My Name is Brandy and I am American, my husband Jason is Canadian.
We were married in April of 06 and it was very unexpected, he came down for his birthday and we ended up getting married with a justice of peace.
We then went back and forth a couple of months until we discovered that I was pregnant and then he packed his clothes and moved down to TN to be with me. he has been here ever since. I have a very good job so it wasnt a rush to get his papers done b/c I could support the both of us, now that our baby is born we would like to start his papers. everytime I start I get overwhelmed.

Problem. He did not come here on any sort of status .. he lived in Windsor which is like 15 minutes from Detroit and you are allowed to cross the border without any papers or passports. The majority of the time the border folks do not even record your crossing in the computer. So I do not believe I can adjust status if there isnt a status to adjust. Some of the papers need proof of crossing, but the border doesnt show an accurate record of crossing. What do I do?

Can anyone sort of lead me in the right direction, maybe tell me its not as hard as I am thinking.

I'm unsure whether there is anything special in place for a Canadian citizen, but for a person from any other country, the following would apply:-



As you married on the spur of the moment, and marriage was not the intention at the time your husband entered the States, your husband could have stayed in the US and adjusted status from that visit.

However, you say that since then he (or you both) have gone backwards and forwards between Canada and the US. From what you said about his last entry, you were married and it sounds as though the intention was to stay permanently with you. This may make this a case where you cannot adjust status in the US and your husband must adjust status from within Canada.

Hopefully others will be able to clarify further, as this is a bit out of my knowledge range.

What you've said is correct on the whole. The only thing is that there isn't any adjustment of status within another country - what he needs is to do is get a visa in Vancouver or Montreal and then return to the US. If he gets a K3 visa, he would adjust status in the US. If he gets the CR1 visa, no adjustment of status will be needed.

Unfortunately, it is hard as you are thinking (well perhaps not the forms themselves but the overall process) and takes a very long time.

First, you need to file the I-130 petition, which will result in a CR1 visa if you follow just that path. If you also want to go for a K3 visa for him, you need to file the I-129f as well. As it sounds like time is more of a concern than cost, I think you should go for the K3 visa - you'll get the interview several months quicker in Montreal than if he went for the CR1 visa.

However, I think with the baby on the way, you should first try a consultation with a lawyer. He or she may be able to tell you things we cannot on this board.

What was the date of his last entry to the US? Has he been here more than 6 months this trip? Has he been working illegally, or just sitting warming the couch?

If he returns to Canada to wait out the process for K3 or CR1, then he'll be gone for about a year, give or take a month or 2 or 6. And may or may not be able to visit during that wait time.

Trying to adjust status from visitor status (that is is official status) when upon his last entry he had intent to stay indefinitely could be tricky. Definitely speak with a knowledgable immigration lawyer, they'll usually consult for a nominal fee. Your best bet may just be for him to stay and adjust, but it still may be a long while before he can work.

We shouldn't be saying this as she's already revealed that upon his last entry he had intent to immigrate which means that trying to adjust status now is immigration fraud really. They should consult a good immigration lawyer about it.

Say for instance his border didnt keep a record of him crossing, even though he has no prior visas or anything like that basically no status other then visitor, can I adjust his status?

The answers you have had were not based on his status, they were based on the intent to stay permanently on his last entry. A visitor coming into the US with the intent to stay is visa fraud (although no visa existed in this situation, so is sketchy).

Even if you were able to file from his current (unknown) status, if USCIS got wind that he came to the US with the intent to stay permanently, then he would be looking at a ban from entering the US.

I read your post last night, but didn't want to reply till I spoke to my friend from Windsor who also entered thru Detroit. He had the same scenario as you. Since many laws have changed you may want to consult with an immigration lawyer. What he told me was he had to be in the USA for one year and then he filed for an I-94 and Adjustment of status. He also came here without a visa and said he had no problems, except for a long wait in the INS line. As I've said, maybe the laws have changed since then, but it worked for him.

Brandy - Please have a consultation with a lawyer. It's murky terriority we're treading into here and I don't want you guys to be led astray.

Really? that would be awesome! He has been here for over a year now. I just scheduled a meeting with InfoPass in Memphis TN for next week, so I will ask them my questions and see what they reccomend.

That is a good idea. Like I said, this was quite awhile ago and these laws seem to change all the time. At least you'll know exactly what to do. Good luck

Let me add, my friend did hire an immigration lawyer. It may be a good idea to at least have a consultation . I have read stories here where immigration has told people to return to thier countries and wait for the paperwork.

Hi Brandy,

I agree with Margot that you should at least have a consultation with an immigration attorney.

You might also want to check out this thread from the Canadian forum, might shed some more light on it for you:

http://www.visajourney.com/forums/index.php?showtopic=94085

Good luck with whatever you decide!

the difference between those two scenarios however is that the couple is not yet married, and planning on the Canadian crossing the border to get married and stay. Which as we all know is not entirely legal nor advisable due to potentially being denied AOS and deported, and I personally would never advise anyone to do that. THIS couple here however was already married, the Canadian returned to Canada and then found out his wife was pregnant so he returned to the US and stayed. Also illegal, but if he leaves the US he will definitely be barred upon trying to re-enter and won't be seeing his wife and kid for a very very long time. If he stays to adjust status, their chances are better of overcoming the overstay with the help of an immigration lawyer who has experience with this.

Probably 8 times out of 10, if the marriage is deemed to be genuine, AOS is granted. If he leaves however, he'll be gone for a long long time. Unable to see his family unless they can go up to Canada to visit him.

He still runs the risk of not being able to work for several more months, (but I'm assuming he hasn't been working during this past year anyhow) not being granted AP, and of being denied adjustment. At least he'll be with his new baby until then. And if needed, they can look into the Canadian immigration process in the meantime, just in case.

Recently there was a Can/Am couple on another forum that I frequent where they went down to Arizona to visit her US family and then decided to stay. He (the Canadian) successfully adjusted status based on their marriage, which took place in Canada and where they had been living for like 8 years prior to their vacation.

Forewarned is forearmed. What he did was not really smart and I wouldn't recommend that anyone do it. But its already done and if he wants to stay with his wife and kid, then applying for Adjustment now is probably the way to go, with the help of a knowledgable lawyer.

This is a case for lawyer. A complication is that these entries were probably not recorded anywhere, so cannot be documented with passport stamps, etc.

It's also a case for any newbies to take note of. Figure out your immigration path before you get married. Don't shoot yourself in the foot like this couple has.

I agree with Margot, the trailmix and pushbrk. This is a lawyer case --- good for you about the InfoPass appointment, also a good idea -- but try consulting with a lawyer as well.- before it gets murky.
If he has to go back to Canada, I would recommend you apply for the CR-1 instead of the K-3. Why? Because it results in an immigrant visa and it's way cheaper; and it takes about the same time.
Good luck, L.

You'll be much better off talking to the lawyer before any infopass appointment. Much better off. You don't want to shoot yourself in the foot again, do you?

Thank you for all your replies. I will go to this info pass appointment and then if I do not get the information I need then I will go to a lawyer again ( did this once before but I believe I knew more about canadian immigration then he did and he wanted to charge us close to 5 grand to do all the paperwork.... )

You can make your own decisions but there is an extremely good reason you should see the right kind of attorney before you go to an infopass appointment, unless you really do want to shoot yourself in the other foot too.

In short, you're certain to like the immigration attorney's advice better than the USCIS staff's.

If I could, I'd beat you in the head with a stick to get your attention but this is the best I can do.

Brandy, I think what Pushbrk is saying is that once you go to the INFOPASS appointment you can't 'un ring the bell'. Your situation is cause for ALARMS to go off.

Exactly.

You,ve done this once before? I think you definitely need to listen to pushbrk this time before you open a can of worms.