What is the best option?

[MP74 0]

I'm a US citizen, and my fiance is a Canadian citizen.  We had been dating for over a year, and during his current trip here on a B2 we unexpectedly became engaged.  He has browsed some good job opportunities that would start next June/July in the US.  Which method gives the best chance that he will be able to work in June/July (an h1b won't be an option)? We don't mind getting a court marriage whenever needed, in either country.  And he can stay in Canada or the US during processing.

 

We looked into a 485, which is convenient because we could file for the EAD for work purposes.  But despite the fact that he didn't intend on getting engaged when he last flew in, we are worried about the 90 day rule that an immigration lawyer has told us about, and are considering on holding off on getting married until then (about 2 months left).  So, should we hold off for 2 months, then get married, and file a 485 and EAD?  Or is it better for us to not wait and just get married now, then for him to go back to Canada, and file a 130 and do consular processing?  Which would likely be quicker for him to be able to work?  Is the fiance visa or something else a better consideration?

 

Does it matter which country we get married in?  And by any chance do his previous visits to the US count towards the 90 day rule?

 

Thanks!

[geowrian 22,335]

There is no 90 day rule for AOS (I-485). That's a DOS rule...AOS is handled by USCIS.

Or you can marry and do do consular processing for an CR-1 visa if you want. But know that the ETA on that is ~12-16 months, so a June/July date would be very unlikely to be able to have the visa.

A K-1 (fiance) visa is taking ~8-12 months right now + you would then still need to file for AOS + an EAD. The EAD is taking ~4-6 months now, so the June/July date is highly unlikely as well.

 

It doesn't matter where you marry. That said, the first option (AOS) is only valid while you are already in the US and did not intend to stay. You can't go to Canada to marry (or take care of any loose ends) then return to the US with intent to file for AOS.

[MP74 0]

Thanks for the reply.  Few more questions from someone who is not well versed in DOS/USCIS and their roles:

 

Since 90 days is a DOS rule, in which situations does it come into play?  For instance, their line about "A nonimmigrant in B or F status...marrying a United States citizen or lawful permanent resident and taking up residence in the United States" being a willful misrepresentation and violation of nonimmigrant status - if that doesn't stop someone from applying for AOS since USCIS deals with that, then what is the point of the rule?  When could the DOS deal with this information and what could they do in the marriage example?  

 

On their website, USCIS mentions that they don't strictly follow the 90 day rule, but can use it as an analytic tool.  Though it may not have been the case up until now, is it conceivable that using it as a tool gives them freedom to be more aggressive in the future, using it as evidence in future cases?  They also say the burden of proof to establish admissibility is always on the applicant.  

 

This website mentions cases in which the older 30/60 rule was cited by USCIS, and suggests they could use the 90 day rule similarly: Link Two of the cases they mention:

 

Matter of ___, (AAO, Las Vegas, January 31, 2014) [WL 2351678]

Applicant for a 212(i) waiver (seeking LPR status as an IR) had been found inadmissible after stating purpose for applying for a B2 visa was to “visit family” when the actual purpose was to marry his LPR fiancée and reside in the United States with his LPR spouse. Applicant conceded that he failed to provide information, but challenged the “misrepresentation” finding. Applicant argued that the initial decision's citation of the 30/60 day rule was in error, arguing that the rule is “inapplicable to proceedings before USCIS.” The AAO rejected this argument, stating that “[a]lthough the AAO is not bound by the FAM, it finds its analysis in these situations to be persuasive.” Furthermore, it stated that the applicant “presents no legal support to support his assertion that no presumption of misrepresentation may arise in the applicant's circumstances.”

 

Matter of ___, (AAO, Fresno, December 24, 2013) [WL 8124095]

Applicant for a 212(i) waiver (seeking LPR status as an IR) had been found inadmissible for obtaining a B2 visa for the stated purpose of visiting the United States when her true intent was to reside in the United States with her LPR spouse. Applicant had an approved Form I-130 petition at the time of entry, and filed for adjustment of status within two weeks of entry. The decision cites the 30/60 day rule and states that “[a]lthough USCIS is not bound by the [FAM], we have consistent followed the 30/60 day rule.” It further stated that “[m]oreover, the documentation in the record overwhelming[ly] supports a finding of misrepresentation.”

 

 

Do you think waiting a bit longer does make it less likely there will be an issue?  Not because of the 90 day rule, but just due to the USCIS officer's disrection/suspicion level?

 

Also, if we apply for AOS/EAD, and he has to stay here for several months, do time limitations of his current stay based on the B2 come into play?

Edited October 12, 2018 by MP74

[geowrian 22,335]

Intent won't be an issue as the immediate relative of a USC. Don't worry about how long you wait or not..you can AOS fine.

While the I-485 is pending, he is granted an authorized stay while the case is pending. This is not a legal status, but does protect you from deportation just for being in the country.

 

The DOS rule applies to obtaining a visa abroad. That said, they don't have any say in AOS cases, and intent is very unlikely to be an issue for somebody who chooses to exit the US and obtain the visa abroad...the intent would be if they tried to stay.

[MP74 0]

Does the fact that he wasn't an immediate relative when he came in at the time of his intent matter?  And does the immediate relative exception only apply to aos or also the consular route?

 

If I understand correctly, the problem would only arise if he got married within 90 days, left the country, and did consular processing.  So if he goes through the aos route, stays in the us until the gc arrives, then much later leaves for an international vacation, and reenters the us, could there be any repercussions from the dos on reentry because of what happened before..or does the fact that he would have a gc supercede anything?

 

While he wouldn't be traveling outside of the us until the travel doc arrives, should he also refrain from domestic flights just to be safe and prevent any inquiries since he would be using his passport as id?

 

Thanks again for your help.

[geowrian 22,335]

38 minutes ago, MP74 said:

Does the fact that he wasn't an immediate relative when he came in at the time of his intent matter?  And does the immediate relative exception only apply to aos or also the consular route?

Doesn't matter.

It technically applies to AOS since that is handled by USCIS. But DOS shouldn't care as there was obviously not intent to stay on that trip as evidenced by returning home to interview abroad.

 

38 minutes ago, MP74 said:

If I understand correctly, the problem would only arise if he got married within 90 days, left the country, and did consular processing.  So if he goes through the aos route, stays in the us until the gc arrives, then much later leaves for an international vacation, and reenters the us, could there be any repercussions from the dos on reentry because of what happened before..or does the fact that he would have a gc supercede anything?

Per above, DOS does have the rule, but it won't impact him in either route. The only circumstance I can think of where it could matter is a non-immediate relative applying for AOS within 90 days then abandoning or having the AOS case denied, and then interviewing abroad. That's a pretty specific set of circumstances, and even then they aren't likely to pursue anything given past BIA cases.

 

If he applies for AOS, obtains AP, then exits the US then he should be able to re-enter fine. Same for having a green card...no issue returning at all.

NOTE: CBP is part of DHS as well (like USCIS). DOS handles embassies and consulates, not the US border.

 

38 minutes ago, MP74 said:

While he wouldn't be traveling outside of the us until the travel doc arrives, should he also refrain from domestic flights just to be safe and prevent any inquiries since he would be using his passport as id?

Domestic flights are fine. His passport acts as sufficient ID. The I-485's NOA1 + marriage certificate will act as evidence of authorized stay. CBP very rarely is involved in domestic flights, but sometimes they work alongside the TSA, especially near the border.

 

The only possible exception is if the flight goes over/near a foreign country, in the event the flight is diverted (i.e. Hawaii/Alaska possibly?).

Once AP or a GC is obtained, no issue with domestic or international flights.