Huge Dilema/Concerns

[BPR 0]

Hello everyone,

I have read many posts on here, researched many of them before applying for the K-1, but this is first time I'm addressing the forum.

My wife and I have an issue. We had initially applied for the K-1 visa in December. Everything had gone well, however the timeline was underestimated. We had our wedding planned for May 7th, the venue paid for so there was no way of changing the date or location.

Here's the problem, I received the K-1 approval packet in Canada 2 weeks before the wedding and of course, there were more work to be done. Medical, interview etc.. Now, knowing there was no way this would get done before our wedding, we decided to ditch the K-1 and got married anyways.

The question I'm wondering is since the k-1 is still probably pending, what should we do? could we just go ahead with the AOS and file the I-485 and I-130?

For any other clarification, I'm Canadian, she's a USC. We met while I attended college in the U.S. and we dated 31/2 before getting married.

Any help would be greatly appreciated.

Feel free to ask any other questions.

Thanks again.

[trailmix 77]

Hi and welcome,

The K1 is history, I suppose you have to let them know you are cancelling that.

As for adjusting status - depends, was this your intent when you crossed the border to get married? So you have a K1 pending, you know you are going to cancel it as you are going to get married, you show up at the U.S border - what is your intent? Were you planning on returning to Canada? Do you have any ties there, job, apartment, anything?

Edited May 22, 2010 by trailmix

[LIFE'SJOURNEY 970]

Hello everyone,

I have read many posts on here, researched many of them before applying for the K-1, but this is first time I'm addressing the forum.

My wife and I have an issue. We had initially applied for the K-1 visa in December. Everything had gone well, however the timeline was underestimated.

We had our wedding planned for May 7th, the venue paid for so there was no way of changing the date or location.

Here's the problem, I received the K-1 approval packet in Canada 2 weeks before the wedding and of course, there were more work to be done. Medical, interview etc.. Now, knowing there was no way this would get done before our wedding, we decided to ditch the K-1 and got married anyways.

The question I'm wondering is since the k-1 is still probably pending, what should we do? could we just go ahead with the AOS and file the I-485 and I-130?

For any other clarification, I'm Canadian, she's a USC. We met while I attended college in the U.S. and we dated 31/2 before getting married.

Any help would be greatly appreciated.

Feel free to ask any other questions.

Thanks again.

TrailMix, this is a s big as an intent there could be. Did you miss this in reading? Doing an AOS would be Risky business.

[VanessaTony 3,567]

Well obviously you know the K1 is no longer an option. I honestly would have advised you to go ahead with the wedding SANS legality and then married in a court house once you had the K1 approved BUT that's obviously no longer an option so CONGRATS on your wedding/marriage.

The K1 petition will naturally die if she doesn't apply I assume but I honestly don't know enough about it. Hopefully someone else can help you there.

As for applying for AOS while in the US, it is very clear that the Canadian (you) entered the US with INTENT to marry and remain. However, they don't make you prove no intent (from what I read) but I still personally consider it risky. In all honesty you will simply need to prove a bonafide relationship and I doubt the issue of intent will be an "issue" at all.

You will need to follow this guide: http://www.visajourney.com/content/i130guide2 . It was a good thing you didn't bother wasting money on the medical because you'll need to do it now to file. For qn's on your process this is the thread you need: http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

Best of luck

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to Effects of Major Family Changes on Immigration Benefits as this seems a more appropriate location at the moment and at the very least it's not a "AOS from Family based visa" qn.**

Edited May 23, 2010 by Vanessa&Tony

[trailmix 77]

TrailMix, this is a s big as an intent there could be. Did you miss this in reading? Doing an AOS would be Risky business.

No, I didn't miss that at all.

Getting married does not mean intent to immigrate. Millions of people from other countries get married in the U.S. every year.

I asked him about his intent when he crossed the border, if he intended to immigrate when he crossed the border this time. Until he answers that - there is no way to advise him one way or the other.

[JimVaPhuong 4,863]

Ultimately, it doesn't much matter what the OP's intent was when they crossed the border. It matters what USCIS thinks the OP's intent was at the time. USCIS doesn't read minds, but they do look at evidence.

The OP has a K1 visa application awaiting interview. The OP entered the US and married her USC fiance. Even a superficial investigation (one phone call to the venue would be enough) would reveal that the plans for the marriage were made well in advance of her entry, so she clearly intended to marry when she entered. So far, so good - no laws have been broken, but the K1 application is now void because she's no longer eligible for it.

USCIS will automatically presume that a preconceived intent existed when the applicant applies for adjustment of status within 30 days of entry with many non-immigrant visas or entry passes. They will strongly suspect preconceived intent if the applicant applies between 30 and 60 days of entry. However, USCIS is not supposed to make these automatic presumptions in the case of an immediate relative of a US citizen. They are, instead, supposed to look for actual evidence of preconceived intent. If that evidence is found, and if it is the only adverse factor in the case, then USCIS is supposed to use their discretion and grant the AOS. There is plenty of case law in the Board of Immigration Appeals to back this up, but that case law wouldn't exist if USCIS hadn't used their discretion to deny AOS in exactly these sort of cases in the past. In other words, if USCIS hadn't denied the AOS, there would have been no reason to appeal, and no resulting record of the case.

That said, USCIS generally follows this rule. They will probably look for evidence of preconceived intent. In this case, it wouldn't be difficult to find. If the OP has had no previous problems with immigration authorities in the US, and there are no other adverse factors affecting the case, their AOS will probably be approved. However, any negative history with US immigration, combined with the preconceived intent, would be enough to deny the AOS. For example, if the OP had ever been subjected to secondary inspection because of suspicion of intent to immigrate, that might be enough to tilt the scales on the side of denial.

Remember that AOS is discretionary. You have to prove not only that you are eligible, but that there is not sufficient compelling reason to deny it.

[BPR 0]

Thank you all for you answers. We had initially planned on moving to Canada, however, we decided to live in the U.S. So, I gave my 2 weeks notice at work and just moved my some of my things here to the U.S. Since I'm Canadian and we can be here for up to 6 months, I haven't changed anything back home such as address, driver's license so I'm still technically visiting right now. Also, I've been on a student visa where I went to college in the U.S. for 5 years and graduated in May 2009 and never had any problems with immigration or with any law enforcement agencies.

[JimVaPhuong 4,863]

Thank you all for you answers. We had initially planned on moving to Canada, however, we decided to live in the U.S. So, I gave my 2 weeks notice at work and just moved my some of my things here to the U.S. Since I'm Canadian and we can be here for up to 6 months, I haven't changed anything back home such as address, driver's license so I'm still technically visiting right now. Also, I've been on a student visa where I went to college in the U.S. for 5 years and graduated in May 2009 and never had any problems with immigration or with any law enforcement agencies.

Honestly, I think there is ample evidence that you intended to immigrate when you crossed the border. The big question is whether USCIS will discover any of this evidence, and whether they'll use it as a reason to deny your AOS. As I said, they aren't supposed to presume preconceived intent with the spouse of a US citizen, but they will certainly investigate it. They won't have to dig very deep to find sufficient evidence - your wedding was planned well in advance, and you quit your job before coming to the US. They can get this information with a few phone calls.

Did the CBP ask you any questions when you entered the US? Did they ask you why you were visiting the US? If so, what did you say? This could become extremely relevant if they conclude that you had preconceived intent to immigrate. If you told the CBP that you were just coming to visit, and they determine you knew you were coming to stay, then they've got you - material misrepresentation, and a possible lifetime ban from the US.

You have a couple of options. If you choose to try to adjust status, there's a pretty good chance you'll be successful. There's also a huge risk if you are denied - a potential lifetime ban. Or, you could withdraw your K1 visa application, your husband could submit a CR1 petition, and you could enjoy the rest of your allowed stay with your new husband before returning to Canada to wait for your CR1 interview.

The choice is yours.

[trailmix 77]

Ultimately, it doesn't much matter what the OP's intent was when they crossed the border. It matters what USCIS thinks the OP's intent was at the time. USCIS doesn't read minds, but they do look at evidence.

I agree with everything you have said, except the above. It IS important what his intent was. It is not illegal to find yourself magically in the U.S. - say - hey let's get married and adjust status.

It IS against the law to enter the U.S. and plan to stay without a visa.

If you cross the border without intent to reside in the U.S. - one would imagine that you would have all kinds of things to back this up. A job, or you are going to school, a place to live, possessions, your gym membership, money in the bank, utility bills etc etc.

BPR, from what I have read, your intent is not normally questioned, however, if it was, your proof looks pretty flimsy (at best).

[john_and_marlene 162]

Regarless of your intent on entry, it won't be used as a reason to deny an adjustment of status. The liklihood that they will even ask about it is slim. They certainly aren't going to expend any effort investigating it as the BIA has already set precedent that it cannot be used to deny an adjustment for the immediate family member of a USC. Don't be fooled by the naysayers that wave the banner of doom that you can be denied or investigated or grilled about your intent at an interview. In the once case since the precedent decision that you may find cited on VJ that it was used to deny an adjustment, the ruling was determined to be an err and was overturned--and even that one case was several years ago.

BPR, from what I have read, your intent is not normally questioned, however, if it was, your proof looks pretty flimsy (at best).

It doesn't matter. They need offer no proof of intent. The reason it is not normally questioned is that it cannot be used as the reason for denial. Adverse factors other than prior intent, working without authorization or overstays must be found as those 3 factors cannot be the reason for denial of an adjustment by the immediate family member of a USC. If they are used without other adverse factors, it would be a err on the part of the USCIS.

Edited May 24, 2010 by john_and_marlene

[BPR 0]

Will there be an guaranteed interview for the AOS or it's case by case? If I were to choose the CR1, how long would it take on average to be able to come back here in the U.S.? This does not seem very likely as we have been apart for 1 year since I graduated and spend a lot of time apart. However, It is still something we may need to look at.

[trailmix 77]

Will there be an guaranteed interview for the AOS or it's case by case? If I were to choose the CR1, how long would it take on average to be able to come back here in the U.S.? This does not seem very likely as we have been apart for 1 year since I graduated and spend a lot of time apart. However, It is still something we may need to look at.

It is case by case.

It takes, on average, between 9-12 months from I-130 submittal to interview in Montreal, for a CR1. You can visit while it is processing. You can send in the paperwork right now, you don't have to be in Canada to get the ball rolling. If you look ahead a bit and ensure you have all the documents you will need for NVC, you can make it that much faster.

[trailmix 77]

Regarless of your intent on entry, it won't be used as a reason to deny an adjustment of status. The liklihood that they will even ask about it is slim. They certainly aren't going to expend any effort investigating it as the BIA has already set precedent that it cannot be used to deny an adjustment for the immediate family member of a USC. Don't be fooled by the naysayers that wave the banner of doom that you can be denied or investigated or grilled about your intent at an interview. In the once case since the precedent decision that you may find cited on VJ that it was used to deny an adjustment, the ruling was determined to be an err and was overturned--and even that one case was several years ago.

It doesn't matter. They need offer no proof of intent. The reason it is not normally questioned is that it cannot be used as the reason for denial. Adverse factors other than prior intent, working without authorization or overstays must be found as those 3 factors cannot be the reason for denial of an adjustment by the immediate family member of a USC. If they are used without other adverse factors, it would be a err on the part of the USCIS.

Ok, this is all good, but it does not change the fact that if you enter the U.S. as a visitor with intent to adjust status once you are in - it is against the law. That is what I was saying and i'm standing by it.

[JimVaPhuong 4,863]

I agree with everything you have said, except the above. It IS important what his intent was. It is not illegal to find yourself magically in the U.S. - say - hey let's get married and adjust status.

It IS against the law to enter the U.S. and plan to stay without a visa.

If you cross the border without intent to reside in the U.S. - one would imagine that you would have all kinds of things to back this up. A job, or you are going to school, a place to live, possessions, your gym membership, money in the bank, utility bills etc etc.

BPR, from what I have read, your intent is not normally questioned, however, if it was, your proof looks pretty flimsy (at best).

I think you missed my point. There are plenty of people who entered with a non-immigrant pass with the intention of immigrating, and they successfully adjusted status. There are also others that were denied when they did not intend to immigrate at the time they entered. Your actual intent; i.e., what's going on in your mind, at the time you enter is not ultimately the deciding factor. What determines your fate is what USCIS believes was your intent when you entered. If the evidence is against you, then it won't much matter what your actual intent was.

Regarless of your intent on entry, it won't be used as a reason to deny an adjustment of status. The liklihood that they will even ask about it is slim. They certainly aren't going to expend any effort investigating it as the BIA has already set precedent that it cannot be used to deny an adjustment for the immediate family member of a USC. Don't be fooled by the naysayers that wave the banner of doom that you can be denied or investigated or grilled about your intent at an interview. In the once case since the precedent decision that you may find cited on VJ that it was used to deny an adjustment, the ruling was determined to be an err and was overturned--and even that one case was several years ago.

It doesn't matter. They need offer no proof of intent. The reason it is not normally questioned is that it cannot be used as the reason for denial. Adverse factors other than prior intent, working without authorization or overstays must be found as those 3 factors cannot be the reason for denial of an adjustment by the immediate family member of a USC. If they are used without other adverse factors, it would be a err on the part of the USCIS.

This is just plain wrong, and that is absolutely not the conclusions the BIA came to in the precedent cases. You are basing your opinion solely on the Battista case. There were mitigating factors in that case, including the fact that the respondent had an approved immigrant visa petition filed by his father that he could have pursued instead of the non-immigrant B2 visa he ultimately obtained. His counsel pointed this out in arguing against the preconceived intent.

In each case the BIA reiterated that adjustment of status is discretionary. The adjudicator is supposed to weigh the positive and negative factors to determine whether adjustment should be granted. They determined that one negative factor - preconceived intent - does not outweigh multiple positive factors. That does NOT mean that preconceived intent is not a negative factor - the BIA emphatically stated in each case that it IS a negative factor, and that it must be considered. If there aren't enough positive factors to outweigh it, then it CAN be used to deny.

It's also worthwhile to note that none of these cases would be in the BIA files if an immigration judge had not already DENIED the adjustment of status. Are you seriously going to recommend that someone risk this because you believe they'll ultimately win when they appeal to the BIA?

This is beginning to get silly. I defy you to point out any BIA case where the board explicitly stated that preconceived intent cannot EVER be used to deny an adjustment of status to the spouse of a US citizen. There is simply no basis for your blanket statement.

[trailmix 77]

I think you missed my point. There are plenty of people who entered with a non-immigrant pass with the intention of immigrating, and they successfully adjusted status. There are also others that were denied when they did not intend to immigrate at the time they entered. Your actual intent; i.e., what's going on in your mind, at the time you enter is not ultimately the deciding factor. What determines your fate is what USCIS believes was your intent when you entered. If the evidence is against you, then it won't much matter what your actual intent was.

I agree with you. I think you missed my point. My point is, while it may not matter what your actual intent was, when all the immigrating (or not) is done, that does not change the fact that is against the law to enter without the correct visa with immigrant intent.

Sometimes on this forum this tends to get glossed over and I don't think should - just my opinion.