Canadian in America due to COVID19

[NikLR 13,227]

7 hours ago, Canadian Spouse said:

Pretty please provide a reference to prove this-- if you are in the USA on a student or work visa you can apply for AOS, absolutely.  According to everything I have read you cannot in any way apply for AOS as a visitor, even if you are Canadian.  I am Canadian and my spouse lives in the USA... I have spend hours, weeks, months trying to find any other option we may have besides waiting in Canada for an unknown length of time (it's already been almost a year and a half ... interview would have been in April... now who knows!  So frustrating.)   unfortunately I could find zero evidence that the AOS on a Canadian visitor visa would fly.  Can you provide any references to look at?

You cannot Intend to AOS.  If your circumstances change you can AOS.  Intent is determined at entry. 

Matter of battista or matter of Cavazos.  Circumstances changing like you were already here and this pandemic came, you discovered you (or your spouse) is sick or pregnant and wanted to stay, someone died so you were here for your spouse, you went to get on the plane and the usc proposed, etc etc etc... there are lots of ways that circumstances can change after entry. 

Most of us can't just drop our lives and move.  

There are LOTS of people on this forum who successfully AOS as Canadians who were just visiting intially. 

Edited May 12, 2020 by NikLR
fixed spelling

[geowrian 22,337]

2 hours ago, Canadian Spouse said:

Pretty please provide a reference to prove this-- if you are in the USA on a student or work visa you can apply for AOS, absolutely.  According to everything I have read you cannot in any way apply for AOS as a visitor, even if you are Canadian.  I am Canadian and my spouse lives in the USA... I have spend hours, weeks, months trying to find any other option we may have besides waiting in Canada for an unknown length of time (it's already been almost a year and a half ... interview would have been in April... now who knows!  So frustrating.)   unfortunately I could find zero evidence that the AOS on a Canadian visitor visa would fly.  Can you provide any references to look at?

Can you provide any evidence that it is prohibited? Lacking that, it would be the same as any other legal entry (barring those that are explicitly prohibited, like C/D visas), which permits AOS.*

What says a student can AOS but a tourist cannot? Can you provide a source showing this difference? (Hint: There is none - they are both subject to INA 214(b), but otherwise are the same in AOS eligibility if already in the US)

In practice, it happens all the time. There tend to be a few posts on this website almost daily of people doing it.

*VWP travelers are explicitly barred from AOS, although IRs of a USC are exempt. Either way, not an issue here as Canadians do not use the VWP.

 

The issue is entering with intent to AOS. That is fraud. But if you are already in the US and circumstances changed, there's no issue.

Edited May 12, 2020 by geowrian

[jackanddeona 310]

2 hours ago, geowrian said:

Can you provide any evidence that it is prohibited? Lacking that, it would be the same as any other legal entry (barring those that are explicitly prohibited, like C/D visas), which permits AOS.*

What says a student can AOS but a tourist cannot? Can you provide a source showing this difference? (Hint: There is none - they are both subject to INA 214(b), but otherwise are the same in AOS eligibility if already in the US)

In practice, it happens all the time. There tend to be a few posts on this website almost daily of people doing it.

*VWP travelers are explicitly barred from AOS, although IRs of a USC are exempt. Either way, not an issue here as Canadians do not use the VWP.

 

The issue is entering with intent to AOS. That is fraud. But if you are already in the US and circumstances changed, there's no issue.

This is one of those things. The rule is you can't enter to aos (which I just learned) but essentially once you have entered the US the border agent has already deemed you to be entering lawfully and you could then aos regardless of your visa? or is there some requirement to prove circumstances changed?

Edited May 12, 2020 by jackanddeona

[geowrian 22,337]

42 minutes ago, jackanddeona said:

This is one of those things. The rule is you can't enter to aos (which I just learned) but essentially once you have entered the US the border agent has already deemed you to be entering lawfully and you could then aos regardless of your visa? or is there some requirement to prove circumstances changed?

Once you are inspected and admitted, you can AOS regardless of your visa (barring the handful of visas explicitly prohibited from doing so, such as C/D visas, diplomatic visas, VWP travelers unless you are an IR of a USC, etc.).

 

Intent at the time of entry must be to return home. Intent is effectively determined at POE (this can go into a very long and complicated discussion on what exactly is an issue and the equities involved...but that is not really the subject of this thread).

If somebody were to say "Yeah, I intended to stay when I came to the US knowing it was fraudulent to do so" at their AOS interview, I would not be surprised if they opened a can of worms and jeopardized their future in the US as a result.

But in general, preconceived intent alone is not a basis to deny an I-485. If you look into the cases noted previously (Matter of Battista and Matter of Cavazos (it was misspelled above)), this will describe how the equities were considered to reach that simplified conclusion, at least in the case of an IR of a USC.

Misrepresentations at POE and the interview still apply. But preconceived intent is not an issue in those cases.

 

tldr: You don't need to prove anything changed.

Edited May 12, 2020 by geowrian

[jackanddeona 310]

11 minutes ago, geowrian said:

Once you are inspected and admitted, you can AOS regardless of your visa (barring the handful of visas explicitly prohibited from doing so, such as C/D visas, diplomatic visas, VWP travelers unless you are an IR of a USC, etc.).

 

Intent at the time of entry must be to return home. Intent is effectively determined at POE (this can go into a very long and complicated discussion on what exactly is an issue and the equities involved...but that is not really the subject of this thread).

If somebody were to say "Yeah, I intended to stay when I came to the US knowing it was fraudulent to do so" at their AOS interview, I would not be surprised if they opened a can of worms and jeopardized their future in the US as a result.

But in general, preconceived intent alone is not a basis to deny an I-485. If you look into the cases noted previously (Matter of Battista and Matter of Cavazos (it was misspelled above)), this will describe how the equities were considered to reach that simplified conclusion, at least in the case of an IR of a USC.

Misrepresentations at POE and the interview still apply. But preconceived intent is not an issue in those cases.

 

tldr: You don't need to prove anything gchanged.

Ya that's what I thought. Obviously having to lie at interviews because you entered with the purpose to aos isn't ideal or ethical. The situation described for most of the couples in this thread is exactly why you would aos. Good to know about this. I'm personally going to keep waiting for my dq and interview in Canada but always fun to learn the intricacies of the system.

[Canadian Spouse 3]

5 hours ago, geowrian said:

Can you provide any evidence that it is prohibited? Lacking that, it would be the same as any other legal entry (barring those that are explicitly prohibited, like C/D visas), which permits AOS.*

What says a student can AOS but a tourist cannot? Can you provide a source showing this difference? (Hint: There is none - they are both subject to INA 214(b), but otherwise are the same in AOS eligibility if already in the US)

In practice, it happens all the time. There tend to be a few posts on this website almost daily of people doing it.

*VWP travelers are explicitly barred from AOS, although IRs of a USC are exempt. Either way, not an issue here as Canadians do not use the VWP.

 

The issue is entering with intent to AOS. That is fraud. But if you are already in the US and circumstances changed, there's no issue.

Ha ha... thank-you!  I had it in my head that it wouldn't work for me.  But, yeah you are right. 

 

I have ample evidence that i did intend to return (Non-refundable airbnb's booked to quarantine back in Canada, for example...  ugh. silly me).  I just don't want to ruin my consular processing for something that isn't guaranteed.  It is a big decision, but seeing people on here doing it it does seem more like a real option.  And since covid throws a wrench into my work load anyhow, it seems like less of an issue.  Thanks for clarifying for me.

[INF 96]

3 hours ago, Canadian Spouse said:

Ha ha... thank-you!  I had it in my head that it wouldn't work for me.  But, yeah you are right. 

 

I have ample evidence that i did intend to return (Non-refundable airbnb's booked to quarantine back in Canada, for example...  ugh. silly me).  I just don't want to ruin my consular processing for something that isn't guaranteed.  It is a big decision, but seeing people on here doing it it does seem more like a real option.  And since covid throws a wrench into my work load anyhow, it seems like less of an issue.  Thanks for clarifying for me.

The COVID-19 reasoning is probably one of the most acceptable reasons that you would want to switch to AOS. I still have my apartment with all my things in Canada that my parents would have to clean out for goodness sakes! I am going to wait to see if the border restrictions easy in May or if the Montreal offices open in June and see what happens from there! So much uncertainty in immigration based on this. Might even complete my AOS forms just in case. So much free time these days anyway!

Edited May 13, 2020 by INF