Adjusting Status from Tourist Visa

[niner 1]

Hello -

I have been researching my question on this site and others as well as the overall immigration process for many days and I can't seem to find a parallel situation.

I am a US citizen and my wife is Canadian. We were both living in Panama for a lifestyle "reboot" when we met in February of 2011. Even though I live in Panama, my businesses are in the US (I work remotely) and I travel back to the US often for business and she often comes with me. On one of these business trips in September of 2011 we decided to be married officially while in Colorado. A week or so later we flew back to Panama to go about our life. During that trip my wife entered on a "tourist" (B-type) visa. We held a proper celebration for our marriage in Panama for family and friends in February of 2012.

We would now like to move to the US from Panama for many reasons. I'm expanding my business, etc. To start that process, we flew to Florida this past week to check out real estate and now have a contract to buy a house. In the mean time we need to go back to Panama in order to wrap up things there including moving our pets, etc.

Can my wife return with me to the US to live? I imagine explaining the situation to the officer at "point of entry" and then filing to adjust her status? If not, how can we proceed so that both my wife and I can live in the US?

My understanding is that the K3 visa is deprecated in favor of the CR-1/IR-1.

Any clear advice would be greatly appreciated!

Zach

[Kim & Gesner 14]

I believe most responses will say she will need to return to her home country while you file as because of then intent matter. It appears there was no intent to move here when you married but now you clearly have intent for her to live here so AOS wouldn't really be an option. But I am not as knowledgeable as others and they may have more advice or suggestions for you.

[Harpa Timsah 13,258]

Is your wife currently in the US? If she needs to leave next week, AOS isn't good for you, because it is illegal to enter the US on a non-immigrant visa with the intent to immigrate. The CR-1 would be appropriate in this case. Since you are abroad, you might get auto-expedited since the petitioner (you) is living abroad.

If she can stay, you could AOS. She wouldn't be able to leave for a few months at least, until she gets her temporary travel permission approved.

Edited August 13, 2012 by Harpa Timsah

[Moomin 292]

No, she can't enter the US with the intent of immigrating using a tourist visa, or any other non-immigrant visa.

Look into this route; http://panama.usembassy.gov/howtoimm.html

Direct consular filing, which takes less time than any other way to go about it. You have to be a resident in the country in order to file this way.

[jkelly07 120]

if your wife is not a a us citizen and don't have a green card, she may be refused entery,she can not have adjustment of status with out 1-130, she needs to have inspaction first,

[Que Saudade 284]

Can my wife return with me to the US to live? I imagine explaining the situation to the officer at "point of entry" and then filing to adjust her status? If not, how can we proceed so that both my wife and I can live in the US?

Unfortunately, your wife can not enter the US with the intent to immigrate. This would constitute immigration fraud. Being that you are already married, there is no way for her to enter the United States and adjust status without committing perjury, except via an immigration visa. You guys have to file for CR1 spousal Visa.

Being you are USC and she is Canadian, I don't see how you can file directly at the consular office in Panama. Unless you are a lawful permanent resident of Panama (as moomin pointed out).

[Hypnos 6,576]

I believe CR-1 / IR-1 immigrant visas currently take 8-10 months to process; less if you qualify for DCF.

Edited August 13, 2012 by Hypnos

[Little_My 464]

You can submit the I-130 for the CR-1 process now, while you are in the US, to get the process started. At the end of her current authorized stay, your wife has to leave and return to Panama. She will then wait out the rest f the process there, while she is wrapping up her/your affairs there, and she'll have an interview at the consulate.

If she does not necessarily need to return to Panama in the next roughly 3-4 months, then you could file for AOS in the US. You will then go through the entire process, including the medical and interview, within United States.

If you have established residency in Panama, then DCF might be an option, and could be faster than CR-1.

[Xanax 349]

As far as i am aware, as you are both currently outside the US your options are DCF if you are a resident Panama or CR-1.

Entering the US on a tourist visa with the intent to adjust status and stay in the US is immigration fraud/ illegal.

[Little_My 464]

According to his post, they "flew to Florida this past week to check out real estate". To me it seems that they are both currently in the US. If that is the case, they can either go for AOS, or CR-1.

[niner 1]

According to his post, they "flew to Florida this past week to check out real estate". To me it seems that they are both currently in the US. If that is the case, they can either go for AOS, or CR-1.

We are in the US - actually scheduled to leave this afternoon back to Panama. When we arrived here last week we went up to the border patrol window together and she asked us a few questions. The usual type such as how long are you going to be here, what do you do, what's the purpose of the trip. We answered the purpose was for a vacation. Then she asked if I had "petitioned for my wife" and I said that we were "considering it". That was basically the extent of our conversation and she told my wife how long she could stay; I think it was February.

From what I read here it seems that it would be better for us to NOT go back to Panama and instead stay here to file the I-130. Is that right? We certainly are not intending to commit visa fraud but, since this trip was a "planned to return" but we ended up finding a house we'd like to buy is that an allowable situation?

Thanks everyone!

[Little_My 464]

Yes. If you did not originally plan to and intent to come to the US to adjust status here, then you are eligible for AOS. If you had been specifically asked whether or not you were planning to file for AOS while in the US, and you had said no, at the time of your last entry, then I would be hesitant to do so. However, if the conversation at the border went as you described above, and you didn't originally intent to remain here to AOS, you can proceed to do so.

Just remember that your wife cannot return to Panama - or go anywhere else outside the US for that matter - for at least three months from when you file the paperwork.

If you choose to remain in the US, you don't only file the I-130, you'll also file the I-485 with it, along with all the supportive documents that are described in the instructions. The I-131 is for the Advance parole travel document, and I-765 for the temporary work document, EAD.

The VJ guide for the process is here: http://www.visajourney.com/content/i130guide2

It seems that you have to make up your mind fairly quickly.. so read through the guide, and have a discussion about what makes most sense for you. AOS within US will cost you altogether around $2,000, and takes roughly 4-6 months, unless the processing times have changed lately. CR-1 is cheaper, but takes longer, and your wife would spend most of that time in Panama.

[niner 1]

Yes, we have to decide quickly!

I just spoke with an immigration attorney who said that you should always wait 60 days before filing for an adjustment of status. I had not heard that before but he thought that was critical - more so than the actual real-world change in our plans (a trip turning into a desire to move) as it's objective instead of subjective. In other words there is evidence of the 60 day wait.

[Harpa Timsah 13,258]

Yes, we have to decide quickly!

I just spoke with an immigration attorney who said that you should always wait 60 days before filing for an adjustment of status. I had not heard that before but he thought that was critical - more so than the actual real-world change in our plans (a trip turning into a desire to move) as it's objective instead of subjective. In other words there is evidence of the 60 day wait.

Lawyer hogwash. 60/90 day rule is not a thing, and never was. Find a consult that is more up to date.

[Little_My 464]

Agreed. IF you choose to file, file as soon as you have the paperwork together and your wife has gotten her medical done. She will need her birth certificate, which is probably in her home country - so get that mailed to you - and she should get her vaccination records too if she has those.

10 days, 30 days, 60 days, makes no difference. It seems to be some sort of an urban legend. Why would 50 days mean there was intent to file, but 60 days magically meant there wasn't? Sillyness, I say.

Edited August 13, 2012 by Little_My