AOS without prior visa?

[HeartOfAllThings 2]

Hi,

I entered the US a month and a half ago for a 3 months visit, while our 129F was pending. It got straight denied because of lack of evidence (we didn't send anything else than 129F... I know, I'll read the guides from now on. Several times over). After poking around, and starting a thread asking for help, we found that since I am already in the US, requesting for an Adjust Of Status would be the best option for us, so I can stay here with her. We're set to get started on it but still one question remains: on the USCIS website, they mention that for *some* cases, having an approved petition is required before being able to undergo concurrent filling. As a Canadian I entered the US without any visa, and can stay here as a touris/visitor for a total of six months.

I have not found any information that explained to me in what case a prior petition is required for AOS. Could someone please give me some advice, or direct me to a link that would finally have that information? I'd appreciate a lot!

The more I read about it the more it seems to me like the best option for us and I really hope it works! Thanks!

[Done--Really 331]

When and where were you married--it is key to AOS--let's start with that and we can go from there

[HeartOfAllThings 2]

Not yet. We're moving Next Wednesday so it will be anytime after that. Looking forward to it

[*wifey* 0]

When and where were you married--it is key to AOS--let's start with that and we can go from there

as far as i get this, he s not married at all - since filing the 129f would have been for the viance visa. i may be completely wrong, but thats what i understand.

but i cant help with the actual question, i m sorry.

i ve never heard of doing AOS without filing for a visa before - but there are a lot of things i ve never heard of, so maybe....

EDIT: i was right - answered the same time.

Edited June 10, 2011 by *wifey*

[KayDeeCee 4,891]

You can get married and file for AOS. You will have to prove you had no intent on getting married at the time you entered the US. That seems kind of hard to do, since you entered with a 129F petition pending.

Why not get married and then file for a spousal visa?

[Done--Really 331]

Then forget AOS here--you would be entering with a clear intent to marry--no problem so far--and then stay here to AOS. That is immigration fraud under the law, and you will be in a heap of trouble if ever discovered--not worth the chance since you live so close and go back and forth even after you marry and start the CR-1 paperwork.

[HeartOfAllThings 2]

You can get married and file for AOS. You will have to prove you had no intent on getting married at the time you entered the US. That seems kind of hard to do, since you entered with a 129F petition pending.

Why not get married and then file for a spousal visa?

Yikes... Well with my understanding of the visa process, I would need to go back home until the visa gets approved, would I not? We really don't want that to happen :\

[Casprd 167]

Actually from what has been posted many times, the burden of proof is on USCIS that you did enter with intent, but in order to adjust status you will still need to file a petition and provide all the supporting documentation such as birth certificate etc. These types of docs aren't usually something someone travels with so just having them can be evidence of intent. Take a look at the guides and it will show what is required.

Having said that, it may be a safer bet to get married now and then just proceed with the CR-1 visa.

[HeartOfAllThings 2]

Then forget AOS here--you would be entering with a clear intent to marry--no problem so far--and then stay here to AOS. That is immigration fraud under the law, and you will be in a heap of trouble if ever discovered--not worth the chance since you live so close and go back and forth even after you marry and start the CR-1 paperwork.

''no problem so far''.. I don't see what you mean by that, since right after you mention it being fraud under the law?

[Done--Really 331]

You can get married here--that's absolutely no problem, but if you came with intent to marry AND STAY, that is where the visa fraud kicks in. As to staying here, you can stay right up to the six month mark, and then leave, and then return so long as you continue to have strong ties to Canada. You can read many, many threads here of people who do exactly that with no problems. Just don't start down a path that can bury you if discovered when it is so easy to do it right--think what it would be like if you lived in Argentina and couldn't travel to the US at will, but you are right next door--take advantage of it.

[HeartOfAllThings 2]

Actually from what has been posted many times, the burden of proof is on USCIS that you did enter with intent, but in order to adjust status you will still need to file a petition and provide all the supporting documentation such as birth certificate etc. These types of docs aren't usually something someone travels with so just having them can be evidence of intent. Take a look at the guides and it will show what is required.

Having said that, it may be a safer bet to get married now and then just proceed with the CR-1 visa.

Hmm well.. didn't have intent to get married on this trip. Like I said it was originally a 3months trip I have my return ticket for July. Now I don't want to use it, but at the time I bought it it was my intention. The plan was to come for a long, very much appreciated visit then go back roundabouts when I would have to do my part of work in Canada.

I do not have personal docs except for the contents of my wallet (driv license& health ins card) and my passport. I'd have to get my parents to mail my birth certificate & etc and getting married then filing for AOS wasn't my intent in coming here. I really hope this works..

[HeartOfAllThings 2]

You can get married here--that's absolutely no problem, but if you came with intent to marry AND STAY, that is where the visa fraud kicks in. As to staying here, you can stay right up to the six month mark, and then leave, and then return so long as you continue to have strong ties to Canada. You can read many, many threads here of people who do exactly that with no problems. Just don't start down a path that can bury you if discovered when it is so easy to do it right--think what it would be like if you lived in Argentina and couldn't travel to the US at will, but you are right next door--take advantage of it.

Another issue I haven't had a chance to figure out on google, gov sites and vj... the limit of 6 months is for the whole year, or at a time? If I can just pass the border then come back 5 days later for another 6 months it would be a lifesaver.

[Done--Really 331]

Just don't know why you would take the risk--you filed for a fiance visa, so you have to overcome that "little" problem. You may be excluded form tehr US for a very, very long time if USCIS thinks there is visa fraud involved, and on the surface, that is exactly what it will look like--right or wrong.

[Moomin 292]

Unfortunately, it's up to you to prove you did not intent to immigrate/AOS if you get asked later on. That way you're making it even harder on people just trying to visit their fiancés when you pull the staycation card.

You're free to marry in the US anytime you'd like and free to visit during the CR-1 route. But read the aforementioned and you'll understand why some people may be denied entry.

Please anyone correct me if I am wrong about this, or to explain better.

[Done--Really 331]

There are many, manuy threads here of people who went back and forth to Canada all during the CR-1 process, and it's generally not a problem, but there are no guarantees. As to how long you have to leave before returning, it is entirely up to the CBP folks, but since you are close by, the $$ and time risk is very small if you are denied entry.

Let's take a look at what might happen:

1) You get marreid right away and file for CR-1.

2) You still have over 4 months left on this stay, so that eats into about half the normal waiting time.

3) If you are lucky like most of the Canadian folks here, you can come back and forth a few more times before it is over, or maybe you can even stay until the end if you don't have to be back for a job. But not having a job in Canada will make it harder to get in the second time,

So overall, not so bad, eh !!