Adjustment of status for Canadians

[Faizan89 6]

Hello,

My good friend is a Canadian citizen who got married to a US citizen and would like to apply for an adjustment of status while staying in US. The only problem however is, he got married in August 2013 in USA and went back to Canada for a few months. Now he is back in US and he is wondering whether he can qualify for the Adjustment of status or not? From my understanding, in order to qualify for this, one should stay in US after getting married until his case is processed. Canadians usually don't need a visa to visit the US so thats why he travelled back and forth. Can someone please explain whether he is qualified to apply for Adjustment of status or not?

Thank you,

Faizan

[2018JourneyDone 77]

Did he enter the States and marry on a K-1 Fiancé Visa or was he just on a normal trip to the U.S. when the marriage occurred? Is he working or does he have a work visa, student visa or is he just entering the U.S. from Canada via visitor status? Need a bit more clarification on that I suppose to get the best answers.....

If I am not mistaken, if he wishes to now immigrate to the U.S. permanently on the basis of his marriage, they will have to file for an IR-1/CR-1 visa (which takes quite a while) I do not believe he will be able to remain in the states during the process either. I am by no means an expert on this so hopefully some of the more seasoned members will chime in and provide more detailed and guided replies.

[Rob & Monika 87]

You have to file for both the IR/CR1 (I-130) and the AOS (I-485) at the same time. Normally, they want to make sure you didn't enter the country with the intent of filing for AOS after entering (which is illegal), but they generally don't give Canadians a hard time about it.

AOS does require you stay in the US until you either have Advance Parole or your green card.

Edited June 11, 2014 by Rob & Monika

[Faizan89 6]

Hi Corey,

He actually doesn't have any kind of visa and entered US on a Visa Waiver since Canadians dont need a visa to enter US. he is living with his wife and cant work because he is not authorized to. when he was visiting last year in August, he got married to a US citizen but went back to Canada. Now he is back in US on a Visa Waiver and wants to apply for Adjustment of status without going back to Canada. Is there any possibility for that

Did he enter the States and marry on a K-1 Fiancé Visa or was he just on a normal trip to the U.S. when the marriage occurred? Is he working or does he have a work visa, student visa or is he just entering the U.S. from Canada via visitor status? Need a bit more clarification on that I suppose to get the best answers.....

If I am not mistaken, if he wishes to now immigrate to the U.S. permanently on the basis of his marriage, they will have to file for an IR-1/CR-1 visa (which takes quite a while) I do not believe he will be able to remain in the states during the process either. I am by no means an expert on this so hopefully some of the more seasoned members will chime in and provide more detailed and guided replies.

[Udella&Wiz 325]

So he came to visit and now intends to stay permanently? This isn't the best case scenario and can get you banned for a certain period if they can determine he came to visit with the intention of actually staying. That is a big no-no. They migt accept his explanation or they might not.

He would be better off to return home and they file the IR-1/CR-1 while they live separately in the US and Can. and do it the proper way.

Put simply - all he can do is try, USCIS will make a decision one way or another.

Edited June 12, 2014 by Udella&Wiz

[Krikit 1,165]

Hi Corey,

He actually doesn't have any kind of visa and entered US on a Visa Waiver since Canadians dont need a visa to enter US. he is living with his wife and cant work because he is not authorized to. when he was visiting last year in August, he got married to a US citizen but went back to Canada. Now he is back in US on a Visa Waiver and wants to apply for Adjustment of status without going back to Canada. Is there any possibility for that

Just to clarify, Canada is not part of the visa waiver program. You are correct that Canadians don't need a visa to enter the US but it is not called a Visa Waiver.

I am going to move this thread from the Canada Regional forum over to the Adjustment of Status From Other Visas forum as that is the process he is going to go through.

[aaron2020 11,651]

Hi,

US law states that the preconceived intent to enter the US on a nonimmigrant visa (or VWP; or as a Canadian) with the intent to immigrate by itself is not a valid reason to deny an adjustment of status for an Immediate Relative of a USC as long as the person didn't lie at the POE.

Your friend can file to adjust. He does not have to return to Canada.

Edited June 13, 2014 by aaron2020

[Mollie09 1,543]

Hello,

My good friend is a Canadian citizen who got married to a US citizen and would like to apply for an adjustment of status while staying in US. The only problem however is, he got married in August 2013 in USA and went back to Canada for a few months. Now he is back in US and he is wondering whether he can qualify for the Adjustment of status or not? From my understanding, in order to qualify for this, one should stay in US after getting married until his case is processed. Canadians usually don't need a visa to visit the US so thats why he travelled back and forth. Can someone please explain whether he is qualified to apply for Adjustment of status or not?

Thank you,

Faizan

There's a lot of misinformation going on in this thread.

• Your friend is not in trouble
• He can adjust his status while in the US by filing I-130/I-485
• He cannot leave the US while his case is pending unless he obtains Advance Parole
• If he leaves after the case is filed, the case will be abandoned and he will have to file for a spousal petition (IR1/CR1) outside the US
• If they file IR1/CR1, he won't be allowed to enter the US until the case is approved (even though he's Canadian)
• Until something is filed one way or another, he can travel in an out
• Yes, there is sometimes trouble if you enter as a tourist when actually you intend to stay permanently. The key is the intention at the port of entry, and it's not usually a huge issue, especially for Canadians

[ValerieA 350]

There's a lot of misinformation going on in this thread.

• Your friend is not in trouble
• He can adjust his status while in the US by filing I-130/I-485
• He cannot leave the US while his case is pending unless he obtains Advance Parole
• If he leaves after the case is filed, the case will be abandoned and he will have to file for a spousal petition (IR1/CR1) outside the US
• If they file IR1/CR1, he won't be allowed to enter the US until the case is approved (even though he's Canadian)
• Until something is filed one way or another, he can travel in an out
• Yes, there is sometimes trouble if you enter as a tourist when actually you intend to stay permanently. The key is the intention at the port of entry, and it's not usually a huge issue, especially for Canadians

Sorry, came to this topic late. What F1H1I130 said is mostly true, but if they do decide to do CR1 (which I would not recommend in this case, just adjust status) the Canadian spouse can still visit, they just need to bring along proof of ties to Canada. Since the spouse has already entered, intention is no longer an issue, that is decided by the guy at the border. If he allows entry - assumption is there was no intention.

[Mollie09 1,543]

Sorry, came to this topic late. What F1H1I130 said is mostly true, but if they do decide to do CR1 (which I would not recommend in this case, just adjust status) the Canadian spouse can still visit, they just need to bring along proof of ties to Canada. Since the spouse has already entered, intention is no longer an issue, that is decided by the guy at the border. If he allows entry - assumption is there was no intention.

True, I realized my mistake late. Sorry!

Thanks for the correction, ValerieA.