Canadian, what's my status ?

[Michelle403 0]

If I was to marry in the states (hypothetically!) what would my AOS be? It doesn't appear I need a visitors visa to enter the US but also appears Canada is not part of the VWP. Any advice for this hypothetical scenario helps

[bsd058 296]

If I was to marry in the states (hypothetically!) what would my AOS be? It doesn't appear I need a visitors visa to enter the US but also appears Canada is not part of the VWP. Any advice for this hypothetical scenario helps

I was married in FL to my Floridian wife. I didn't need anything but a passport. You would be a visitor, and I think that carries a certain implied status. I can't remember which one though. I think it's B2 or something like that. Someone else may come on here and let you know. If you are going to enter to marry and adjust status, you need a K-1 visa. You can't just enter with the intention of marrying and adjusting status. However if you're already in the US and you get married, then you should be able to adjust status from visitor or B2 (I honestly can't remember what it is) or something like that.

I didn't need a visa because we were planning on moving back to Canada (which we did). But if you're planning on staying you will need a K-1 visa to enter and marry.

Edited April 3, 2013 by bsd058

[NinaD 6]

Hi,

You can enter the States for 6mo. at a time as a visitor. It is called a B-2 visa and is issued at the port of entry. Once the 6mo. is up you must return to Canada or you will have overstayed your visa and that can be big trouble down the road if you decide to emigrate as a wife or fiancee. Even if you marry while you are in the States while on a B-2 visitor visa you cannot do AOS. You must file the I-130 and wait to be approved as if you were still in Canada. I just went through the whole process and it took a year. I entered the States as a visitor and got married, we applied for a CR-1 visa with the I-130 application. When my 6mos. visitor time expired I had to go back to Canada and wait for the application to be approved. Once the application was approved I went to Montreal for the final processing (medical and interview).

Anyway, to answer your question. You can't do AOS. You don't need a visa to enter as a visitor since they issue it at the border when you enter the USA. If you do decide to do this don't tell the custom agent that you are going to the States to get married to an American, chances are they won't let you in as they might consider that a reason for you not to leave again (immigration fraud). Whatever you do, make sure that you are not in the States for over 6mos. at a time.

Also, during the processing time you can visit the USA. What I did was go back to Canada for two months after I got married, and then went back to the States to visit in the summer, then I went back to Canada for four months, then I went back to visit for five months. So I was able to visit my husband a lot during the year that we waited for the application to be approved. What I would suggest is entering the USA on your B-2 6mo. visa and getting married very shortly after you enter. Apply for the CR-1 visa RIGHT AWAY, then you can wait in the States for a lot of the approval time. But go back to Canada before that B-2 expires.

Hope this helped.

Edited April 3, 2013 by NinaD

[NinaD 6]

You don't need a visa to enter as a visitor since they issue it at the border when you enter the USA.

What I mean by this, is that you don't need a visa to enter as a visitor. If you are entering to emigrate (stay and work) then you need either the K-1 fiancee visa, or the CR-1 spousal visa. Just wanted to clarify that.

[NinaD 6]

Sorry to post so much, but I thought of something else...

Technically you could enter the USA as a visitor and then get married and do an AOS. The only hiccup would come if USCIS was to become suspicious about your "reason for visiting the States". You have to be able to show to them that the intention was not to get married and emigrate, but simply to visit. Kind of hard to do if you no longer have ties to Canada (ie. job, house, appartment, cars, bank accounts etc..)

This post is old, but check it out and you can see what others have talked about: http://www.visajourney.com/forums/topic/311551-canadian-in-us-on-b2-tourist-visa-wanting-to-marry-american/

I thought about doing the AOS after I got married, but after doing the research on how it works, it seemed risky to me and I was nervous about doing it. So I went the CR-1 route.

[bsd058 296]

Sorry to post so much, but I thought of something else...

Technically you could enter the USA as a visitor and then get married and do an AOS. The only hiccup would come if USCIS was to become suspicious about your "reason for visiting the States". You have to be able to show to them that the intention was not to get married and emigrate, but simply to visit. Kind of hard to do if you no longer have ties to Canada (ie. job, house, appartment, cars, bank accounts etc..)

This post is old, but check it out and you can see what others have talked about: http://www.visajourney.com/forums/topic/311551-canadian-in-us-on-b2-tourist-visa-wanting-to-marry-american/

I thought about doing the AOS after I got married, but after doing the research on how it works, it seemed risky to me and I was nervous about doing it. So I went the CR-1 route.

I was going to post something similar to this. Yes, it's possible, but the onus is really on the intending immigrant to prove that they didn't enter with the intention of immigrating.

You pretty much would have to prove that you still had a place to come back to in Canada and a return ticket (or way of returning) if you wanted to give good evidence.

Edited April 3, 2013 by bsd058

[sciencenerd 56]

I was going to post something similar to this. Yes, it's possible, but the onus is really on the intending immigrant to prove that they didn't enter with the intention of immigrating.

You pretty much would have to prove that you still had a place to come back to in Canada and a return ticket (or way of returning) if you wanted to give good evidence.

My understanding based on my time on VJ is that intent is not enough to deny (with the possible exception of documentable proof of immigrant intent). I can say that in my circumstance, they did not ask any questions or ask for any documentation regarding intent. They asked a couple times if my wife ever left the country since entering (she overstayed), but did not even question if there was an intent to immigrate when she entered. Our experience is consistent with many others on VJ who were in similar situations. My wife overstayed almost 4 years before applying to adjust status, so perhaps immigrant intent wasn't as big of an issue, but I have not yet heard of it becoming an issue during the interview even with a relatively quick AOS. It is obviously fraudulent to say you are coming to visit when you are coming to immigrate, but it is not fraudulent to have circumstances change and adjust status as a tourist. You don't have to have tons of proof that you intended to go back to Canada. We would not have been able to prove that despite the fact that it was true - our lawyer had absolutely no concern about this and neither did the immigration officer. On my wife's application, we listed her status as "duration of status" at the direction of our lawyer and because she had a passport stamp with "d/s" handwritten.

Edited April 3, 2013 by sciencenerd

[bsd058 296]

My understanding based on my time on VJ is that intent is not enough to deny (with the possible exception of documentable proof of immigrant intent). I can say that in my circumstance, they did not ask any questions or ask for any documentation regarding intent. They asked a couple times if my wife ever left the country since entering (she overstayed), but did not even question if there was an intent to immigrate when she entered. Our experience is consistent with many others on VJ who were in similar situations. My wife overstayed almost 4 years before applying to adjust status, so perhaps immigrant intent wasn't as big of an issue, but I have not yet heard of it becoming an issue during the interview even with a relatively quick AOS. It is obviously fraudulent to say you are coming to visit when you are coming to immigrate, but it is not fraudulent to have circumstances change and adjust status as a tourist. You don't have to have tons of proof that you intended to go back to Canada. We would not have been able to prove that despite the fact that it was true - our lawyer had absolutely no concern about this and neither did the immigration officer. On my wife's application, we listed her status as "duration of status" at the direction of our lawyer and because she had a passport stamp with "d/s" handwritten.

Length of overstay and waiting 4 years to submit an application helps actually. If you apply right away it shows that you likely intended to stay and I think this is more in step with the OP's situation. If they wait 4 years, ya, they probably won't have a problem. But if they cross the border, get married and 2 weeks later submit an app for adjusting status, they should be ready to show that they didn't cross the border with the intention of immigrating and telling CBP that they were only visiting.

[sciencenerd 56]

Length of overstay and waiting 4 years to submit an application helps actually. If you apply right away it shows that you likely intended to stay and I think this is more in step with the OP's situation. If they wait 4 years, ya, they probably won't have a problem. But if they cross the border, get married and 2 weeks later submit an app for adjusting status, they should be ready to show that they didn't cross the border with the intention of immigrating and telling CBP that they were only visiting.

I agree our situation was different because of the time period. However, I have been on VJ for a few years and pay close attention to other Canadian filers adjusting from tourist status and have not seen any of them have a hard time with it despite sometimes short timeframes. I'm not saying it absolutely can't happen, but I haven't heard of it happening and have read many posts from long-time VJ-ers that intent by itself is not a reason to deny, much less not having proof of non-intent. I think it is an extremely low risk, but obviously everyone has to make their own decisions.

[bsd058 296]

I agree our situation was different because of the time period. However, I have been on VJ for a few years and pay close attention to other Canadian filers adjusting from tourist status and have not seen any of them have a hard time with it despite sometimes short timeframes. I'm not saying it absolutely can't happen, but I haven't heard of it happening and have read many posts from long-time VJ-ers that intent by itself is not a reason to deny, much less not having proof of non-intent. I think it is an extremely low risk, but obviously everyone has to make their own decisions.

Fair enough.

[ValerieA 350]

OP, we really don't have enough info to give you good advice right now. Are you currently in the US? If so, you are OK to get married and AOS. It is not OK to cross the border planning on AOSing once you are there (it's OK to cross the border with the intention to get married, just not intending to AOS).

Further to some comments above - intent alone is not a reason to deny. There must be other significant negative factors.

[Michelle403 0]

No I am not, but my boyfriend who is USC is living in Canada and has overstayed. Our lawyer said he knew lots of couples who visited their SO, the USC surprised them with a proposal and they decided to marry and stay in the US and I think I've convinced my SO to do the K1..I really don't want to risk being banned

[Michelle403 0]

When we apply for k1 what problems may arise once the the us gov realized my SO has been here over the 6 months hes allowed?

[hmh33 117]

If I read you right, your USC boyfriend has overstayed in Canada. The US government won't care about that.

[AnotherLostSoul 167]

I am not really understanding what is your problem and what you actually really want to do. If your boyfriend overstayed IN CANADA but you guys are happy in Canada, you guys could get married in Canada and if possible (don't know) do AOS for HIM so that he can stay in Canada. However, if you are desperate to move the US and live in the US then no one gives a hoot about how your boyfriend's status was in Canada. He is leaving that country and he is USC who is going home. The United States does not give a dang whether he was illegal there, or his status expired, or he still has a nice good status. So at this point it is up to you what you really want to do....