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[trailmix 77]

In any consecutive 365 days, you cannot spend more than 6 months in the US. That's the law.

That said, if he comes back a second time, he may be seen as overstaying his visitor visa, which can keep him from being granted immigration status.

Be very careful, as you are walking a thin line of legality. Quite frankly, the "go home for a few days" option may very well seem awry to the consulate.

Crickey! Hope you don't mind me quoting you

the 6 month stay does not "reset" if you leave for a day or week. it is 6 months out of every 12months, but remember that is the maximum that he can stay. There's no guarantee that he'll be allowed back into the US, especially if he has no proof that he is going to go back to Canada-job, lease, etc.

Why would you say that when it distinctly says differently on the CBP site, and that they can apply for an extension? I absolutely agree that there is no guarantee anyone can get in. It is always up to the CBP Officer no matter what.

[thermophile 0]

Crikey is right-the law isn't 6 months out of every 12. it's 6 months at a time. however, I don't think that he'd be allowed back in at all if he's been here 6 months goes home for 1-2 months then tries to come back for another 6 months. You have to prove that you aren't living more in the US than in Canada (how would you do that if you've been in the US more than 6 months of the year?). Also, if you come into the US saying that you are planning on staying 6 months, they will probably want serious proof of money-in-da-bank. And if you come into the country saying that you are staying 2 weeks and are really planning on staying 6 months AND get caught you could get banned for lying to CBP.

In any consecutive 365 days, you cannot spend more than 6 months in the US. That's the law.

That said, if he comes back a second time, he may be seen as overstaying his visitor visa, which can keep him from being granted immigration status.

Be very careful, as you are walking a thin line of legality. Quite frankly, the "go home for a few days" option may very well seem awry to the consulate.

Crickey! Hope you don't mind me quoting you

the 6 month stay does not "reset" if you leave for a day or week. it is 6 months out of every 12months, but remember that is the maximum that he can stay. There's no guarantee that he'll be allowed back into the US, especially if he has no proof that he is going to go back to Canada-job, lease, etc.

Why would you say that when it distinctly says differently on the CBP site, and that they can apply for an extension? I absolutely agree that there is no guarantee anyone can get in. It is always up to the CBP Officer no matter what.

[TrueNorth 0]

Wow that's a lot of info to digest. To the one person who told me to get married -- we're already married. We married in Vancouver in July 2007 as I stated in my original post.

We went to see an immigration lawyer today who told us we can petition from inside the US while my husband is still here. He said since my husband entered the country legally (whether as a visitor or not), I can still petition for him now. I am really wary about this, though we'd called a visa/immigration hotline a while back who told us the same thing.

I was looking for why we didn't get an I-94 when we entered the US, and that's because Candian citizens don't require one. Also, Canada isn't in the Visa Waiver Program. So there are "special" rules that seem to apply between the US and Canada, though I do not want to do anything to jeopardize our futures. I'm really uneasy about the idea of petitioning for him even though when we entered the US we had no *intention* of his immigrating. The plan has always been for him to go back to Canada while I then petition, and wait while he lives and works there til allowed to come in as an immigrant. This new information is making me really confused.

I found a website which said

"Sometimes in order to avoid a lengthy separation, the couple returns to the U.S. immediately after the marriage (using a visitor visa) and proceeds to file the necessary applications once they are both in the U.S. Often the USCIS does not like this, and it is not uncommon for the USCIS to stop the foreign-born spouse at the Port of Entry and exclude him or her from the U.S. as an intending immigrant. However, if the foreign-born spouse manages to enter the US, USCIS will not deny his or her application for a green card solely because he or she entered the U.S. on a temporary visa when their real intent was to remain permanently in the U.S. You should instead apply for the K-3 visa in order to work and live legally in the US, while waiting your permanent residence."

http://www.workpermit.com/us/family_visas/spouse.htm

Was that paragraph not extremely contradicting or did I just read it wrong?

I sent some info I found online over to the lawyer. He seems to think it will be ok for me to petition now with both of us here, but I'm uneasy.

[thermophile 0]

"Sometimes in order to avoid a lengthy separation, the couple returns to the U.S. immediately after the marriage (using a visitor visa) and proceeds to file the necessary applications once they are both in the U.S. Often the USCIS does not like this, and it is not uncommon for the USCIS to stop the foreign-born spouse at the Port of Entry and exclude him or her from the U.S. as an intending immigrant. However, if the foreign-born spouse manages to enter the US, USCIS will not deny his or her application for a green card solely because he or she entered the U.S. on a temporary visa when their real intent was to remain permanently in the U.S. You should instead apply for the K-3 visa in order to work and live legally in the US, while waiting your permanent residence."

http://www.workpermit.com/us/family_visas/spouse.htm

Was that paragraph not extremely contradicting or did I just read it wrong?

I sent some info I found online over to the lawyer. He seems to think it will be ok for me to petition now with both of us here, but I'm uneasy.

I dont' think that it's really contradicting itself, but it does seem to be a bit of a double standard. He could have been denied at the border for trying to come into the US married to a USC, but since he didn't everything is fine. I disagree with the suggestion to file for a k3 though, because the purpose of the k3 is to get him into the country. It does not allow him to work. So if you wanted to go this route, remember that he can not leave the country because he probably won't be let back in. Also, look at the current processing times for the AOS (adjustment of status) and time from filing AOS to gettting EAD (employment authorization). Can he stay in the US, not working, as long as it's going to take to get all the applications in and processed? Make sure that you can prove that he had no intention of immigrating when he crossed the border a few months ago. Does he still have ties to Canada-house, job, etc?

Also, I try not to put too much credit in commercial immigration websites-they're going to say whatever they need to to get you to use their services. look at USCIS and see what they have to say about entering the US on a visitor visa (which is what he has even though he didn't have to apply for it, it's just basically automatically granted to most Canadians).

Edited February 13, 2008 by thermophile

[TrueNorth 0]

We asked another lawyer and so far from 3 sources we have been told we can file the petition while he is here. I am still wary about it so I made an infopass appointment to speak to an immigration officer. Worst comes to worst we file for extension of his visitor's status so he can be here for the birth, then he will go back and we will file then while he's in Canada. Whatever immigration tells me is the right way to do this. I will be back!

[rhymeswithcandi 0]

This might sound shady but unless your passport is stamped or there was some record made of your entering... how then really do they know that you have or have not stayed longer than 6 months without exiting?

[TrueNorth 0]

This might sound shady but unless your passport is stamped or there was some record made of your entering... how then really do they know that you have or have not stayed longer than 6 months without exiting?

Thing about that is, there's this paper called an I-94 which states when you're supposed to leave, only it doesn't apply to Canadians so they don't receive it. It says so right on the form itself! I downloaded a copy. The way they know how long you've been in the country is they do their jobs the right way. I suppose Border people are GOD when it comes to this stuff so you have to rely on them to input the info correctly. We can certainly show dated receipts and things from when we were in Canada because we stayed at a hotel the last week we were there, and we can show dated receipts for when we stayed in hotels on the way down as we drove to TX. It took like 5 days of driving. We also showed up at an emergency room in Van Horn TX when I started spotting back in October, so the people there can testify that hubby was in the US at the time. I figure if needed we have people in Canada who knew we were leaving to back us up. I don't think the border people would have much to go on, honestly. I think it's in their computers, but without the I-94 which we aren't granted anyway, we have to trust that they know how to do their jobs.

This whole business is different when it comes to Canadians because Canada isn't a VWP country AND you don't get an I-94, and you get 180 days. I wanted to find a lawyer who actually knew something about CANADIAN stuff because the ones here in TX are mostly educated and experienced with Mexican/USA immigration.

[TrueNorth 0]

You're gonna love this:

We went to an infopass appointment at the department of homeland security and went to the desk and told the lady what was what and she said that since hubby didn't have a passport that he can't prove he entered legally. (EVen though when he entered last year a passport was not required. She seems to have forgotten or not known this info.) So we get a number and wait, then get sent to another window to talk to a guy. THIS guy says we should have received an I94. *sigh*

The I94 states right on it: "I-94 Arrival/Departure Record - Instructions

This form must be completed by all persons except U.S.Citizens, returning resident

aliens, aliens with immigrant visas, and Canadian Citizens visiting or in transit."

So I inform the good Department man about this fact, and I ask if they have us in their computer. He says that the computers at the borders aren't connected to their computers down here in TX.(What?!) So then he gives us a paper to get in touch with some inspectors at the local airport (don't know why because if he's got nothing how will they?) and sends us on our way.

So yesterday we call up the crossing where we entered and ask them for some paperwork to show that we were inspected and to let us know what date we'd have to leave by, and he says he has no paperwork to give us. He asked hubby about where he lived in Canada, and since husband currently lives in his family's house, he is told by this person that he doesn't have a permanent residence and is therefore in the US illegally already!

If I can wrap my mind around this, the points are:

• We come in and follow every rule we're given. We comply, give all the info, tell the truth.
• We are treated like we're going to commit a crime and practically threatened while being interviewed and inspected.
• We spend at least 2 hours at the crossing, trying to comply with all laws of the US and abiding by and respecting everyone. We tell them we're married, we say how long hubby wants to stay, the works.
• Border guy leaves our stuff outside the car after he annihilates it all inspecting it, leaving us to pack up again in the wind, cold and rain.
• Border guy finally lets us in, but doesn't give us an I94 or any proof of inspection or any date by which to leave. We don't know we're supposed to get one, as we figure we just spent over an hour with the man so he must have put info into the big glowing box in front of him with a keyboard attached.
• We go on our way with the plan of staying about 4 or 5 months (within the 180 day limit for Canadian visitors), then having hubby go back to Canada for a while (a few weeks) then come back for the baby's birth, stay a couple of months, then finally return to Canada indefinitely until we can work out a K3.
• Now we found out about a possible extension of the visit, so we wanted to file that paper ($300 filing fee) but can't because we don't have an I94. Which means that everyone else from every other country gets one and can file a 6-month extension EXCEPT Canadians, who are allowed only 6 months.
• Oh, did I mention that the border patrol person at the crossing ALSO told us there is no such set amount of time a Canadian visitor can visit? Even though 180 days is clearly printed on the CBP and the USCIS websites?

Now we are wondering two things:

1. If he leaves and tries to come back, will the US suddenly have access to the records of his entry last year (which they apparently can't access NOW for some reason) and then deny him entry or even ban him based on passport, permanent residence, or some other made-up problem?

2. Should he adjust here to avoid that possible mess, but possibly get denied because he doesn't have an I94 to begin with?

3. We're not going to have him overstay without paperwork filed because I know that triggers a ban on re-entry, so I don't want him to do that.

4. We don't have enough MONEY to adjust now, anyway. That's some expensive paperwork, and we can't afford to lose thousands of dollars if in fact it turns out to be the wrong thing to do!

5. We haven't received an honest, straight answer from any Government entity so far. I feel very distrusting of this entire process and pretty much terrified that I'll just never see hubby again once he goes back. We have a child on the way, and most likely at some point I'll end up on Welfare if he can't support me (he certainly can't if he's maintaining his own rent/utilities/food/new furniture and all to establish his own apartment in Canada!). Soo I can go to the gov and say the separation would cause extreme hardship (which it would) but at this point, would anyone believe me or even CARE?

6. Would going to a congressperson or senator have any effect? How about possibly asking organizations which usually help folks like me? I feel so decimated.

And can anyone here tell me why it is that no matter where I present my story or how many times I insist that I am trying to do things legally (because I am a very perfectionistic uptight ####### retentive type A person) they keep telling me I was intending to commit a crime?? I have never commit a crime in my life. I have never taken an illegal drug or ever even been drunk. I don't even have a speeding ticket. I'm a goody two shoes! So what's up with this treatment? What I am INTENDING is INTENDING to find out the truth about my legal options, but the gov doesn't actually know what those are or they change them on the spot.

[bluegreen 0]

I'm sorry you have been getting such a runaround! The rules for Canadians seem so ambiguous. I am not in the same situation as you, as I arrived here on a visitor visa 3 months ago, THEN got married, and have now applied to adjust. I didn't have an I-94 either, and just put "None" or "None-Canadian visitor" anywhere the form asked for it.

I think, basically, if you entered without the intent to immigrate and then decided to adjust status, you will be fine. Surely your husband has SOME ties to Canada, even without a lease, etc.? Most people do not even get asked about intent, you just have to be prepared. This is what I have gathered from my extensive reading on this subject here on VJ and everywhere else (it is SO hard to find stuff specific to Canadians though).

I DID read, somewhere in my travels around the internet, that they assess intent initially based on how long after entry as a visitor you filed to adjust (or got married, which does not apply in your case). If you file under 30 days after entry, you are subject to intense scrutiny. If it is after 30 but before 60 days, you will be looked at carefully. If it is after 60 days, you are kind of assumed not to have had intent - unless, I guess, there is something really glaring that jumps out at them. I don't know if this is true, but I remember reading it and there were some pretty official links to government websites included in the explanation (I can't find it again now).

Just my two cents, but I think you would be absolutely fine adjusting, more fine than if your husband tried to overstay as a visitor. I think if he left and then tried to come back (and was honest about his prior stay) that he would not be allowed back in.

[bluegreen 0]

Also, I meant to add:

The fee ($1365 plus medical exam) IS a lot, but it is doesn't cost more to adjust from within the country - you just have to pay both fees at once (I-130 and I485). Once I started adding up how much it would cost me to fly back and forth visiting, and keep all my bills in Canada paid and everything while on an extended holiday, I realized that it was pretty much a wash. Just my experience.

[TrueNorth 0]

I went to the airport and talked to 4 officers there and no one said we could not adjust. We talked about the I94 and one officer even printed out some forms for me! They were really nice, actually. We also went to 3 lawyers and so far EVERYONE has told us to adjust, so that's what we're going to do. I have called every authority I can think of, I have gone to at least 5 lawyers, I have consulted the Dept of homeland security, called their Hotline (where they also said to adjust) and talked to border control and immigration officers here and so far the consensus is adjust. If my husband gets to see his child born then that is really what I want most because that's crucial for us; we will deal with everything as honestly as possible and abide by all laws and rules and just have to pray!

[Chica Yeyé 41]

Goodie. Begin gathering your AOS documents asap, and gather the money for the fees. Also, since you mention you make little money (and while he adjusts and received his EAD he cannot legally work); you should think of lining up a joint sponsor. Good luck in your process!

[KimandRuss 0]

What a nightmare. It's such a shame you can not get any real answers from the people who are suppose to have them!

You obviously want to do things the right way. I agree with what you've been told that it seems adjusting status is going to be what's best for everyone concerned. Get the money together somehow and adjust.

More importantly... best of luck with your baby!

[TrueNorth 0]

What a nightmare. It's such a shame you can not get any real answers from the people who are suppose to have them!

You obviously want to do things the right way. I agree with what you've been told that it seems adjusting status is going to be what's best for everyone concerned. Get the money together somehow and adjust.

More importantly... best of luck with your baby!

Thank you! We are gathering all the forms and info, getting hubby's medical stuff and immunization records etc. My mom has agreed to co-sponsor so I think we will be ok with that. It is a lot of work:( I was in the hospital for 2 days this week because of my blood pressure, too. I have to get this all sorted so we can soon have a HOPEFULLY nice happy quiet life together!

[Carlawarla 1]

Thanks for the update TrueNorth! Congrats on getting everything together now...AND a co-sponsor! Wonderful news!