Greetings,

I am a Canadian citizen and have been going in and out of the US for quite some time under the B2 status to visit my bf (a US citizen). We got engaged 2 months ago and are planning on officially registering the marriage in the US and then doing a destination wedding in the Caribbean at the end of the year. I am currently taking a year off school/work and will be entering a medical residency program in the US next year, so I don't need an immediate employment authorization.

Our concern is that once we get married in the US and leave for the Caribbean, I may not be allowed to re-enter the US under the B2 or any other status other than K1, obtaining which would require me to return to Canada and needlessly wait for the K1 approval. Another option is for us to get married in the US now and to apply for an adjustment of status, but I understand that it can take a while for me to get the conditional green card. While the adjustment of status application is pending, would I even be allowed to re-enter the US after our trip to the Caribbean or would I be required to go back to Canada?

I suppose the easiest way for us to go would be not to mention anything about being married in the US and getting married in the Caribbean to the border patrol, which would allow me to come back into the US with a B2 status and then file the adjustment of status paperwork. Are there any problems with this approach?

Is there another viable option that I am missing that would allow us to get married in the US, go to the Carribean and come back to the US without any problems? I sincerely apologize if this has been covered in this forum before but I searched and could not find anything on point.

To enter the US with the intention of getting married and remaining you need a K1 visa...

Yes you can get married in the US but you will have to return to Canada..

If you enter on a K1 and get married you would need to file for AOS and AP to be able to leave and re-enter..

If you get married on a tourist visa and leave you stand the chance of being denied entry unless you can prove stronge ties to Canada and have no intention of remaining....

If you lie at POE by not mentioning you are married that is visa fraud...

I see you options as apply for K1 and get married in US then apply for AOS or get married outside the US and file for K3....

Hope this helps

Kezzie

I know of someone who tried the "easiest way" the OP suggested. The couple got married in Germany and then wanted to come back together. She (the non-USC) tried to enter on the basis of her visitors visa. And she was refused entry and was sent home. It's illegal to misrepresent yourself at the border as Kezzie said.

In short, you need some kind of marriage visa - even if you're Canadian. And you need Advanced Parole in your hands before you can go on your Caribbean trip.

Both above posts are correct - you need to use the K1 or K3. Despite the border, Canada and Mexico are NOT treated any differently than any other countries.

The waiting sucks, but at least you're close enough that visits during the process are a great deal easier than they are for those on other continents. Hope that's some solace.

Good luck.

Joey

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?

As far as I can see the only problem here is the desire to travel after marriage. If you're already in the US on a valid visa, and marry a US citizen, you don't need to leave the country and get a new visa. You can file for AOS from your B2 visa.

Why don't you do the "destination marriage" first (I assume its not a legal marriage), return to the US on your B2 and then marry in the USA and file AOS?


You would need the AP to return to the country because as soon as you filed AOS your B2 would no longer be a valid visa.

Please see my other reply..

As I said that is not possible. You are trying to get everything that you want. What were telling you is that is impossible. So you have to choose what is the most important to you. The trip or the marriage...

You can still take the trip.. but only after you have AP and that takes 3 to 6 months to get. So no immediate honeymoon outside the US. I suggest you plan a honeymoon in a US locale that is nice such as Puerto Rico, the US Virgin Islands or Hawaii.

If you apply for AOS, regardless of the visa you entered the US on, you will need to remain in the US until either the AOS application has been approved and you hold LPR status OR you receive AP.

I beleive (and someone please correct me if I'm wrong) that once you apply to adjust your status, whatever visa you entered on becomes null and void for the purposes of re-entry to the US.

Mark

That would be nice if she already wasn't paying with fire by having immigrant intent. Leaving the US at this stage of the game is far too risky..

Not true. You can travel after filing AOS if you have an H-1B or O-1 visa. Of course that's not relevant here, but I just wanted to clear that up.


Agreed. The best thing to do would be to not travel abroad until after getting the GC.

Are you currently still in the U.S. from the entry 2 months ago before you got engaged?

If so, and you entered the U.S. without intentions of marrying and staying in the U.S., then yes, you can get married and then apply for AOS.

You will have to wait until your AOS is approved and you get your GC or you can apply for AP and wait for that to get approved before you can leave the U.S.

Yep, that's my understanding as well.

We would very much like to officially get married in the US before the end of the year so we can subsequently file our tax returns as "married filing jointly." This way we would get a larger tax deduction on our '06 taxes.

I realize that. Wouldn't I get another B2 status upon my return from the Caribbean trip if I fully intended to return to Canada in a couple of months thereafter (I could probably even show them a ticket to Canada within the 6-month thereafter)?

If you want to be legally married in the US before you go on your honeymoon, you're going to be playing a dangerous game if you don't have an AP or GC. The fact is you can probably get away with it, but you are breaking the law if you re-enter the country having an immigration intent, and if you get caught the penalties are severe.

Yes, you could probably get away with this as I said above, but in the end you will be entering the country with the intent of staying, and this is illegal. Unless you plan on returning to the US on your B2, then returning to Canada and filing for a K-1.

That's the thing... they won't let you in as a B2... you have too much immigrant intent as the spouse of a USC who hasn't lived in Canada for about 6 months and has no ties back to Canada. Sorry.. but what you want just isn't possible. If you want the Carribean, fly to the USVI's or Puerto Rico. Those are the only two destinations you can go to.

Thank you all so very much for all the thoughtful posts I have received here. Just to clarify, Canada is not a part of the european Visa Waiver Program. Instead, under NAFTA, Canadians who otherwise qualify for a B1 or B2 status are typically just "waived through" -- we do not receive the actual I94, have 6 months (instead of the usual 3 months under the Visa Waiver Program) to remain in the US under that status. Upon the expiration of the 6 months, we can either apply for an extension (which is a hassle, since we don't typically get I94's, which are required for an extension) or can just leave the US and can then immediately come back to get another B1/2 and another 6 months.

While all that in mind, while AOS would effectively nullify my existing B2, wouldn't I receive another one if I were to leave and then come back to visit my husband?

As the wife of a USC it is unlikely you would get a B2 as you would be deemed to have immigrant intent.....

Maybe you should go and speak to an immigration lawyer....

Kezzie

Actually its more the fact that by leaving the US without AP while filing for AOS, you give up the AOS. So although you may get another B2, you're initial filing would have been abandoned. Also you may be refused entry under B2 because you're intending on remaining in the USA.

Do you think there would be 100's of canadians applying for K1 & K3 visa's if it was as easy as you think it is.....

I think not...

Kezzie

Actually, I have plenty of ties to Canada -- my whole immediate family is in Canada, I have a Canadian driver's license, a Canadian license plate on my car (I never established residency in the US since I always fly in and out to visit my now fiance, so I am not required to register it here), a Canadian bank account, etc... If I could also show them a plane ticket back to Canada within 6 months from my entry date (I do actually intend to return to Canada and to celebrate my birthday there, which will be within 6 months from our intended wedding date), would that solidify my case that I had no immigrant intent?

Do you intend to move with your husband to Canada or the USA? If the latter, you have immigration intent.

All of the things you listed do not show strong ties to your home country.... do you own a house there? do you have a job to return to? Children waiting for you?

A return flight ticket means nothing, nor does your car, nor a bank account, and nor your birthday....

Kezzie

From what you're saying it sounds like you really don't want to give up your freedom of movement between the USA and Canada. Unfortunately when you get married you will have to lose that freedom while you apply for a Green Card. It sucks, but this is the reality that almost* everyone here has to face.

*Not people with H-1B's like myself! Sorry!

There are many reason for many Canadians to apply for a K1 (if they actually intend to enter the remain in the US for a while while they await their employment authorization and LPR, for instance), none of which seem to apply to me. I do know that since I am here on a valid B2 status (I honestly had no intention of immigrating to the US when I last entered the country), I do quality for an AOS without any need for a K1. That's not the question, however

Let me let you in on something... I am a former CBP officer who worked for years at a US-Canadian land POE. I am telling you this, because there is a little misconception that Canadians seem to have. You have no rights that any other alien has other than the fact that a Canadian Citizen does not need to visa to be able to enter the US. What that means is that a Canadian citizen does not need to go through the protocols that other nationals need to do to be able to request entry to the US at a POE (i.e. getting a visa). Other than that the requirements for entry to the US are the same for any alien in the INA. It doesn't matter if you're from Canada or Kazakhstan, the law on entry treats you equally. NAFTA only covers trade and movement of goods.. it does not cover immigration or movement of people.

Also, I'd like to see someone try to stay in the US for 6 months, leave and try to come back in again. I have news for you, they would get denied pretty quickly. A B1/B2 status is not mant for someone to try to stealthily live in the US.. which is what you suggest implies. CBP knows more about you and your movements than you know about...

INA Section 214B requires that any alien that enters the US is considered to have immigrant intent. It is the burden of the alien to prove otherwise to the satisfaction of a CBP officer. Most Canadians don't have a problem overcoming this since they can very easily prove their links to Canada and that they have no interest in immigrating to the US.

You do not have this. YOu are getting married to a US Citizen and have besically been living on his support in the US for 6 months and have no job, or any other ties to Canada. You madam, are a prime candidate for getting sent back home. I know this because I have personally sent home hundreds of naive Canadians like you who had no interest of knowing what the rules are. So I suggest that you read what you see here and do what we say necause we are looking out for you. The CBP is looking out to enforce the immigation laws of the US and does not give a rip about you...

Misrepresentation and removal are very serious things and the CBP does not take kindly to it...

So if you want to be away from your husband for years, go ahead and do what you plan... If you want to stay with your husband, you're going to have to make sacrifices... and if you haven't heard, that's what being married is all about...

Thanks for your post, it certainly puts a number of things in perspective. I don't mean to argue but just want to clarify a couple of points you've raised:

Please see this: www.burningart.com/mizpoon/B-1%20Visa%20Primer.doc

Here's a quote: "Due to the North American Free Trade Agreement (NAFTA), Canadian citizens are also visa exempt. Many Canadian citizen visitors often times are "waived" through immigration and not issued a Form I-94. This can lead to problems in extending their stay and/or changing their status in the U.S. and it is generally safer to have the person simply return to Canada and reenter. Furthermore, the rules regarding B-1 activities for Canadian citizens are broader than for other B-1 nonimmigrants although the enumeration and foreign residence abroad requirements remain the same as for other B-1 nonimmigrants."

Actually, as a medical student, I use medical and residency loans for support, so my now fiance provides no support for me.

Actually, I am trying to find out what the rules are, which is the reason that I posted in this forum in the first place. I have already been advised by an immigration lawyer that I do qualify for an AOS since I am here on a valid B2. So, I am trying to determine whether I would qualify for another B2 if I could demonstrate an actual intent to return to Canada to wait for the AOS to be approved. My understanding is that only the present intent is what's at issue when I enter the country -- in other words, the fact that I would eventually return to the US as a conditional permanent resident would not change the fact that I would seek entry into the US after the Carribean trip with a full intent to (and would actually) return to Canada prior to the expiration of the 6 month period that applies to B2's. Is there something illegal/improper about this? If so, please let me know. Once again, I have no intention of knowingly or unknowingly violating any laws but in order for me to do that, I need to know what they are.

Once again, thank you all for all the replies. They are very much appreciated!

Are you planning on returning to Canada and applying for K-1 visa? If not at some point you are going to be entering the US illegally on a B2.

Right now you are not breaking the law because you didn't intend to marry when you entered on a B2, but if you get married and try to return on a B2, you'll either get denied at the border, or it could cause you problems later down the line.

As others and myself have said, if you intend to live in the US with your husband you should do the following:

Get married in the USA, file for AOS and AP, and not travel until you either have the AP or you have your Green Card.

That is correct in that there is a treaty (not NAFTA) that states that a visa is not required. You are confusing visa with entry. A visa is a ticket that allows you to request entry at a POE. A visa does not guarantee you entry to the US if there are factors that make you not eligible for entry to the US. Having immigrant intent is one of them. And it doesn't matter if you're a Canadian or from somewhere else, those rules still apply.

Notice it states enumeration and foreign residence requirements... Enumeration means that your employment must primarilly be outside the US... foreign residence rwquirement means that your residence must be outside the US. From what you have told us, you fail both of those tests... that plus having a US Spouse pretty much kills the deal...



That doesn't matter.. the point is that you've been staying under his roof under his support. (who pays the utility bills, mortgage/rent/etc.)






Nothing illegal about it until you commit a material misrepresentation (and witholding information is also a material misrepresentation). But the INA does not allow individuals who have your particular details to be allowed entry to the US. You can go wherever you want... but the CBP does not have to let you back in. In your case, with near certainty I can say that if you leave the US, you will not be allowed back in...

So no... in my opinion, you would not be permitted entry to the US under B2 status if you left the US and attempted to reenter the US. The point is that you didn't have immigrant intent when you entered the last time.. you do now... and what your intent is now determines whether or not you will be permitted entry. It doesn't matter how many times you state you will cross back and forth before you do immigrate.. The point is you do have it.. and that's all that matters...

This is a very good point. The question is, however, is it the present intent or the future intent that is measured? For instance, if a person seeks to enter the country on H1B but is hoping to find somebody to marry in the US and to subsequently immigrate to the US, I believe that he would still be allowed into the country as long as he can conclusively demonstrate that he still intends to and has the means to comply with the terms and conditions of his H1b by returning to his home country at the expiration of his visa and then applying for a K1, etc... If that is correct, I believe I would qualify for the B2 status upon my return from the Carribean since I would fully comply with it by returning to Canada within the 6 month period. Please let me know if this is or is not the way the law operates.

That is correct in that there is a treaty (not NAFTA) that states that a visa is not required. You are confusing visa with entry. A visa is a ticket that allows you to request entry at a POE. A visa does not guarantee you entry to the US if there are factors that make you not eligible for entry to the US. Having immigrant intent is one of them. And it doesn't matter if you're a Canadian or from somewhere else, those rules still apply.

Notice it states enumeration and foreign residence requirements... Enumeration means that your employment must primarilly be outside the US... foreign residence rwquirement means that your residence must be outside the US. From what you have told us, you fail both of those tests... that plus having a US Spouse pretty much kills the deal...



That doesn't matter.. the point is that you've been staying under his roof under his support. (who pays the utility bills, mortgage/rent/etc.)






Nothing illegal about it until you commit a material misrepresentation (and witholding information is also a material misrepresentation). But the INA does not allow individuals who have your particular details to be allowed entry to the US. You can go wherever you want... but the CBP does not have to let you back in. In your case, with near certainty I can say that if you leave the US, you will not be allowed back in until you have a visa that allows that (i.e CR-1 or K3)

So no... in my opinion, you would not be permitted entry to the US under B2 status if you left the US and attempted to reenter the US. The point is that you didn't have immigrant intent when you entered the last time.. you do now... and what your intent is now determines whether or not you will be permitted entry. It doesn't matter how many times you state you will cross back and forth before you do immigrate.. The point is you do have it.. and that's all that matters...

I am sorry but I am not sure that I understand the question. I am not required to apply for a K1 visa now since I am in the US under a valid visa. Upon us getting married, I would not qualify for a K1 visa since it is a fiance visa, so married people do not qualify for it.


I disagree (obviously) but your analysis is certainly reasonable and is giving me much pause here.

With all due respect, under this analysis all people entering the country on a B2 visa to visit US relatives would not be allowed in unless they were paying their share of the mortgage, utility, etc...

This is exactly what I am trying to understand. Lots of people have future immigration intent. Mail order brides, for instance, enter the country to "visit" men and if they like each other, they return to their home country, get K1's, etc... Workers get H1B's but hope to eventually get a chance to immigrate to the US. Isn't the test not what you future intentions are but whether you intend to immigrate to the US during this particular entry into the country? If so, my answer will be a resounding NO (I will actually come back to Canada), the pendency of my AOS application notwithstanding.

Nobody is saying you cant do AOS.. as you are in the States and you did not enter with the intent of remaining so yes once you are married here in the States you can file for AOS.....

What we are saying is you cant leave the States and then re-enter unless you have filed for AOS and have AP or Greencard....

If you do then you will most likey be denied....

Kezzie

I daresay, most 'mail order brides' come from countries where the visitor visas are few and far between for the very reason of intent.

I sincerely apologize for this long discussion and for the barrage of replies. I really am not arguing but am just honestly trying to drill down to the way the law works, so I know what to do. Once again, thank you all so much for all this information.


The AOS is not really an issue in my case. If it can help, we can just apply for an AOS AFTER we come back from the Caribbean (by law, I am required to get an employment authorization within 90 days from my AOS application, which is all I'll need to start my residency in July '07). The point is that we will be married at the time I will be entering the US from the Caribbean.

OK, K3 visa then.

H-1B visa's are "dual intent" which means you are allowed to have immigrant intentions and have a H-1B. Same is true for an O-1 visa.


The fact is that you will be entering the US, as the wife of a USC with intention to file for AOS. This is immigration intent. To do this you need a K-3 visa. If you try to enter on a B-2 and the CPB figures out your intentions, you will be deported to Canada, and possibily banned from re-entering the country.

No matter how you argue this it comes down to 1 simple fact. Right now you are legally in the USA on a B2, the next time you enter on a B2 you will be doing so illegally as you intend to stay. You're breaking the law by leaving the US with intention to return no matter how you try to figure out a way around it.

Please don't risk it!

I think what might be getting lost is that there are certain assumptions made by CBP when a person is single versus when a person is married.

The assumption for you as a single person on a B2 visa is that you will return home. Sure, there's always a chance you've found someone and decide on a whim to get married, but the usual intent is to comply with the full terms of the visa (i.e. not immigrate).

The assumption for a married person is that they are intending to live with their spouse. No matter whether you arrived in good faith on your B2 and didn't intend to immigrate, once you're married, the assumption scale shifts drastically against your intent to immigrate. So what Zyggy has been telling you, despite your disagreeing in whole or in part, is that the assumption of any CBP officer will be to scrutinize and weight more heavily assuming that you want to immigrate.

While in process, K3 and CR1/IR1 couples face similar scrutiny. (Heck, I was only dating my now-hubby at the time and got grilled by a CBP officer because instead of working full time I was going to school...that small shift in my lifestyle made me more 'likely' to have immigrant intent...and I wasn't even engaged yet!)

The short answer on leaving is, if you have filed for AOS, you abandon that petition if you leave the US without Advanced Parole or a valid Green Card. If that petition is abandoned you must apply via an immigrant spousal visa K3 or CR1/IR1. The concept of coming and going as you have on a B2 doesn't work so well in the world of AOS.

ok you just dont get what I am trying to say... so here goes again

1. To be able to do AOS from VWP/B1/B2 you enter then country with no intent to remain and on the spur of the moment you get married.... you wish to remain in the US.... It is allowed for you to file AOS... but you canot leave the country until you have either AP or Greencard...

2. You enter on a VWP/B1/B2 and get married and go off to another country to have a wondeful honeymoon... to re-enter the USA you would need a K3 visa.. you can not re-enter on VWP/B1/B2 and then do AOS as you would have immigrant intent on your last entry....

Kezzie

Ok, please take a look at the following thread on this forum. Why aren't they having trouble with the "immigration intent"? http://www.visajourney.com/forums/index.php?showtopic=24989

Because they are not married yet...... and they have evidence of strong ties to Canada....

Kezzie

Also, they are also applying for a K-1 visa, which apparently you are not intending on doing. You seem to think you can come and go from Canada until you decide for file AOS, which you can't.

This is a slightly different question. It is not illegal to visit the USA while a K1 is being processed, provided one can demonstrate strong ties to their homeland: a job, property, that sort of thing. Note that people have been denied entry under these circumstances.

Once you are married to a USC (as you will be) the whole balance of assumptions shifts against you - and remember that you need to prove a lack of immigrant intent - they don't have to prove that you have it.

Makes total sense. Please take a look at this then: http://www.visajourney.com/forums/index.ph...amp;hl=canadian

Again, they are applying for a visa.

If you are going to return to Canada and apply for the correct visa to re-enter the country to file AOS, then you probably won't have any issues. However from what you've said on this forum, you have no intention of filing for a "K" visa of any kind.

I have evidence of strong ties to Canada, so that's not a problem. Also, ties to Canada are necessary to establish your non-immigration intent, correct? Doesn't the fact that they are engaged evidences their obvious immigration intent? I am not sure that I see the difference between that and my situation.

Plus the fact that they probably disclosed that they have a visa pending, indicating that they are not trying to skirt the system.

Incidentally, anyone in this position can also be denied entry...and some have. One person on this board intended to come to the US and be married and then return to Canada and file a K3. She was denied entry to the US for the wedding because the CBP officer thought she had immigrant intent. She ended going the K1 route.

I see you're ignoring my question! I'll ask again - do you intend to apply for a K visa?

Note that OP in that thread was well aware that he needed to show strong ties to Canada to be admitted for a visit. He provided that proof, and (perhaps also important) got a sympathetic CBP officer. Plus, of course, he could show proof of his visa application and the officer was convinced that he would not jeopardise his legal status by immigrating illegally.

They have to return to their own country to complete the K1 process what better tie than that.... But you have clearly shown that you dont want to belive what we are trying to explain..... I as said before maybe an appointment with an immigration lawyer will put you right....

Or you can do what you intent to do and them sort it all out after you are refused at POE....

Good Luck

Kezzie

If you marry on your current visit and apply for AOS (perfectly legal) and subsequently leave the USA your AOS application will be considered to have been abandoned.

You could marry and attempt to reenter after your honeymoon, but your chances of being turned away are high.

The difference is the type of visa.

The fact someone is engaged evidences immigration intent. Filing for a non-immigrant (K1) visa establishes equal intent to follow the USCIS rules for legal entry into the country. Disclosing both to a CBP officer would be weighed together.

Married to someone, filing AOS and then abandoning your petition to leave the US for whatever reason, and then subsequently trying to return on a B2 visa (or other 'visitor' type visa) would be weighed all together as well. You've had it explained earlier in the thread how a CBP officer might view them all together (zyggy).

What you consider strong ties to Canada (as you described earlier in this thread) aren't necessarily what a CBP officer would call strong. The evidence of strong ties to Canada is a job (letter from employer stating you're expected back on such and such a date), mortgage/property (with paperwork to prove such)...and equally strong items. If you have other ties along those lines that you haven't mentioned that fall into the types I've mentioned, then you might be fine.

I am not ignoring your question. Answering it requires me to understand the law and my options, which at this point I do not. In other words, it certainly appears that if I get married in the US prior to my Carribean trip, I may be required to apply for a K3 visa, which would not be a problem. The above links seem to indicate, however, that I would still be allowed to enter the US to visit my husband while the K3 application was pending as long as I fully intended to go back to Canada, which is exactly what we want to to happen.

Once again, for our purposes it makes no difference whether I eventually receive my EAD and LPR through a K3 or through an AOS application that I would file while I am here on B2. The key is being able to leave and return to the US while the applications are pending, which, according to the links above, is certainly possible, legal and is done all the time.