Do I even need a K1 as a Canadian?

[RosaMystica7 0]

American Samoa doesn't count as that is not part of the "United States" as defined in the INA...

Sorry, I just saw it was on a list of US territories.

Does the INA define Puerto Rico and the US Virgin Islands as part of the "United States"? Those were suggestions that someone mentioned earlier, and I've seen mentioned in the past.

Maybe Hawaii would be the safest since it's one of the 50 US States - shouldn't be any doubts about it being okay to go there, right? Hawaii's beautiful anyway, it would still make for an incredible honeymoon, just without the risk of a dentention center/ban from the US on the way back.

Edited August 4, 2006 by aselano

[zyggy 9]

American Samoa doesn't count as that is not part of the "United States" as defined in the INA...

Sorry, I just saw it was on a list of US territories.

Does the INA define Puerto Rico and the US Virgin Islands as part of the "United States"? Those were suggestions that someone mentioned earlier, and I've seen mentioned in the past.

Maybe Hawaii would be the safest since it's one of the 50 US States - shouldn't be any doubts about it being okay to go there, right? Hawaii's beautiful anyway, it would still make for an incredible honeymoon, just without the risk of a dentention center/ban from the US on the way back.

the US Virgin Islands, Puerto Rico and Guam are defined as part of the "United States" in the INA.

[am1996 0]

Thank you all once again for all the incredibly helpful posts. My fiance (who is a corporate attorney but knows very little about immigration law) and I discussed all the responses in this thread last night and he reviewed a number of applicable statutes to put it all in the proper context. We still believe that our approach (which involves truthfully and honestly responding to all the questions asked by border patrol and, if necessary, providing case and statutory citations for our position) is sound and legal but the posts in this thread have raised a number of practical realities/possibilities that, while remote, are still quite unnerving.

We have therefore scheduled a consulation with one of the top immigration lawyers in the city (we are not happy about his hourly rate but my fiance says that it's better to pay it than to try to save money by going to an inexperienced lawyer) whom we've used in the past to see what he thinks about our approach. We'll make the final decision after the consultation.

[zyggy 9]

That's all fine and good... but be aware of this...

When one is applying entrance to the USA, you leave your legal rights at the door. The IIRIRA allws the CBP officer to be judge, jury and executioner when determining who is permitted in the US and who is not. All the case citations and legalese that you apply at the border is not going to amount to a hill of beans. (In fact if you try that, you'll make them more mad and more likely to deny you) If the CBP doesn't want you in, they're not going to let you in and there is no one to get or force them to change their decision.

You are making the assumption that they have to listen to reason and accept your evidence and hear what you have to say. The INA does not force them to do that. THis is not a jury trial, or even a trial at all. You are guilty until you prove yourself innocent to a CBP officer. And a CBP officer has to right to consider your evidence or not to consider it, because the decision is totally in their hands. The legal system people are accumstomed to in the US does not work at the border.. in fact.. it does not exist..

If you want the law that allows them to deny you .. here it is.. INA 214 B

B) Every alien 10/ (other than a nonimmigrant described in subparagraph or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15). An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288, note], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 247(B).

The L and V refers to individulas with L or V visas... The H refers to an H1B or H visa for agricultural workers...

And for good measure

INA 212(a)(7)(A)

(7) Documentation requirements.-

(A) Immigrants.-

(i) In general.-Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission-

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a), or

(II) whose visa has been issued without compliance with the provisions of section 203, is inadmissible.

and last but not least

INA 235 (B)(1)(A)(i)

(B) 2/ Inspection of Applicants for Admission.-

(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled.-

(A) Screening.-

(i) In general.-If an immigration officer determines that an alien (other than an alien described in subparagraph ) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)© or 212(a)(7), the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.

The above is all you need to know... Save your money... the powers the INA gives the CBP is all in black and white right there... No matter what your attorney is going to tell you, you don't know what's going to happen until you get in front of that officer.. and no attorney is going to be able to tell you what he or she is going to do..

Edited August 4, 2006 by zyggy

[am1996 0]

That's all fine and good... but be aware of this...

When one is applying entrance to the USA, you leave your legal rights at the door. The INA allws the CBP officer to be judge, jury and executioner when determining who is permitted in the US and who is not. All the case citations and legalese that you apply at the border is not going to amount to a hill of beans. If the CBP doesn't want you in, they're not going to let you in and there is no one to get or force them to change their decision.

With all due respect, this is incorrect. You certainly have a number of legal rights that are clearly defined in the statutes as well as in case law. If you specific situation is governed by one of these, the border patrol officers are given no discretion in the matter and the officers' desire to take law into their own hands can have rather severe consequences for them.

It is certainly true, however, that many situations fall in the gray area and, consequently, border patrol officers are given REASONABLE discretion under the law to make a number of important decisions. Once again, the discretion than they have under the law that we are aware of is "reasonable" rather than "sole and absolute," which has a number of important legal implications for them as well as for us. In the event that they are deemed to have abused their discretion, the consequences for them can be quite severe.

Yes, it is certainly always possible to run across a border patrol officer who thinks that all the case citations and statutory authority are a "hill of beans" or less. It is just as possible to be pulled over by a police officer who thinks that all your consitutional rights don't amount to much more than that. In either case, you will be in a boatload of trouble and all the subsequent disciplinary actions levied against the officers and/or potential civil rights lawsuits against them won't reverse the grief that they'll end up giving you. I happen to believe, however, and my experience tells me that the vast majority of the people out there, including border patrol and police officers, are decent people who really want to do the right thing. So, all I can do is make sure that my approach is fundamentally legal and sound (which is the reason that I posted here in the first place and will also double check with a lawyer on this). If that's the case, all I can do is hope that I don't happen to run into a rogue border patrol or a police officer or, for that matter, any other law enforcement officer who doesn't care about the law.

[mozplay 29]

am1996,

I have read through this thread and caution you on the road which I think you are planning to take. Regardless of what the law says, perception is often more important and if you are PERCEIVED to be acting in a certain way, then CBPs are well within their rights to pull you aside and yes, even deny entry. I came in for a visit last week and was "this close" to being denied. I think think someone must have been on my side at the very last second. My own scenario - no mortgage, no children, no business to call my own - business cards, pay stubs, loan documents, driver's license just did not cut it - hell not even my charm and wit got me by the first CBP!

I'm not sure how often you have crossed recently, but bear in mind that every little news happening can affect life on the border.

Like in every walk of life, if you start telling someone how to do their job, whether that someone be a baker, banker, customer service rep, doctor, lawyer OR CBP you will be met with resistance. Do not think that these people do not have the power to send you home to Canada or worse - put a big fat ban on you which could complicate things even more.

The fact is - you have a realitively simple case - you are already in the US legally - don't have to worry about being separated like most of us do, and yet are still (to my understanding) trying to jeopardize this - for what - a wedding on a beach? Postpone the beach!!! Trust me, it will be there in 6 months! If you file now, you may even be able to be there by March Break! You will also be jeopardizing your internship.

Also, (and here is where I take out my own soapbox) the people on this site (not including myself yet) are VERY KNOWLEDGEABLE. As you probably have realized, amongst them you have CBP officers, lawyers and people who have gone through the process and yet still stay to give advice. If seeking an expensive laywer makes you feel comfortable then that is exactly the route to take, but I'll bet you dollars to donuts that you learn nothing that you would not already have learned here.

I do wish you all the best - as a fellow Canadian, I too thought that this process would be easier for us and definately looked for the quickest route - but learned that the honest, safest route was also the one where you filled out all the paperwork, dotted all the i's crossed all the t's, waited, waited and waited some more and yes .... will probably cut the number of ulcers that I will suffer as a result of this at least in half!

Mo

[am1996 0]

Like in every walk of life, if you start telling someone how to do their job, whether that someone be a baker, banker, customer service rep, doctor, lawyer OR CBP you will be met with resistance. Do not think that these people do not have the power to send you home to Canada or worse - put a big fat ban on you which could complicate things even more.

I couldn't agree with you more.

The fact is - you have a realitively simple case - you are already in the US legally - don't have to worry about being separated like most of us do, and yet are still (to my understanding) trying to jeopardize this - for what - a wedding on a beach? Postpone the beach!!! Trust me, it will be there in 6 months! If you file now, you may even be able to be there by March Break! You will also be jeopardizing your internship.

In order for us to make an educated risk vs. reward decision, we have to know and understand the amount risk that we are taking on. There is a certain amount of risk associated with everything you do in life and especially when you deal with border crossings. The mere existence of such risk is not and should not be enough to deter people from abandoning their daily routines and living in a shell for the rest of their lives.

In our case, with all due respect to the posters who I know are just trying to help, I've received a number of unquestionably incorrect responses that indicated (i) that your "overall" immigration intent is what's evaluated at the border (that's wrong; it's your specific intent during the stay in question that's tested), (ii) that I am already in violation of immigration laws because I have not been contributing to my fiance's mortgage and utilities (no only is there no law that requires me to do that but by that standard all visitors would be presumed to have immigration intent unless they intended to pay their share of such charges to their relatives), (iii) that I am required to obtain a K visa to legally proceed with my permanent residency petition (since I am on a valid B2 status here, I am not required to leave the country or to obtain any other visas/waivers to obtain an EAD and conditional permanent residency), etc... The reason I say all this is not to offend any of the posters (to the contrary, I VERY MUCH appreciate their input) but to explain the reason that I have been and will continue to drill down into the specifics, so that I can be assured that I am aware of all my options and that the information that I have is solid.

Further, as a Canadian, while I am still generally subject to the same laws as all other foreign nationals (with the notable exceptions of a number of treaties that greatly expand some of the rights afforded to us), when it comes to a number of situations, my ACTUAL burden of proof is quite a bit lower than it is with other foreign nationals. As with everything else, there are quite a few exceptions to the rule but, from what I know right now, the odds are that my approach should work.

The reason that we want to consult with a immigration lawyer is to get him, in light of his 30 year immigration law experience, to quantify the risk to us and to possibly come up with an alternative strategy that would reduce the risk. For instance, we'd like to know whether there is any way to expedite our AOS or AP petition (for instance, for I believe $1000, it is possible to expedite H1B petitions), obtain a special permission to leave and come back into the country (not necessarily for the wedding but for other reasons) or just go about the process in a whole different way that we just haven't considered. If he of course tells that that there are no viable alternatives and that our intended course of action would subject us to an unreasonably and unacceptably high probability of being denied entry into the US after the Carribean trip, then that'll be our answer. I very much doubt that it'll be quite so unequivocal, however.

If any of the readers of this thread have any such thoughts about alternative strategies that may allow us to reduce/minimize/eliminate the risk associated with our current strategy, please let us know.

Edited August 4, 2006 by am1996

[Kathryn41 3,205]

Am1996,

You would do well to take what Zyggy says extremely seriously rather than dismiss it. You have told him twice that he is wrong - in effect, you are telling the border guards that they are wrong and let me assure you - on the border, they are never wrong. They are GOD. Their word is absolute. You can try to play word games all you wish but while you are busy denying the experience and knowledge of everyone here, you may wish to spend some time researching Canadian immigration laws. That may well be your only recourse if you continue to pursue your planned course of action of getting married in the US, having your Carribean holiday, then trying to return to the US as the spouse of an American citizen lacking any type of visa. If you are lucky, all you will have to deal with is the embarassment and expense of trying to return to Canada from the Carribean. If you are unlucky you may face some unsavoury days or weeks in a detention center. If you are barred from re-entering the US there is no appeal. You cannot cite case law and statutes to change the reality. That is when you knowledge of Canadian immigration laws will help - so that your husband can move to Canada so you can live as a married couple since you will not be allowed to be in the US. Why so resistant? Why not just follow the law? Take your Carribean cruise after you have received your Advance Parole - you are only postponing the honeymoon about 3 months. What is 3 months compared to a lifetime together as husband and wife?

[diadromous mermaid 36]

Thank you very much for your reply. I did review the K1 guide on this website but still have a few follow up questions. When I last entered the US I had no idea that we'd get engaged, so I am not at all concerned about the validity of my current B2. If we were to get married now and then file for an adjustment of status, would I be permitted to leave and re-enter the US to visit my husband while my adjustment of status application would be pending?

In other words, if we were to get married now, apply for an adjustment of status (which does NOT require me to be on K1, since I had no actual intent to remain in the US at the time I entered the country under B2) but not receive the AP or LPR before our honeymoon in the Carribean, would I be permitted to re-enter the US to visit my husband?

I don't see what the big to-do is! Am1996, if I am not mistaken, these are the facts you've shared, as concisely as I can put them.

You are already here for 2 months on a B2, and the term of your stay is 6 months, therefore the expiry date of your current legal stay on the visa is in 4 months hence, i.e. sometime in November-December 2006.

You wish to marry in the Caribbean at the end of the year for 'tax purposes'

You are taking a year off, and will resume medical studies sometime early in 2007 here in the USA.

You have a need to return to Canada for a couple of months after the Caribbean trip.

OK, my suggestion, rather than to try to test the legal system and interpret the regulations to suit your needs would be to:

1. Remain in the USA, in status, until near the expiry date of your B2 (November, December, whichever)

2. Prior to the expiry date of your visit, travel to the Caribbean and marry, as you have intended.

3. Compile your taxes as joint prior to the end of the year

4. Leave the Caribbean. You return to Canada, your husband returns to the USA

5. Your husband files the K-3 and the joint tax return, upon arrival in the USA,

6. While the K-3 is in process and you are in Canada for the purpose of tending to the matters that you declared would require you to return to Canada

6. When the K-3 is approved, return to the USA, legally and without having to convince the CBP to accept your 'version' of the regulations.

What is the difficulty in this? Why the mountain out of a molehill?

Edited August 4, 2006 by diadromous mermaid

[am1996 0]

Zyggy brought up a great number of fantastic points and a wealth of his own experience as a former border patrol officer and for that, I am extremely grateful to him. I mentioned some of the issues that I saw in his posts not to offend him but to rather highlight the fact that the law is different, so that I'd have to be VERY VERY unlucky to have to deal with those issues.

Once again, we have not decided on any particular course of action and are still gathering information. We are not now, do not intend to and will NOT in fact be violating any immigration laws, so even in the worst case scenario there will NOT be any detention centers in our future (my fiance has already checked into all that).

Immigrating to Canada over something like this is just not an option. First, my fiance is a corporate lawyer with one of the largest law firms in the country and he can't nor does he have any desire to practice law in Canada (I wouldn't actually mind moving to Canada with him, but it's not an option for him). Second, if we do come to a conclusion that our strategy is unreasonably and unacceptably risky, we will just go with one of the alternative options that we don't like but that presents absolutely no risk to us.

As an aside, I completely understand that to many readers of this thread it sounds like I am being stubborn and reckless when I say that I reluctant to postpone/change our current plans. Once again, we will change if but only if the facts cause us to think that any other choice is unreasonably risky and we simply don't have sufficient information to determine that at this point. One of the reasons that our plans right now are more or less set is because (i) if we get legally married in the US before the end of the year, for tax law purposes we will be deemed to have been married for the entire year, which will save us thousands of dollars in income taxes, (ii) the Caribbean location is anything but random, so we can't just move it to a US territory and (iii) the timing, while a bit more flexible than (i) and (ii), is still fairly rigid, so it'd be very difficult to postpone it by several months.

By the way, even if we were to find a way to somehow to postpone the trip, I have been told that an AP/LPR petition can take up to a year to get approved (and in some cases it can even take longer) so we essentially would have no way of knowing when it would be safe to schedule the wedding, unless we wanted to do it in 2 years or something similarly insane. Is this correct?

[diadromous mermaid 36]

Zyggy brought up a great number of fantastic points and a wealth of his own experience as a former border patrol officer and for that, I am extremely grateful to him. I mentioned some of the issues that I saw in his posts not to offend him but to rather highlight the fact that the law is different, so that I'd have to be VERY VERY unlucky to have to deal with those issues.

Once again, we have not decided on any particular course of action and are still gathering information. We are not now, do not intend to and will NOT in fact be violating any immigration laws, so even in the worst case scenario there will NOT be any detention centers in our future (my fiance has already checked into all that).

Immigrating to Canada over something like this is just not an option. First, my fiance is a corporate lawyer with one of the largest law firms in the country and he can't nor does he have any desire to practice law in Canada (I wouldn't actually mind moving to Canada with him, but it's not an option for him). Second, if we do come to a conclusion that our strategy is unreasonably and unacceptably risky, we will just go with one of the alternative options that we don't like but that presents absolutely no risk to us.

As an aside, I completely understand that to many readers of this thread it sounds like I am being stubborn and reckless when I say that I reluctant to postpone/change our current plans. Once again, we will change if but only if the facts cause us to think that any other choice is unreasonably risky and we simply don't have sufficient information to determine that at this point. One of the reasons that our plans right now are more or less set is because (i) if we get legally married in the US before the end of the year, for tax law purposes we will be deemed to have been married for the entire year, which will save us thousands of dollars in income taxes, (ii) the Caribbean location is anything but random, so we can't just move it to a US territory and (iii) the timing, while a bit more flexible than (i) and (ii), is still fairly rigid, so it'd be very difficult to postpone it by several months.

By the way, even if we were to find a way to somehow to postpone the trip, I have been told that an AP/LPR petition can take up to a year to get approved (and in some cases it can even take longer) so we essentially would have no way of knowing when it would be safe to schedule the wedding, unless we wanted to do it in 2 years or something similarly insane. Is this correct?

Where was it suggested that you immigrate to Canada?

You can't get AP/LPR if you are not already married! Please read carefully.

P.S. A corporate lawyer should know better than to try to become an expert in another field. Are you suggesting that he has read the entire INA?

[Kez/JWolf 6]

It takes about 90 days to get AP from the date you file..... at the moment most but not all AOS are completed within 10 months....

Kezzie

[am1996 0]

Where was it suggested that you immigrate to Canada?

Please see Kathryn's post above.

You can't get AP/LPR if you are not already married! Please read carefully.

I realize that. We can get legally married in the US tomorrow, if it would help us get the AP/LPR before the end of the year (the wedding is scheduled for the second week of January). My undderstanding is that it would be possible for us to get AP before the end of the year but that it was also extremely possible that it wouldn't happen by then. We can't proceed under such uncertain terms

[Kez/JWolf 6]

if you were filing for AOS now you would have your AP by the end of the year.... check the timeline data most people receive it with 60 -90 days..... you still have 4 months until the end of the year...

Think I would take that risk before I would risk what you are hoping to do...

Kezzie

[am1996 0]

if you were filing for AOS now you would have your AP by the end of the year.... check the timeline data most people receive it with 60 -90 days..... you still have 4 months until the end of the year...

Think I would take that risk before I would risk what you are hoping to do...

Kezzie

Ok, that sounds like a great solution! I thought that in order for me to file an AOS and an AP application I had to prove that I entered the country legally, which requires an I-94. Canadians do not receive I-94's, however. If I request it now, it'll take 2 months for it to arrive, which, of course would be a problem. Is it possible for us to somehow do it without I-94?