Marrying on Visitor Visa (Ontario/Quebec Canada)

[evergreen 0]

My husband (then my boyfriend) came to the U.S. from Canada on a visitor visa.

Even though he had a valid Canadian passport, and even though Canadian citizens are not supposed to need a visa with a valid passport, he was issued a "visitor visa" at the border, requiring him to return to Canada in three weeks. This was because the border agents did not feel that he had sufficient "ties to Canada". He had with him his lease, utility receipts, and proof of income in Canada, but apparently not enough evidence of his "ties" for these particular border agents. Once they found out that we were "boyfriend/girlfriend", it seems they made up their mind, regardless of evidence of his ties to his home country.

During that three weeks (the period approved by the border agents), we called USCIS, and were told that we could apply online for an extension of the visitor visa. We did apply for an extension of the visitor visa. He stayed in the U.S. awaiting approval of the extension, but returned to Canada before the extension was approved or denied. Overall, he stayed in the U.S. for six months. Longer than the original three week visitor visa, but the usual legal limit for a Canadian visitor to the U.S. We applied for the extension before the initial visitor visa expired, but he left the U.S. before a decision was made on the extension application (a decision on the extension was not made until eight months later, after he had already returned to the U.S. and after we'd already applied for CR1 and K3 visas).

While he was in the U.S., a few months after he arrived, we got married. He did not come to the U.S. with any intent to marry me while on a visitor visa, but we later decided (2 1/2 months after he arrived) to get married.

Also, as I stated, while still waiting for the extension of his visitor visa, despite our marriage, he returned to Canada on his own at the six month mark.

We filed an I-130 (CR1) petition, and an I-129F (K3) petition.

We expect to have an interview at the end of September or early October for our K3.

Will the circumstances described above cause any problems at the interview (at the consulate) or POE (border)?

Is it considered "overstaying" when he applied for an extension of the visa through USCIS BEFORE it expired? So that the entire time he was here in the U.S. AFTER it expired, the status of the visa was then pending due to the extension application?

I could swear I read somewhere (either on the USCIS site or in the actual wording of U.S. immigration law) that if you stay while awaiting an extension, it does not count as an overstay if you later apply for an I130/I129 visa.

When I contacted the USCIS after our marriage, an operator/representative told us that he must return to Canada and we must file an I130. This operator told us that this was his only option. She did not metion the AOS option or the K3.

Unfortunately, this was before I was on the visajourney forum, and we believed this operator was correct - she stated that there were NO other options. Had we checked this forum, or called an attorney, we would have discovered that he could stay in the U.S. if we filed an Adjustment of Status application! However, by the time we found this out, he had already returned to Canada.

Obviously we weren't intending to use the visitor visa to avoid the usual processes, because we hadn't intended on getting married, didn't know anything about the immigration process at the time we married nor afterwards (or else he would have remained in the U.S. and applied for AOS) and did not benefit in any way from marrying in the U.S. while he was on the visitor visa.

This makes sense to me, but I'm worried that the over zealous border patrol agents may latch onto this and use it as a reason to deny his visa, even though so far we have made every attempt to do everything appropriately and legally.

Edited September 9, 2006 by evergreen

[evergreen 0]

Immigration and Nationality Act, 8 U.S.C. 1001, et. seq, as amended:

(B) ALIENS UNLAWFULLY PRESENT.-

(i) In general. Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(B)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) Exceptions. -

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

(II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.

(III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

(IV) Battered women and children.-Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if "violation of the terms of the alien's nonimmigrant visa" were substituted for "unlawful entry into the United States" in subclause (III) of that paragraph.

(iv) Tolling for good cause. -In the case of an alien who-

(I) has been lawfully admitted or paroled into the United States,

(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and

(III) has not been employed without authorization in the United States before or during the pendency of such application,the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

*I don't know where the happy face is getting in this. I can't seem to remove it!

Edited September 9, 2006 by evergreen

[evergreen 0]

Also, on the I-212 Waiver Application, it states that you are able to reapply for admission WITHOUT filing the I-212 if you voluntarily departed from the U.S. without expense to the U.S. Government and without an order of removal or deportation having been entered.

Now I'm totally confused!

[evergreen 0]

Got this from www.visacentral.net:

I applied for an extension or change of my temporary visa. While the application

has been pending, my original visa has expired. Am I 'illegal'?

No, you are still in a period of authorized stay called 'tolling'. Your stay is

authorized until BCIS makes a decision on your case. If you receive a notice that

it has been denied, you begin accumulating 'out of status' time at that point and

must leave the country immediately.

[kitkat1 5]

Evergreen, you've done a bunch of good research and it appears you'll be fine. But just to be sure, you may want to schedule a 1/2 hour phone consultation or email consult with Laurel Scott - she's the attorney from www.visacentral.net and is an expert on waivers and overstays. It's not expensive and will be money well spent to clarify for you once and for all. Good Luck.

[QC2CO 1]

my story is similar. I stayed in the US for 5 months and 3 weeks, but we didnt get married while I was there (but we are married now) and I didnt get a 3 week visa. I was denied 3 times before I left for 6 months. Then I was harassed by the border agents, the next time i tried to cross because of my 6 month stay the previous time, but they had let me go through, and I was able to cross a total of 5 times afterwards. I think that the fact that I was able to cross afterwards, with ties to Canada, will save me from any problems with the K3 visa.

Has your husband tried crossing afterwards? ...with ties to Canada of course.

[Yodrak 7]

evergreen,

Sounds to me as though the CBP officers that granted your husband entry were correct - his ties to the USA (you) were stronger than his ties to Canada. He stayed as long as he possibly could have stayed under normal circumstances, although he was only granted a much shorter stay and immediately tried to get it extended. Why did he return to Canada with the request for an extended stay still pending? Was the reason one of the ties that you listed, or was the reason he went back something else?

Further, you write that had you known he could apply to adjust status after you married he would have done so. Again, so much for the ties.

As to your present question, you mention that had you consulted with an immigration attorney back at the time you would have learned correctly what your options were. That is as true today as it was then, so have that consultation.

Yodrak

My husband (then my boyfriend) came to the U.S. from Canada on a visitor visa.

Even though he had a valid Canadian passport, and even though Canadian citizens are not supposed to need a visa with a valid passport, he was issued a "visitor visa" at the border, requiring him to return to Canada in three weeks. This was because the border agents did not feel that he had sufficient "ties to Canada". He had with him his lease, utility receipts, and proof of income in Canada, but apparently not enough evidence of his "ties" for these particular border agents. Once they found out that we were "boyfriend/girlfriend", it seems they made up their mind, regardless of evidence of his ties to his home country.

During that three weeks (the period approved by the border agents), we called USCIS, and were told that we could apply online for an extension of the visitor visa. We did apply for an extension of the visitor visa. He stayed in the U.S. awaiting approval of the extension, but returned to Canada before the extension was approved or denied. Overall, he stayed in the U.S. for six months. Longer than the original three week visitor visa, but the usual legal limit for a Canadian visitor to the U.S. We applied for the extension before the initial visitor visa expired, but he left the U.S. before a decision was made on the extension application (a decision on the extension was not made until eight months later, after he had already returned to the U.S. and after we'd already applied for CR1 and K3 visas).

While he was in the U.S., a few months after he arrived, we got married. He did not come to the U.S. with any intent to marry me while on a visitor visa, but we later decided (2 1/2 months after he arrived) to get married.

Also, as I stated, while still waiting for the extension of his visitor visa, despite our marriage, he returned to Canada on his own at the six month mark.

We filed an I-130 (CR1) petition, and an I-129F (K3) petition.

We expect to have an interview at the end of September or early October for our K3.

Will the circumstances described above cause any problems at the interview (at the consulate) or POE (border)?

Is it considered "overstaying" when he applied for an extension of the visa through USCIS BEFORE it expired? So that the entire time he was here in the U.S. AFTER it expired, the status of the visa was then pending due to the extension application?

I could swear I read somewhere (either on the USCIS site or in the actual wording of U.S. immigration law) that if you stay while awaiting an extension, it does not count as an overstay if you later apply for an I130/I129 visa.

When I contacted the USCIS after our marriage, an operator/representative told us that he must return to Canada and we must file an I130. This operator told us that this was his only option. She did not metion the AOS option or the K3.

Unfortunately, this was before I was on the visajourney forum, and we believed this operator was correct - she stated that there were NO other options. Had we checked this forum, or called an attorney, we would have discovered that he could stay in the U.S. if we filed an Adjustment of Status application! However, by the time we found this out, he had already returned to Canada.

Obviously we weren't intending to use the visitor visa to avoid the usual processes, because we hadn't intended on getting married, didn't know anything about the immigration process at the time we married nor afterwards (or else he would have remained in the U.S. and applied for AOS) and did not benefit in any way from marrying in the U.S. while he was on the visitor visa.

This makes sense to me, but I'm worried that the over zealous border patrol agents may latch onto this and use it as a reason to deny his visa, even though so far we have made every attempt to do everything appropriately and legally.

[evergreen 0]

Yes, my boyfriend (later husband) did stay six months. When we got to the border (US/Canada) and they asked how long he intended to stay, he told them six months (the usual legal limit for a Canadian visitor with a valid passport, I believe).

However, when the border agents said he could only stay three weeks, we only planned on him staying three weeks.

We really didn't understand why he wasn't allowed the six months, so we contacted USCIS, who advised us to apply for an extension. We had no idea an extension was possible - but when we found out that it was - we applied for it. Who on this board wouldn't, if they could?

When it came to the point where he had been here six months (the time he'd originally planned to stay), we felt that he should return to Canada. That was his plan - he had an apartment and family and income in Canada that he had to deal with. We wanted to abide by his intentions and the law - and so, regardless that the decision on the extension had not yet been made, he returned of his own volition.

Yes, had we known that AOS was an option, we would have taken that option. Again, who on this board would not have taken the option to keep their spouse with them? I don't believe that it's criminal to want to be with your spouse, or to use any legal means available to do so - nor do I believe that others on this board wouldn't use whatever legal means were available to remain with their spouses.

Not knowing that AOS was an option, we opted for him to return to Canada - again, because we understood that Canadian visitors were allowed six months - and his six months were up.

We never intended (and, to the best of my knowledge) never did anything illegal. We filed the I-130 and I-129 like everyone else, and waited our turn to be together again.

I will consult with an attorney - and will hopefully be updating the board with news that he was not considered an overstay and that we've obtained a CR1 or K3 visa and that he's back in the U.S. with me again!

Edited September 13, 2006 by evergreen

[evergreen 0]

My edit didn't work for some reason -

Yes, my boyfriend (later husband) did stay in the U.S. for six months. In fact, when we got to the border (US/Canada) and they asked how long he intended to stay, he told them six months (the usual legal limit for a Canadian visitor with a valid passport, we believed).

However, when the border agents said he could only stay three weeks, we only planned on him staying three weeks.

We really didn't understand why he wasn't allowed the six months, so we contacted USCIS to find out what we needed to do on his next visit so that we could spend more than three weeks together - and the USCIS advised us to apply for an extension. We had no idea an extension was possible - but when we found out that it was - we applied for it. Who on this board wouldn't, if they could?

When it came to the point where he had been here six months (the time he'd originally planned to stay), we felt that he should return to Canada. That was his plan - he had an apartment and family (parents/siblings)and income in Canada that he had to deal with. We wanted to abide by his intentions and the law - and so, regardless that the decision on the extension had not yet been made, he returned of his own volition.

Later, when I contacted an attorney, the attorney told us that he should not have left the US, but applied for AOS instead.

Yes, had we known that AOS was an option, we would have taken that option. Again, who on this board would not have taken the option to keep their spouse with them? I don't believe that it's criminal to want to be with your spouse, or to use any legal means available to do so - nor do I believe that others on this board wouldn't use whatever legal means were available to remain with their spouses.

Not knowing that AOS was an option, we opted for him to return to Canada - again, because we understood that Canadian visitors were allowed six months - and his six months were up.

We never intended (and, to the best of my knowledge) never did anything illegal. We filed the I-130 and I-129 like everyone else, and waited our turn to be together again.

We NEVER planned to get married while he was here as a visitor (we'd known eachother two years, and I had visited him in Canada) - but we did decide to marry AFTER he was here. It was a spur of the moment decision - with no untoward intent - as we had no idea when we married that by marrying he might be able to stay in the U.S. - we married with the knowledge and expectation that, regardless of whether we were married or not, he would have to return to the Canada when his extension expired.

At this point, we knew little or nothing about the immigration process (as most people).

I will consult with an attorney again now - as to whether his stay while the extension was pending was considered an "overstay" or not, and whether we need to file a waiver - and will hopefully be updating the board with news that he was not considered an overstay and that we've obtained a CR1 or K3 visa and that he's back in the U.S. with me again!

My question was, I suppose, admist conflicting information, is an "overstay" tolled while an extension application is pending (and thus not considered an overstay)?

Thanks!

Green

[zyggy 9]

Not knowing that AOS was an option, we opted for him to return to Canada - again, because we understood that Canadian visitors were allowed six months - and his six months were up.

We never intended (and, to the best of my knowledge) never did anything illegal. We filed the I-130 and I-129 like everyone else, and waited our turn to be together again.

{/quote]

Incorrect.. Canadians are allowed to be given a term of authorized stay of as much as 6 months. The actual period of authorized stay given to that individual is up to the discretion of the CBP...

The CBP gave your fiancee an authorized stay of only 3 weeks. Any stay longer than that is time out-of-status...

Whether one accumulates out-of-stauts time that could generate a ban if an application to extend the period of authorized stay is pending is open to interpretation. If one has an application pending.. that time is still considered out-of-status, but you are permitted to remain in the US while the application is pending. If the application was denied, your fiancee would have been placed in removal proceedings or given the opportunity to leave voluntarily...

How your circumstances play out due to the fact he left the US before the application is adjudicated is also open to interpretation...

Long story short.. a lot of gray area.. not exactly the place you want to be for an expedient resolution to your situation

Edited September 13, 2006 by zyggy

[Yodrak 7]

Green,

....

Not knowing that AOS was an option, we opted for him to return to Canada - again, because we understood that Canadian visitors were allowed six months - and his six months were up.

We never intended (and, to the best of my knowledge) never did anything illegal. We filed the I-130 and I-129 like everyone else, and waited our turn to be together again.

We NEVER planned to get married while he was here as a visitor (we'd known eachother two years, and I had visited him in Canada) - but we did decide to marry AFTER he was here. It was a spur of the moment decision - with no untoward intent - as we had no idea when we married that by marrying he might be able to stay in the U.S. - we married with the knowledge and expectation that, regardless of whether we were married or not, he would have to return to the Canada when his extension expired.

Agree, you did nothing illegal by getting married while your husband was in the USA. And if what you write is true, that it was a change of plan made while he was here, had your husband stayed to adjust status that would also have been legal and proper. No disagreement there. My point is, by saying that he would have stayed you demonstrate that the CBP officers were correct in their assessment of the situation - your husband did not have strong enough ties to Cananda to compell his return, he would have stayed and would not have returned had he realized he had that option.

I will consult with an attorney again now - as to whether his stay while the extension was pending was considered an "overstay" or not, and whether we need to file a waiver - and will hopefully be updating the board with news that he was not considered an overstay and that we've obtained a CR1 or K3 visa and that he's back in the U.S. with me again!

My question was, I suppose, admist conflicting information, is an "overstay" tolled while an extension application is pending (and thus not considered an overstay)?

Thanks!

Green

Good move to ask the question of an attorney. I don't know the answer, which is why I did not offer any suggestion other than to have a consultation. Please do let us know what you learn and I also am hopeful that the answer will be 'no overstay'.

Yodrak

Edited September 13, 2006 by Yodrak

[evergreen 0]

At the time that my now husband entered the US, he did not have any immigration or non-immigration applications filed or pending.

In fact, at that time, we were planning on MY moving to Canada, not him moving to the U.S.! We did want to try to find a legal way to spend as much time together as possible while we waited for my Skilled Worker application to Canada to process.

It wasn't until later, when we found out how difficult it was for a U.S. nurse to get a nursing job in Canada, and how nursing wages in Canada were significantly less than nursing wages in the U.S., that we even decided we wanted to live in the U.S. - so there was defintely NO immigrant intent at the time he entered the U.S., or even during the time he was here.

We were just doing everything we could do under the law to stay together for as much time as possible while we figured out what to do.

Thanks!

[boboroad 0]

At the time that my now husband entered the US, he did not have any immigration or non-immigration applications filed or pending.

In fact, at that time, we were planning on MY moving to Canada, not him moving to the U.S.! We did want to try to find a legal way to spend as much time together as possible while we waited for my Skilled Worker application to Canada to process.

It wasn't until later, when we found out how difficult it was for a U.S. nurse to get a nursing job in Canada, and how nursing wages in Canada were significantly less than nursing wages in the U.S., that we even decided we wanted to live in the U.S. - so there was defintely NO immigrant intent at the time he entered the U.S., or even during the time he was here.

We were just doing everything we could do under the law to stay together for as much time as possible while we figured out what to do.

Thanks!

My wife (Canadian) filed our paperwork after she moved here to the U.S. and filed an adjustment of status. This was legal and all good. But we made a hugh mistake that is costing us now. We traveled without an approved AP. She was she was then denied re-entry at the Ambassador Bridge. We lost everything except our I130's and have been frantic for the last 9 months, we have finally got a completed package at the NVC, hope fully on its' way to Montreal. I am a U.S. citizen

Edited September 15, 2006 by boboroad

[evergreen 0]

I'm so sorry for what you are going through. Your I130 is at the NVC now? What did you have when you were traveling? The K3? Are you separated (geographically) now? I hope you are back together soon. The consulate/embassy at Montreal has been very helpful and kind so far.

I will definitely remember not to travel without an AP. At what point will our spouses be able to travel between Canada and the U.S. without AP? It's all so crazy, huh?

I used to live 15 miles from the Canadian border, and we'd cross on an almost daily basis without even having to show any ID - Canadians too, crossed into the U.S. in a similar fashion at the small border we lived near. It never really occurred to me how difficult, complicated, and confusing this entire immigration process (both ways) would be!

I spoke with the consulate, and they say that because my husband had a Canadian passport, had filed for an extension of his I94, and left at the six month mark, and was never denied entry, notified of an overstay, asked to leave the U.S., or placed in deportation status, he is NOT considered an overstay!

We have an interview scheduled in two weeks!

They are also going to try to skip the K3 and go straight to the CR1/I130 to avoid us having to come back for a second interview. Now I'm rushing to make sure I have the paperwork for both the I129 and the I130 for the interview.

I'm still nervous as you know what, but it looks like in a matter of weeks my husband may be coming "home" to stay!

Edited September 16, 2006 by evergreen

[Reba 2]

I will definitely remember not to travel without an AP. At what point will our spouses be able to travel between Canada and the U.S. without AP? It's all so crazy, huh?

If a person has a K3 visa, they are allowed travel in and out of the US for two years. If a person has a CR1/conditional green card, they are allowed travel in and out of the US for two years. If a person has an IR1/unconditional green card, they are allowed travel in and out of the US for 10 years. At the expiration of all of these visas, the person needs to apply for either extention or removal of conditions or AOS, whichever is appropriate for their status.

K1 visa holders Cannot travel outside of the US without either an AP document, or until they get their green card.

People who come to the US and marry while on a visitor visa, should not leave the US without first obtaining an AP document (even then, sometimes not advisable) or until they receive their green card. Which is why marrying on a visitor visa is not advisable. You're pretty much stuck here until you get your card, and in some places that can take 2 years or more.