seen one person totally relaxed during it, but it is easy and fast. Once you have your green card, you will wonder why you were so worried.

[scienceworks 64]

Ozz,

Harpa and Valerie have given you correct information. The burden of proof for intent is on USCIS, there would have to be something completely solid for it to have any affect on your process. You should have no problem filing for AOS for your wife.

Good luck.

I believe in immigration proceedings, the burden of proof is on the alien or the applicant. I read it somewhere on i-130 instructions.

Edited September 12, 2013 by scienceworks

[Teddy B 17,252]

I believe in immigration proceedings, the burden of proof is on the alien or the applicant. I read it somewhere on i-130 instructions.

The burden of proof on the I-130 you speak of is the proof of bonafide relationships. it has nothing to do with the intent of a person entering the US.

[h13rma 35]

I'm with Harpa and Valerie on this, if she was never asked if she intended to stay theres nothing wrong with changing your mind when here legally. I made 22 trips to the USA to visit my girlfriend before she surprised me with a wedding. In all those entries, always answering the purpose of your visit question, with to see my girlfriend, I was only asked if we were planning to get married/stay once.

I also sweated the whole way through the process, and in the end it took one twenty minute interview, most of which was spend by the Agent checking with his supervisor if due to the nature of my job, it was okay to give me an I551 stamp there and then.

Edited September 12, 2013 by h13rma