Complicated situation, please help!

[Dominic 0]

Hello, first time posting, please help me with the following situation:

My fiance is a Canadian citizen, we want to get married this summer, is it possible to get married in the US and immediately apply for a status change and have her stay here with me and not return to Canada?

Here is what makes it complicated:

1) She is still waiting on her final divorce papers from the state thus I believe eliminating the possibility of a K1 application as you need that to apply. The judgement should come around May.

2) She is pregnant and I want her here ASAP.

3) She has a child from a previous marriage who would have to start school in August.

4) She is getting ready to sell her home, etc, in Canada.

If we get married in the US, would she be able to stay with me until she is approved?

What is the best route we should take?

Here is what I found from another website, please let me know if this is accurate:

http://www.nriol.com/immigration/usa-greencard-marriage.asp

Applying through Adjustment of Status with the USCIS.

Who Qualifies:

Any U.S. Citizen in the United States with a Foreign National Spouse who entered the U.S. legally.

Note to U.S. Citizens:

If your foreign national spouse entered the U.S. illegally (without a visa or visa waiver), you should wait to apply for adjustment of status when Sec 245(i) is extended. Check back here periodically for updates. Canadian Visitors do NOT need to show proof of entry (visa or visa waiver).

An Overview of the Process:

Once the marriage has taken place, the couple files the following with the Immigration and Naturalization Service (USCIS):

Petition for Alien Relative (USCIS Form I-130)

Application to Register Permanent Residence (USCIS Form I-485)

Biographic Information (USCIS Form G-325A)

Affidavit of Support (USCIS Form I-864)

Permission for Work Authorization (Optional) (USCIS Form I-765)

Medical Examination Results (USCIS Form I-693)

Request for Travel Documents (Optional) (USCIS Form I-131)

The appropriate supporting documents

The appropriate filing fees

The USCIS will contact you first regarding work authorization and permission to travel. The processing times vary from state to state. Some states will process them the same day, others can take up to 90 days.

The USCIS will contact you next to schedule an interview. This will be anywhere from 6 months to 18 months after filing the initial application.

Following a successful interview, the alien spouse will receive a stamp classifying him/her as a Conditional Permanent Resident.

The Conditional Status may be dropped by applying for Removal of Conditional Status within 90 days of the 2 year anniversary of the granting of Conditional Permanent Residency.

[Alex+R 0]

It is technically possible to do that if she have no intent of marriage when she enters the US and it just happens; it seems your fiancee definitely would be entering with intent to immigrate, so that is illegal. I don't think someone at least six months pregnant is going to have an easy time convincing the gov't that she had no intention of staying and marrying the father of her baby. She might even have a difficult time at the POE as a very pregnant lady.

[Tim and Bethanie 1]

Hello, first time posting, please help me with the following situation:

My fiance is a Canadian citizen, we want to get married this summer, is it possible to get married in the US and immediately apply for a status change and have her stay here with me and not return to Canada?

Here is what makes it complicated:

1) She is still waiting on her final divorce papers from the state thus I believe eliminating the possibility of a K1 application as you need that to apply. The judgement should come around May.

2) She is pregnant and I want her here ASAP.

3) She has a child from a previous marriage who would have to start school in August.

4) She is getting ready to sell her home, etc, in Canada.

If we get married in the US, would she be able to stay with me until she is approved?

What is the best route we should take?

Your situation is less complicated than you think, in fact it is not complicated at all.

If she will not be divorced until May, you will have to wait until May to file anything. I can't imagine

your petition would be through by the time school starts in August. I sure would not have her selling her home at this time, because she is going to need a place to live while you go through the process. Pregnancy by the way is not considered an emergency situation to the USCIS.

The best route you can take at this time is to try to shoot for a more speedy divorce, start reading the guides here for which ever visa you choose and get your ducks in a row for when you send the petition off.

Edited to add she could always try to visit for the 3 months allowed but as Alex stated it might be difficult being in a very pregnant state.

Edited February 1, 2007 by Tim and Bethanie

[tom&tata 2]

Hello, first time posting, please help me with the following situation:

My fiance is a Canadian citizen, we want to get married this summer, is it possible to get married in the US and immediately apply for a status change and have her stay here with me and not return to Canada?

Here is what makes it complicated:

1) She is still waiting on her final divorce papers from the state thus I believe eliminating the possibility of a K1 application as you need that to apply. The judgement should come around May.

2) She is pregnant and I want her here ASAP.

3) She has a child from a previous marriage who would have to start school in August.

4) She is getting ready to sell her home, etc, in Canada.

If we get married in the US, would she be able to stay with me until she is approved?

What is the best route we should take?

The best route is to wait and later on apply for K-1 if you intend to get married in US or K-3 if you intend to get married in Canada.

[Traviesa 0]

Extenuating circumstances are not taken into account in an immigration case most of the time. Your only options are to wait for the divorce to be finalized and file for the K-1 or get married in Canada and file for the K-3.

[wissooner 0]

Hmmm... yes, I agree, the k-1 or k-3 is the way to go. It is fraud, I think, if she comes to visit with the intent to marry.

[Dominic 0]

Thanks for all your replies.

Is the information posted on that website wrong, in particular that "Canadian Visitors do NOT need to show proof of entry (visa or visa waiver)"?

http://www.nriol.com/immigration/usa-greencard-marriage.asp

Applying through Adjustment of Status with the USCIS.

[tom&tata 2]

Hmmm... yes, I agree, the k-1 or k-3 is the way to go. It is fraud, I think, if she comes to visit with the intent to marry.

It is not fraud to come with the intend to get married. The issue is with the intent to get married and stay without proper visa.

[Daniellecc 0]

Yes, unfortunately everyone here is right... btu the most important thing, is that you knwo it is not only the k-1 you can't apply for with an unfinished divorce, it is every single one you can not apply for with an unfinished divorce.... and unfortunately there is nothing you can do to speed the inmigration process... because as someone said aroudn here, if it was fast and easy none of us would've been apart from our so for so long while we were in this process... and yes, if she comes here with the intent of marrying is illegal and more so if there is an unfinished divorce... that right there is obvious that there is nothing you can do about it... anyways... I guess this is teh same thing everyone is saying...just felt I should say it one more time, becasue it is a bit obvious how thw whole situation should be handled.

[Traviesa 0]

Thanks for all your replies.

Is the information posted on that website wrong, in particular that "Canadian Visitors do NOT need to show proof of entry (visa or visa waiver)"?

http://www.nriol.com/immigration/usa-greencard-marriage.asp

Applying through Adjustment of Status with the USCIS.

I don't think the web site is wrong. The issue at hand is not HOW the individual enters the US but with what INTENT. To enter with the intent to stay is illegal and you run the risk of facing a bar on re-entry if they decide that's what she's doing. The burden of proof would be on you to prove that she had no intentions of staying and it just happened that way, which would be really difficult after she just got done severing all those ties to Canada.

[Flames9_RN 358]

Yes as a canadian you do not require a waiver or anything, its up to the POE officer to let you in or deny you, and they do deny Canadians entry into the USA. One can not enter the USA and Knowingly stay. If one was to enter the USA and then make the decision to stay, get married and AOS, that would be fine, BUT to knowingly go into the usa, marry, and try to AOS, would be illegal. I guess you might have to proof it was not intentional. I'm sure many do this, but could cause you complications later down the road. And by going this route, ur spouse would most likely not be able to return to Canada until the AOS was over, even to a close relatives funeral etc etc. One would have to get an emergency advance parole for that. I'm sure many people enter the usa with intentions of staying and AOS with no problems, but i'm sure there are ones that get caught and get deported. Its not a short process, K1 takes approx 6 months, and the k3, cr-1 routes are longer, but none of that can start until she gets divorced.

As the above psoter stated, would be hard of you to prove,it was an all of a sudden decsion, as she is selling her house, bringing the child over, she will need proof (from the courts) that the child is allowed to move to the USA. Best of luck

Edited February 1, 2007 by flames9

[JenT 0]

Hmmm... yes, I agree, the k-1 or k-3 is the way to go. It is fraud, I think, if she comes to visit with the intent to marry.

It is not fraud to come with the intend to get married. The issue is with the intent to get married and stay without proper visa.

Correct.... there have been many cases of fiances/ees who have entered the US under the VWP, for example, married, remained for their 3 months and completed paperwork for the K3, and returned to their home country to await their K3 approval. All perfectly legitimate since there was no immigratio intent upon entry. Better bring proof of ties to your home country if you attempt this alternative, however.

[TracyTN 237]

Ditto what flames said.

None of us like it, but time apart during this process is almost inevitable, pregnancy or no.

[Tim and Bethanie 1]

Yes, unfortunately everyone here is right... btu the most important thing, is that you knwo it is not only the k-1 you can't apply for with an unfinished divorce, it is every single one you can not apply for with an unfinished divorce.... and unfortunately there is nothing you can do to speed the inmigration process... because as someone said aroudn here, if it was fast and easy none of us would've been apart from our so for so long while we were in this process... and yes, if she comes here with the intent of marrying is illegal and more so if there is an unfinished divorce... that right there is obvious that there is nothing you can do about it... anyways... I guess this is teh same thing everyone is saying...just felt I should say it one more time, becasue it is a bit obvious how thw whole situation should be handled.

It is not illegal to come to marry, it is illegal if you have the intent of staying. Just to clarify and avoid confusion.

[Dominic 0]

I hear you, maybe we would have to wait, and definitely not sell the house. Would an immigration attorney be able to help at all?

Man, this really sucks, I really can't see her going through this pregnancy alone.

Thanks for your advice, keep it coming.