I don't want to leave him!

[Harpa Timsah 13,258]

To the OP: If staying with your husband is as important to you as you say it is, you need to seek help from an experienced lawyer regardless of the cost. This is a very serious issue for you and your husband's future. Seeking advice on random forums and subsequently acting on it in this type of case is frankly irresponsible.

It is SOP that the Department of State will automatically charge you with material misrepresentation/fraud when you apply for your CR-1 once they see what happened; this is under the 30/60 directive. You can find out more about this in the Department of State's Foreign Affairs Manual and the Administrative Appeals Office public appeals decisions on uscis.gov. I'm not saying definitively that they will, but it is SOP. This can permanently ban you from the United States with a small possibility of obtaining a waiver, but hardship from Canada is difficult to prove. None of the AAO appeals mention Canada.

Under the caselaw Matter of Cavazos, assuming there are no other aggravating factors, your AOS can be approved even if USCIS wants to assert that you had preconcieved intent to remain. Going back and applying for a CR-1 can be a big risk, but you need legal help to determine your rights and options.

The 30/60/90 day rule no longer exists . This is lawyer's hogwash.

[CC90 90]

The 30/60/90 day rule no longer exists . This is lawyer's hogwash.

There was never a "90". It does exist, and I see it applied very consistently. Talk to a lawyer or the DOS and you'll see what I mean. Have you read the FAM? Rio and CDJ are very intense on this one in particular.

Edited August 31, 2011 by CC90

[Harpa Timsah 13,258]

Yes I have. It doesn't exist.

[CC90 90]

Yes I have. It doesn't exist.

http://www.state.gov/documents/organization/87011.pdf

??? It's right here.

[Kathryn41 3,205]

I need opinions, advice, ideas, reassurance, anything! I entered the US (from Canada) with intentions of marrying the love of my life. I didn't mention that to the border officer (obviously) in fear of being denied entry. A couple of weeks after entering the States, I married my darling (happiest day of my life!) and though I know I'm not legally allowed to stay, I do not wish to leave my husband's side ... I don't want to go back home and apply for a K-3 Visa or a CR-1 Visa. I just want to apply for AOS so that I can stay with my husband. Please help me.

P.S. I know I'd have to lie and risk being deported.

You have received some good advice here (along with some bad). The last thing you want to do is lie to immigration. Really consider this - is the few months of being together right now worth a life time of being denied entry to the US and not being able to live here? That is what you are really risking, not just deportation.

You are allowed to enter the US (and Canadians are not on a Visa Waiver programme - they have a special relationship with the US where they receive a de-facto B2 visitor's visa when crossing the border) and you are allowed to get married to your US partner. You are not allowed to complete the processing from within the US if you entered the US with the intent of getting married. It is considered visa fraud to use a visa issued for one purpose - in this case the de-factor B-2 visa - for a totally different purpose - to immigrate to the US.

Misrepresentation - lying to immigration - is something for which there is no statutes of limitation. It can haunt you the rest of your life. As a Canadian you are fortunate that you are able to visit during the CR-1 process so won't have to face long periods of separation. No one wants to be apart from the one that you love, but look at doing this the legal way as a short term pain for a long term gain. If your relationship is as important to you as you say it is, it is worth doing it right and not putting all of dreams and hopes for future happiness at risk. In marriage, as in life, you will face many challenges. Learning how to deal with them with maturity and intelligence will go a long way to helping you deal successfully with these challenges. Doing the immigration process properly is one of these first challenges to your marriage - but the long term benefits will far outweigh the short periods of separation that will be required to do this correctly. It is only a matter of months. Is that really worth the price that will take the rest of your life to pay?

Start the CR-1 process now and when your 6 month stay legally allowed is up, return to Canada and allow the rest of the process to take place. In the meantime you can work on establishing the bona-fides of the marriage so you will have an easy approval. Good luck.

Edited August 31, 2011 by Kathryn41

[Harpa Timsah 13,258]

http://www.state.gov/documents/organization/87011.pdf

??? It's right here.

The Foreign Affairs Manual, or FAM, is used at consulates abroad (even you mention Rio and Juarez), and not within the US for Adjustment of Status. It does not appear in the Adjudicator's Field Manual, which is used by USCIS.

[Kathryn41 3,205]

http://www.state.gov...ation/87011.pdf

??? It's right here.

This is from the Department of Foreign Affairs Manual - Department of State and not from the United States Citizenship and Immigration Services Department. They are two different departments and notoriously bad about communicating with each other. They also have different criteria. You will not find the 30/60 rule anywhere within the USCIS Adjudicator's Handbook. It is USCIS that will determine the eligibility of any I-485 application based upon an I-130.

The 30/60 Rule in the above document is listed as a 'guideline' only to help determine if misrepresentation is possible. It is not a legally defined procedure nor is it written into the law.

I wouldn't base my future happiness on this guideline to prove I didn't violate immigration law - especially if I did.

[CC90 90]

You guys are not reading what I'm saying.

If she does AOS, this rule will not be applied because it is a DOS directive. If she applies for the CR-1 at the consulate, they can and will apply it and possibly find her inadmissible.

USCIS, as both of you say, will not. Matter of Cavazos will rule and it can be favorably adjudicated.

Please read the above posts again.

[Kathryn41 3,205]

You guys are not reading what I'm saying.

If she does AOS, this rule will not be applied because it is a DOS directive. If she applies for the CR-1 at the consulate, they can and will apply it and possibly find her inadmissible.

USCIS, as both of you say, will not. Matter of Cavazos will rule and it can be favorably adjudicated.

Please read the above posts again.

No, I'm sorry. DOS directives apply to Department of State. If she is applying from within the US it does not fall in the jurisdiction of DOS - it falls within the jurisdiction of USCIS. USCIS has its own directives that they use. If you can find anywhere in the actual legislation or in the USCIS Adjudicator's handbook where it discusses the 30/60 rule please share the link. USCIS is under no requirement to observe a directive from a DOS Foreign Affairs publication.

This is where you will need to look to find out what applies at USCIS: http://www.uscis.gov...00045f3d6a1RCRD

You will find that a search through the USCIS website on 30/60 rule or 30/60 rule + I-485 brings up no reference to the 30/60 rule being used by USCIS adjudicators for I-485 applications. You can check the Adjudicator's Manual through the above link but there are also links to the Immigration Act and the Federal Register that you can explore.

If she applies for CR-1 she will not be found ineligible for a visa because she married in the US whether she was present for 1 day or 90 days. She is allowed to enter the US to get married. She is not allowed to enter the US on a visitor's visa with the intent of getting married and remaining in the US. That is what the CR-1 visa is for - the spouse of a US citizen to enter the US as a permanent resident. It does not matter how long or how short she was in the US before the marriage unless there are overstay situations which would create a bar on re-entry.

Edited August 31, 2011 by Kathryn41

[Deputy Purple 1,294]

As you say, AOS with USCIS and applying for a visa from the DOS are very different processes with very different rules.

Under the 30/60 directive in the DOS FAM, seeing that she violated her nonimmigrant status within 30 days of entering, it presents a "nonrebuttable presumption of fraud" that she had preconcieved intent to remain when she entered. Presenting herself as a tourist is misrepresentation of a material fact that the DOS will assert she committed under their rules.

The USCIS, on the other hand, will adjudicate the matter favorably. I've worked closely with the DOS in the past and I've seen this happen too much.

Wait, so you're saying that if she goes through consular processing then they'll deny her because getting married in the US while on a non-immigrant visa somehow violates the terms of her entry?

If she gets married then returns to Canada for consular processing how did she violate the terms of her non-immigrant entry?

Not that it matters because she is safe to remain and simply Adjust Status...

[CC90 90]

Because she had intent to immigrate and the DOS considers marriage that soon after entry (30/60) as material misrepresentation to the CBP officer when she applied to temporarily visit. I've worked in the past with the DOS an have seen this happen too often.

The rule will only apply if she transfers jurisdiction to DOS. If she goes through USCIS, she won't have a problem even with a marriage that short after arrival. See Matter of Cavazos. They are routinely adjudicated favorably.

[CC90 90]

Kathryn, that is exactly my point.

Consular processing is with the Department of State and they will apply the 30/60 rule if she applies for he CR-1 outside the US.

You are exactly correct when you say that USCIS does not even look at the rule, which is exactly why she is safe adjusting status.

[Kathryn41 3,205]

Kathryn, that is exactly my point.

Consular processing is with the Department of State and they will apply the 30/60 rule if she applies for he CR-1 outside the US.

You are exactly correct when you say that USCIS does not even look at the rule, which is exactly why she is safe adjusting status.

You have it backwards. What they are looking at is intent at time of entry for USCIS. There is no limitation that states if you got married more than 30 days after entry you did not commit visa fraud. There is no statement of limitation of when visa fraud can be committed. Therefore, it can be identified as happening 90 days after entry as much as it can 2 days after entry. That does not mean she is 'safe' - it means she is always at risk of being identified as committing visa fraud. There is no statutes of limitation either procedurally or legally.

The Consular officer is not going to say 'you got married within 30 days of your visit to the US therefore you had immigrant intent on that visit even though you did not stay in the US" so I am denying a Cr-1 VISA. intent is established by staying in the US. The intent is not 'future intent' - it is 'present intent' .

Yes, she is intending to immigrate but not on that visit. Getting married in the US does not prove immigrant intent. Many people marry in the US with no intention of staying in the US - especially in Las Vegas . It is the intending to remain in the US after marriage when entering on a non-immigrant visa that is the problem. Can she get away with it? yes, it is possible. Should she try? No. Why risk future happiness when a few short months processing through the Consulate will give her legal permanent resident status in the US without it ever having to come back and haunt her. It takes just one phone call from a disgruntled old girlfriend or boyfriend to USCIS saying they planned to get married on that entry to open up an investigation. Her posting here on this site freely admitting her intent to get married and her willingness to lie to remain in the US is also a matter of public record.

And before you ask, yes USCIS and Consular officers DO read Visa Journey and have made the connections in the past between members on this site and case files on their desks.

The legal course of action is for her spouse to file the I-130 and for her to go through the CR-1 process through the US Consulate in Montreal - as so many other of our Canadian forum members have already done.

[Udella&Wiz 325]

ceadsearc: No, I still have over 5 months left, but I read that while applying for a K-3 or Cr-1 Visa that I must return to Canada while everything is being processed. Did I read wrong?

I really have to agree with Kathryn - I'm sorry, but there are rules to follow, why are you trying to circumvent them? You will likely just cause yourself undue heartache. What if they don't believe you and they ban you? Is that better then (as Kathryn says) a few short months apart while you do it the right way?

You are going to be playing by immigration's rules for the next 3-5 yrs - might want to get used to it.

[SapphireDreams 71]

Because she had intent to immigrate and the DOS considers marriage that soon after entry (30/60) as material misrepresentation to the CBP officer when she applied to temporarily visit. I've worked in the past with the DOS an have seen this happen too often.

The rule will only apply if she transfers jurisdiction to DOS. If she goes through USCIS, she won't have a problem even with a marriage that short after arrival. See Matter of Cavazos. They are routinely adjudicated favorably.

The timeframes you're referencing don't make any sense in this case, especially since she's from Canada. We don't have to apply for visas to visit the US and we can stay up to 6 months as visitor. She never had to apply to visit and never misrepresented herself. She told them she was going to visit, got married and is now going to file for the correct visa and then return back to Canada when her visitor status in the US is up to wait out the process. This happens all the time with Canadians.