AOS or K1?

[joelb 0]

This is my first post, so I apologize if I'm not as brief as I should be. I have a question regarding my options with the following scenario.

My wife is Canadian - we met in 2008 when she was in the US on a work visa. We got married in 11/ 2008 in the US and then I received a job in Canada (on a temporary work visa) that lasted until 11/2009. During this period, we had a son, who was born in Canada. When my work visa and job ended in Nov 2009, we came back to visit in the US (Arizona) while I looked for work in both countries. My wife returned to Canada in June for some misc. appointments while I stayed in the US. She is on the typical Canadian tourist visa (6 months max per year). It was at that point that I applied for an I-130 (June, 2010). It was just sent back to me rejected because I hadn't filled an address out properly in one of the sections. During these last few weeks of waiting, I began reading the threads on this site and realized that I may be able to apply for an AOS instead of the K-1.

My question is whether it's better for me to have my wife re-enter the US to visit me and when my work situation becomes resolved, apply for the I-485? Or am I stuck because I've already started down the I-130 path?

Again, sorry for the lengthy background - and I appreciate any advise.

[canadian_wife 1,791]

First of all, you cannot petition for a K-1. The K-1 is for unmarried people. When you married your wife, you excluded yourself from the K-1

Where is your wife now?

Just so you know, entering the US as a tourist with the intentions of immigrating is immigration fraud and can result in a lifetime ban. If she is in Canada, file the forms for the Cr-1 visa

Oh, and Canadians are not on any type of visa.

Good luck

[JimVaPhuong 4,863]

This is my first post, so I apologize if I'm not as brief as I should be. I have a question regarding my options with the following scenario.

My wife is Canadian - we met in 2008 when she was in the US on a work visa. We got married in 11/ 2008 in the US and then I received a job in Canada (on a temporary work visa) that lasted until 11/2009. During this period, we had a son, who was born in Canada. When my work visa and job ended in Nov 2009, we came back to visit in the US (Arizona) while I looked for work in both countries. My wife returned to Canada in June for some misc. appointments while I stayed in the US. She is on the typical Canadian tourist visa (6 months max per year). It was at that point that I applied for an I-130 (June, 2010). It was just sent back to me rejected because I hadn't filled an address out properly in one of the sections. During these last few weeks of waiting, I began reading the threads on this site and realized that I may be able to apply for an AOS instead of the K-1.

My question is whether it's better for me to have my wife re-enter the US to visit me and when my work situation becomes resolved, apply for the I-485? Or am I stuck because I've already started down the I-130 path?

Again, sorry for the lengthy background - and I appreciate any advise.

When you sent the I-130 you were applying for a CR1 - not a K1. As canadian_wife, explained, the K1 is for people who are engaged - not married. The K1 is also a different petition form - the I-129F. Further, a K1 is a non-immigrant visa (the alien becomes an immigrant after they enter the US, marry the petitioner, and apply for AOS). The CR1 is an immigrant visa. There is no separate AOS process.

It is a violation of US immigration law to use a non-immigrant entry pass with the "preconceived intent" to immigrate. The only exception is if the non-immigrant entry pass allows for immigrant intent, such as an H1B or K visa. When adjudicating an AOS petition, USCIS considers preconceived intent to be a serious adverse factor. They won't usually deny the AOS solely for the preconceived intent unless they determine there was also misrepresentation; i.e., if you lie about your intentions to an immigration officer. In that case, the result would be that the AOS is denied, and the alien could receive a lifetime ban for the misrepresentation. There is no risk of this happening if the alien enters with the proper type of immigrant visa, or a non-immigrant visa that allows for immigrant intent.

The ability for an immediate relative of a US citizen to adjust status while in the US on a non-immigrant entry pass is intended for extraordinary circumstances. It is not simply an alternative to using the visa process to immigrate.

[joelb 0]

When you sent the I-130 you were applying for a CR1 - not a K1. As canadian_wife, explained, the K1 is for people who are engaged - not married. The K1 is also a different petition form - the I-129F. Further, a K1 is a non-immigrant visa (the alien becomes an immigrant after they enter the US, marry the petitioner, and apply for AOS). The CR1 is an immigrant visa. There is no separate AOS process.

It is a violation of US immigration law to use a non-immigrant entry pass with the "preconceived intent" to immigrate. The only exception is if the non-immigrant entry pass allows for immigrant intent, such as an H1B or K visa. When adjudicating an AOS petition, USCIS considers preconceived intent to be a serious adverse factor. They won't usually deny the AOS solely for the preconceived intent unless they determine there was also misrepresentation; i.e., if you lie about your intentions to an immigration officer. In that case, the result would be that the AOS is denied, and the alien could receive a lifetime ban for the misrepresentation. There is no risk of this happening if the alien enters with the proper type of immigrant visa, or a non-immigrant visa that allows for immigrant intent.

The ability for an immediate relative of a US citizen to adjust status while in the US on a non-immigrant entry pass is intended for extraordinary circumstances. It is not simply an alternative to using the visa process to immigrate.

[joelb 0]

Thanks for the quick responses. I of course meant that I had applied for the CR-1, not the K-1. But that point is really moot because my application was rejected for improperly filling out the application.

As for my question however, I was asking if my rejection notice that I received locked me into the CR-1 path, or if my circumstances changed in the future, could I re-apply under a different application, such as the I-485. I had obviously not done nearly enough research before applying and am worried that my rejected application will have unintended consequences.

At this point, my wife is in Canada and can come back into the US as a tourist - or I can visit her in Canada as a tourist. There is a limitation to the length of time a Canadian or USC can visit each others country (6 months per year).

I also understand the consequences of misrepresentation at the border. However, since we have not decided what direction we will pursue (her becoming a permanent resident in the US or me becoming a permanent resident of Canada), and I am still entertaining job offers from both Canada and the US, I don't think misrepresentation applies to my situation.

[JimVaPhuong 4,863]

It will have no adverse effect. You can withdraw a petition at any time and file a different petition later. If your petition was denied for improper filing then you have no pending petition to withdraw. You can send a new petition of the same type or a different type anytime.