Canadian visiting US spouse. is adjustment of status possible?

[grrrrreat 109]

I understand that. What I meant was I thought you could only adjust status from within the USA after you came in for a visit, got married and decided to stay all on that trip without planning it before said trip. Otherwise, what is the point of going through a spousal visa, if you could just come across and immigrate from within the USA? I realize that you can marry anywhere and then get a spousal visa.

Again, where and when you get married is not relevant. The other parts of your second sentence are correct, i.e., "you can adjust status from within the USA after you came in for a visit and then decided to stay all on that trip without planning it before said trip". The point of applying for a spousal visa is for people who are NOT in the U.S. and wish to immigrate.

[canada_socks 97]

Again, where and when you get married is not relevant. The other parts of your second sentence are correct, i.e., "you can adjust status from within the USA after you came in for a visit and then decided to stay all on that trip without planning it before said trip". The point of applying for a spousal visa is for people who are NOT in the U.S. and wish to immigrate.

I guess I am just confused then. People are talking about filing for AOS while he is there on a visit, which I thought wasn't allowed. I thought the marriage had to be done on the same trip (which appears to be missing from the part that you 'quoted' me on).

Why bother with a spousal visa then if you can visit, change your mind and then AOS? I am just obviously very confused.

Edited August 13, 2013 by canada_socks

[grrrrreat 109]

I guess I am just confused then. People are talking about filing for AOS while he is there on a visit, which I thought wasn't allowed. I thought the marriage had to be done on the same trip (which appears to be missing from the part that you 'quoted' me on).

Why bother with a spousal visa then if you can visit, change your mind and then AOS? I am just obviously very confused.

I took out that part from the quote because it's not accurate. A spouse of a USC can adjust on a visit to the U.S. whether or not they got married in the U.S. "on the same trip". Maybe you are thinking someone who gets a K-1 fiancee visa, in which case they do have to get married after they enter. But OP has been married for four years, so he obviously doesn't have a K-1 visa.

A spousal visa is designed for people who wish to immigrate to the U.S. Visitor visas are designed for people who wish to visit. Someone who visits and then decides to stay can adjust status. I am not sure why you're still confused.

[bestest 1]

I took out that part from the quote because it's not accurate. A spouse of a USC can adjust on a visit to the U.S. whether or not they got married in the U.S. "on the same trip". Maybe you are thinking someone who gets a K-1 fiancee visa, in which case they do have to get married after they enter. But OP has been married for four years, so he obviously doesn't have a K-1 visa.

A spousal visa is designed for people who wish to immigrate to the U.S. Visitor visas are designed for people who wish to visit. Someone who visits and then decides to stay can adjust status. I am not sure why you're still confused.

Will they ask me on the interview for proof that I entered without intent for immigration? what kind of proof can I give for this?

[canuck-in-chitown 2]

I've given this type of situation a fair amount of thought - having myself been married to a USC long before actually deciding to immigrate to the US, and then ending up in process to do so through AOS from F1. It does seem in bestest's situation that there was definitely a pre-conceived intent to immigrate...

Now we moved to the US. That is my wife moved to the US. I have a Canadian address and come to visit her often (Im in America probably 95% of the time) and for long periods of time. We still haven't filed for anything but finally we are getting our act together and are about to send out the i-130 with all needed documents.

The brunt of the matter has to do with whether the fact that he was not yet intending to do so on this current trip will be sufficient grounds to provide for his ability to come through on AOS. Sounds like advice from a good lawyer might be a good thing here, gathering proof in this case may be very subjective.

And as Harpa noted, if he was not totally honest with CBP - then he should forget trying AOS!

Note:

Obviously they should have started this process via IR1 long ago, but that's not going to help now. Canada US marriages can make for tricky situations where it can be hard to decide which country to live in, especially when travel between the two is so easy and fluid and a six-month stay in either is so easy, I doubt bestest is trying to somehow beat the system - sounds to me like they are caught between a rock and a hard place. While not immigrating properly is no excuse, some understanding is in order.

[bestest 1]

 

The brunt of the matter has to do with whether the fact that he was not yet intending to do so on this current trip will be sufficient grounds to provide for his ability to come through on AOS. Sounds like advice from a good lawyer might be a good thing here, gathering proof in this case may be very subjective.

 

What do other people have to say on this point? does it matter that my intention was to immigrate, if that was not the original intent of this trip?

Is this path a dangerous one, and will I likely get a lot of trouble?

Like I said, at time of entry I really was planning to file the i-130 and head towards an IR-1. I have the filled out I-130 stating my address in Canada.... which is not usable for AOS.

Edited August 13, 2013 by bestest

[Hypnos 6,576]

Intent alone cannot be used as a basis for denial if it's the sole negative factor. That being said, filing for AoS is always a risk; filing for an immigrant visa is the cleanest option, but ultimately it's up to you. 95% of people seem to AoS without issue, but there are always the horror stories that crop up from time time.

[bestest 1]

 

Intent alone cannot be used as a basis for denial if it's the sole negative factor.

 

Wow, thanks!!! That's VERY reassuring! What is your source for that? and do you think they will ask about it at the interview(or need proof) or not even that?

[Hypnos 6,576]

"In the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Int. Dec. 2750(BIA 1980) clarified and reaffirmed. Matter of Ibrahim, Int. Dec. 2866 (BIA 1981)."

In your case, I would be concerned that you were already refused entry once, so clearly CBP suspected that you might attempt to do exactly what you are considering now (immigrate to the US on a nonimmigrant visa through filing for AoS). That being said, you would probably be ok to file for AoS, but it's always a risk.

Edited August 14, 2013 by Hypnos

[Sweetcheeksss 91]

Just curious...in the very 1st post on this thread the OP wrote " At the border they asked when I am planning on coming back to Canada. I told them September 15. They said OK they "will put that date into the system". They didn't put anything in my passport and let me in."

Do you think they actually wrote that in their notes? And if they did, wouldn't that help him (because he stated that in the beginning) or would it not make any difference one way or the other?

[NikLR 13,227]

  

What do other people have to say on this point? does it matter that my intention was to immigrate, if that was not the original intent of this trip?

Is this path a dangerous one, and will I likely get a lot of trouble?

Like I said, at time of entry I really was planning to file the i-130 and head towards an IR-1. I have the filled out I-130 stating my address in Canada.... which is not usable for AOS.

If you spend 95% of your time in the USA, I'm not surprised the CBP demanded you give them a return date and have proof of ties. And yes I think it's very risky to try and AOS after you told the CBP you only intended to visit and gave them a return date. If your AOS is denied you'd have to return to Canada and restart the entire process over again as an IR1. If you leave the USA before the AOS is done or at least until you have the AP, you have to restart over again. You likely would be denied entry to the USA. They do make notes on your file when you enter, whether they put anything in your passport or not.

You guys should have done this the right way from the start, before you moved back to North America.

FYI because you spend more time OUT of Canada than it it, you're not entitled to any Canadian health care.

Figure out if you want to risk restarting OR possibly a lifetime ban. Those are the risks you take with your AOS plan.

I sincerely hope you're not working in the USA falsely. That would be very bad for you. (You cannot work in the USA remotely, even for a Canadian company, without a US visa.)

Just curious...in the very 1st post on this thread the OP wrote " At the border they asked when I am planning on coming back to Canada. I told them September 15. They said OK they "will put that date into the system". They didn't put anything in my passport and let me in."

Do you think they actually wrote that in their notes? And if they did, wouldn't that help him (because he stated that in the beginning) or would it not make any difference one way or the other?

Yes I think they did. He shows a history of visiting and doing long stays. Canadians are allowed up to 180 days per 365 day period unless otherwise okayed by a CBP, in the USA. He's obviously abusing the privilege, by his own admission, and is lucky to not have been denied entry before now. Everything he wants to do bears a risk except the IR1 visa route. Is he allowed to do what he wants to do right now? Yes. Is it very risky? Yes. The consequences for it going wrong can be serious. But each person should make their own decisions based on their own knowledge.

[Teddy B 17,252]

My story is somewhat similar to the op's in regards to denial of entry and AOS.

My wife, a Canadian citizen, was denied entry for lack of ties to Canada. She had recently divorced her ex-husband and was living with her Mother so she had no property at the time. She was also self employed as a book keeper which didn't help matters much, because she really didn't have proof of employment ie: pay stubs or letter from employer. We also made the fatal mistake of no return plane ticket, because we weren't sure of her exact return date at the time.

She had come to visit me for short trips and I had gone to Canada to see her in the year we had been "dating". We then planned a two month trip for her to come visit me, a kind of trial run for our relationship. That was when she was denied entry. Upon her denial of entry at the Detroit/Windsor crossing, the POE officer gave her a list of items she would need to prove her ties to Canada in order to gain entry to the US. About a week later she had gathered everything on the list and we purchased another plane ticket, round trip. When she arrived at the Windsor/Detroit crossing she provided the POE officer with the list and all of her proof of ties. She was allowed entry but given a stern warning that she had better return on the date of the plane ticket. She was also told the return date would be entered into "the system". But she was never given an I-94 return stamp in her passport, that's the key. No return stamp, (used to be a little white card) means you get 6 months from day of entry.

About 1 1/2 months into her visit, I decided to propose to her. Long story short, we got married about 6 months after her arrival to the states. We decided that because of the previous problems and hassles at our border crossings (I was pulled into secondary twice) we didn't want to be separated with the chance that we wouldn't be able to visit each other until the marriage visa was approved, so we applied for AOS and were approved with absolutely no problems. Her denied entry was never an issue, nor was her supposed return date that was put into the system.

[bestest 1]

 

About 1 1/2 months into her visit, I decided to propose to her. Long story short, we got married about 6 months after her arrival to the states. We decided that because of the previous problems and hassles at our border crossings (I was pulled into secondary twice) we didn't want to be separated with the chance that we wouldn't be able to visit each other until the marriage visa was approved, so we applied for AOS and were approved with absolutely no problems. Her denied entry was never an issue, nor was her supposed return date that was put into the system.

 

That's very reassuring!! Did they ask anything about the entry at all eg date? reason?

[Dakine10 5,452]

Will they ask me on the interview for proof that I entered without intent for immigration? what kind of proof can I give for this?

They won't ask for proof of intent because it's irrelevant. What they generally look for is inconsistencies between your actions and the answers you give to any questions they ask. As was previously stated, they can't deny on only intent, but they can deny for misrepresentation. If they suspect anything is amiss, they will try to catch you in a lie. If you are honest, then that can't happen. Good luck.

[Dakine10 5,452]

Just curious...in the very 1st post on this thread the OP wrote " At the border they asked when I am planning on coming back to Canada. I told them September 15. They said OK they "will put that date into the system". They didn't put anything in my passport and let me in."

Do you think they actually wrote that in their notes? And if they did, wouldn't that help him (because he stated that in the beginning) or would it not make any difference one way or the other?

If it's true it's a non-factor, which is helpful because the adjustment would generally be approved in the absence of negative factors.

People do get tripped up by this when USCIS finds evidence to the contrary. So if someone quits their job, vacates their domicile, or has an event scheduled in the US after their return date they would have to be able to explain those inconsistencies.