Marrying in the US on a whim do I need to return to Canada.

[sweetpeacanuck 0]

Hi,

I was on a student visa for 3 years. I moved in with my boyfriend during that time. in August 09 my student visa expired so i moved back to Canada. We went back end forth for a few months. Last weekend I went down for a visit and we decided to get married on a whim. I am not sure what the best thing is to do? Is it best to return to Canada or should I remain in the us and file for a k3? which way would be quicker.

any help would be great

thank you

[Chica Yeyé 41]

You can stay and file for AOS from here - you will be asked to prove you had no intent to immigrate at the time; but it is possible. If you decide to go this route, do not leave the country until you receive your Advanced Parole; or you will not be allowed back in (chances are). Otherwise, you can return to Canada and apply for a CR-1 visa (don't waste time on a K-3).

[Usui Takumi 1,562]

I'm pretty sure its the other way around in that intent to immigrate is fraud and that the burden of proof regarding visa fraud always falls on USCIS not the applicant? Anyway everything else is golden in what Len said.

[trailmix 77]

Hi,

If you decide to file for a K3 - returning to Canada or staying in the U.S. for 6 months visiting has no bearing on it - it will take the same amount of time regardless of which country you are sitting in. Chances are it may take more than 6 months to process, so you may have to return to Canada before that processing is over. Either way, with a K3, you must return to Canada to interview when the time comes.

You may instead chose to file for an adjustment of status, which means everything will be processed in the U.S. and you must stay there until you with get advance parole (a document you apply for when you file) or your green card.

You will want to have a look at the adjustment of status guide here:

http://www.visajourney.com/forums/index.ph...page=i130guide2

Edited October 20, 2009 by trailmix

[pushbrk 12,113]

I'm pretty sure its the other way around in that intent to immigrate is fraud and that the burden of proof regarding visa fraud always falls on USCIS not the applicant? Anyway everything else is golden in what Len said.

This part get's tricky. The burden of proof is definitely on the applicant. Your explanation of how you came to decide to marry and stay should be plausible. It helps if you have evidence like resigning from your job by sending a certified letter from the USA or evidence of having left your belongings behind etc. All this only works if you stay in the USA until you have advance parole.

If you decide to take a visa path, you'll probably want to follow the CR1 guide as K3 is virtually obsolete for all but some unique cases.

[Usui Takumi 1,562]

Are you saying then that this is an exception to rule related to fraud? The only thing they "must" prove at AOS is their relationship. I've never heard of an RFE asking "please prove your intent when you last entered the country". Its much more clear cut for the gov. to prove that there was intent then the applicant trying to prove that there isn't if you get what i'm saying. Obviously if asked at the interview they must have a plausable explanation about entry but so far as proving anything its for USCIS to prove conclusively that there was immigration intent not the other way around.

I'm just mentioning this because I notice alot of people always say in these threads that you must prove your intent, where as it would be more accurate to say "you had better not have any evidence against you from which USCIS can build a case". IE a recorded lie at POE, or some sort of correspondence that hints you were moving ahead of time etc.

[pushbrk 12,113]

Are you saying then that this is an exception to rule related to fraud? The only thing they "must" prove at AOS is their relationship. I've never heard of an RFE asking "please prove your intent when you last entered the country". Its much more clear cut for the gov. to prove that there was intent then the applicant trying to prove that there isn't if you get what i'm saying. Obviously if asked at the interview they must have a plausable explanation about entry but so far as proving anything its for USCIS to prove conclusively that there was immigration intent not the other way around.

I'm just mentioning this because I notice alot of people always say in these threads that you must prove your intent, where as it would be more accurate to say "you had better not have any evidence against you from which USCIS can build a case". IE a recorded lie at POE, or some sort of correspondence that hints you were moving ahead of time etc.

You are mistaken. No, there wouldn't be an RFE asking for evidence of intent. At the AOS interview, the burden is on the couple to convince the adjudicator of any intent issues that come up. If their story is not plausible or not believed, the AOS can be denied. Usually, they don't enter a finding of fraud, they simply deny the AOS and require the beneficiary apply for a visa. CATCH 22 is that the applicant has now overstayed their visitor privilege.

When seeking a US immigration benefit, the burden is always on the applicant to show evidence they qualify for it and are entitled to it.

Edited October 20, 2009 by pushbrk

[Usui Takumi 1,562]

Are you saying then that this is an exception to rule related to fraud? The only thing they "must" prove at AOS is their relationship. I've never heard of an RFE asking "please prove your intent when you last entered the country". Its much more clear cut for the gov. to prove that there was intent then the applicant trying to prove that there isn't if you get what i'm saying. Obviously if asked at the interview they must have a plausable explanation about entry but so far as proving anything its for USCIS to prove conclusively that there was immigration intent not the other way around.

I'm just mentioning this because I notice alot of people always say in these threads that you must prove your intent, where as it would be more accurate to say "you had better not have any evidence against you from which USCIS can build a case". IE a recorded lie at POE, or some sort of correspondence that hints you were moving ahead of time etc.

You are mistaken. No, there wouldn't be an RFE asking for evidence of intent. At the AOS interview, the burden is on the couple to convince the adjudicator of any intent issues that come up. If their story is not plausible or not believed, the AOS can be denied. Usually, they don't enter a finding of fraud, they simply deny the AOS and require the beneficiary apply for a visa. CATCH 22 is that the applicant has now overstayed their visitor privilege.

When seeking a US immigration benefit, the burden is always on the applicant to show evidence they qualify for it and are entitled to it.

Exactly the burden is on the applicant to show evidence that they qualify for and are entitled to it. However issues of fraud must be proven by USCIS. Traveling on a tourist visa with the intent to immigrate is fraud.

[Chica Yeyé 41]

I'm pretty sure its the other way around in that intent to immigrate is fraud and that the burden of proof regarding visa fraud always falls on USCIS not the applicant? Anyway everything else is golden in what Len said.

True. More along the lines of questions coming up at the interview stage. Cut me some slack, it was late and I was losing my Bejeweled Blitz lead on Facebook

[Usui Takumi 1,562]

Sorryz Len, Please forgive!

[Chica Yeyé 41]

Sorryz Len, Please forgive!

No. You reminded me of my Blitz defeat. You iz teh evil

[pushbrk 12,113]

Are you saying then that this is an exception to rule related to fraud? The only thing they "must" prove at AOS is their relationship. I've never heard of an RFE asking "please prove your intent when you last entered the country". Its much more clear cut for the gov. to prove that there was intent then the applicant trying to prove that there isn't if you get what i'm saying. Obviously if asked at the interview they must have a plausable explanation about entry but so far as proving anything its for USCIS to prove conclusively that there was immigration intent not the other way around.

I'm just mentioning this because I notice alot of people always say in these threads that you must prove your intent, where as it would be more accurate to say "you had better not have any evidence against you from which USCIS can build a case". IE a recorded lie at POE, or some sort of correspondence that hints you were moving ahead of time etc.

You are mistaken. No, there wouldn't be an RFE asking for evidence of intent. At the AOS interview, the burden is on the couple to convince the adjudicator of any intent issues that come up. If their story is not plausible or not believed, the AOS can be denied. Usually, they don't enter a finding of fraud, they simply deny the AOS and require the beneficiary apply for a visa. CATCH 22 is that the applicant has now overstayed their visitor privilege.

When seeking a US immigration benefit, the burden is always on the applicant to show evidence they qualify for it and are entitled to it.

Exactly the burden is on the applicant to show evidence that they qualify for and are entitled to it. However issues of fraud must be proven by USCIS. Traveling on a tourist visa with the intent to immigrate is fraud.

USCIS can impose a ban from entering the USCIS based on their opinion the applicant committed visa fraud, without a criminal charge or action from any judge or court. Overturning the adjudicator's finding requires the applicant to provide convincing evidence to the contrary. If you want to iinterpret that as the burden being on USCIS, be my guest.

[Usui Takumi 1,562]

That doesn't make any sense....how can USCIS ban someone from the USCIS? The USCIS isn't even a location.

[pushbrk 12,113]

That doesn't make any sense....how can USCIS ban someone from the USCIS? The USCIS isn't even a location.

You're kidding, right? Name me a "location" that can ban somebody from the USA. Of course this US Government agency can ban an alien from entering the USA for any period it deems appropriate up to a lifetime ban.

[Usui Takumi 1,562]

Oh thats what you meant!......you wrote "USCIS can impose a ban from entering the USCIS" I was like you can't ban someone from USCIS its an organization not a place.

Anyway, yes technically an adjudicator can deny the AOS for any reason, but he does have guidelines he must follow to back a case up later on. But if its denied on the basis of fraud and he has no clear evidence of fraud then you know its going to get taken care of in appeal.

I've never seen a post here in the past 2 years or british expat in the last 3 where an IO demanded proof of intent. In fact I've only seen two incidents (both on british expat) where fraud was found and it was because the people had clear evidence against them.

I do have question though. Does adjusting status via the VWP or whatever Canadians truly preclude the right to an appeal?

Edited October 20, 2009 by Sousuke