trinbajan

Just a Q (not sure if anyone's mentioned this), does your J1 have the 2 year home stay requirement?

no it doesn't. I made sure to check and surprisingly no one mentioned this.

I am not one to be judgemental, but how is it you got married last summer and you guys havent filed for a CR-1 yet? Understand one thing, this process is all about proving that your marriage is legitimate. If your interviewer does not feel as though you are really married (and you need to show proof, emails, valetines cards, phone records, pictures etc) they will deny your visa application.

It's a very long story why it wasn't filed as yet. It was supposed to be done as soon as I left and if it was it wouldn't have been an issue but random unexpected emergencies kept coming up and we kept postponing the filing of the papers until we discovered that Canada takes nearly a year to process them then we were just going to not file and I was going to attend school as an international student then I would return to Canada after and we'd file them. Then I found out that that would be difficult given that I'm already married I've visited him and he's visited me in the meantime and that's where this whole kafuffle begins. I'm not even remotely worried about proving the legitimacy of the marriage I have cards and gtalk conversation history and vacation photos and skype call history and even a joint bank account (which was completely accidental but glad we have it now).

I don't see how you feel you are entitled to in state tuition. The whole reason for it is that those living in the state have paid taxes which have gone to the public universities in the state and therefore they qualify for lower rates. As you personally have not paid taxes in the state you are moving too or any state for that matter why should you get a tuition break?

Actually I have paid taxes in the state I am going to school in because I lived there for a while before coming back to Canada to finish my degree. Also I qualify for in state tuition because I am the spouse of someone who pays in state tuition. You really should ask questions before you make statements with no grounds.

Ok so after speaking with several lawyers and international students professionals it seems as though the best course of action would be to file the I-130 and while that processes go for an interview for an F-1 and explain to them that I plan on doing consular processing and I am going for school and will return to do my interview in Montreal and it's at their discretion whether or not they let me in the country so it's kind of a hope you get someone on a good day kind of situation but at least I wouldn't be lying to anyone and everything would be above board. If they deny my F-1 I will just have to contact the school and defer my start date to the following semester or year if possible.

And the best part is as long as I've filed an I-130 even if it hasn't been processed as yet I can qualify for in state tuition since my husband already qualifies for in state tuition.

I have learned that lawyers can be either helpful or hurtful and you need to call at least 5 to figure out who's giving you good advice lol.

This is just my opinion your school DSO is not giving you a very good advice. Your schools international office is not giving you right advice, and if you get caught in any of the immigration issue they are not responsible for it anyways.

Your school is advising you that you don’t tell consulate your intention of migrating and then enter the country and file for AOS.

Your second post is confusing – what was the second lawyer saying just go in May but on which visa and how? So how do you go in May?

One thing I would advice is don’t go on the historic accounts of ppl immigration regulation and rules change all the time.

(I am assuming 2nd lawyer is advising your to enter on VWP and then file for AOS) whenever he did that it might have been ok, but day by day immigration is closing loop holes.

Just make sure you don’t end up in bad situation coz of your haste to move to US.

I don't need a visa to enter the US. Canadians can just enter and the lawyer said I should just enter the US and file for the AOS, seems kind of sketchy to me but he said it is legal for Canadians. I e-mailed the USCIS e-mail that was specifically for Canadians and I'm hoping they can shed some light on what I should do to be able to attend school in August.

I went to have my J1 interview at the consulate in Toronto because I didn't want to leave this matter in the hands of someone random at the border (some of them aren't really prepared to handle more complex issues)...on USCIS website it reads: "Canadian citizens with ineligibilities also have the option of applying for a visa and a waiver at the nearest U.S. consulate if it is more convenient for them." I didn't have any ineligibility but I didn't want to find out something to the contrary at the border from an angry immigration officer

I just spoke to another lawyer who told me I should just go down there in May and not apply for the F-1 and file for an adjustment of status when I go down there because my F-1 would most likely be declined. He was a former Canadian who filed for permanent residency in the US.

When you apply for F-1 student visa (which is non-immigrant visa) you will have an interview at the consulate and during this interview it will eventually come up that you have a US citizen spouse who lives in the US...and that for a consular officer reads as "immigrantion intent" you can't refute.

It still doesn't mean that you automatically are not eligible for F-1 visa but they definitely won't give it to you if they suspect that you will do AOS right after you enter the US. However, if you start consular processing now, meaning your husband will file a petition I-130 in the US and it gets accepted, and you will have that process running alongside your applying for a student visa later on, the consular officer might decide that you are trustworthy enough to complete consular processing and show up for an interview in Montreal. Doing it this way is not unreasonable at all because getting I-130 accepted and then starting and completing consular processing in Canada can easily take up to 1 year (Montreal is backlogged)...but if your school is starting in August there is no way you can make it if you are waiting for your green card (unless you will try to expedite the process, and as it seems, unless someone's life at stake, requests are denied).

I had an immigrant petition I-130 filed by my US citizen parent and already accepted by USCIS (which is a clear sign of immigrant intent) and as I was waiting for the consular processing to kick in, I unexpectedly received an offer from a college in the US to come and do some research with them. So I applied for J-1 and during the interview my consular officer just made sure I want to complete my consular processing in Canada and that I understand what the consequences of violating the law could be. Now, I am not saying that is what your interview will look like, just that it is possible to receive a non-immigrant visa while you have an immigrant petition pending.

I spoke to the international students office at the school I applied to and she said I shouldn't have an issue entering the country on an F-1 from Canada even if I am married to an American because she has other people who have done it. Canadians don't go for consular interviews for their F-1 visas we just show up at the boarder or immigration with the papers and they stamp our passport.

So if I get my husband to file the I-130 now while my application for grad school is still in review and the F-1 hasn't been yet issued and I get accepted to the school and enter on the F-1 and am honest with them and tell them I plan on returning to do my consular interview I wouldn't be entering under false pretenses and shouldn't have a problem. Then I can show the school I am married to a US citizen and get in state tuition while my application is being processed and I won't have to not attend school on time.

I have a phone consultation with a lawyer tomorrow and I'll see what he or she says as well. The first one told me I should enter the country and AOS but I don't think that was very good advice because I don't want to do anything illegal.

I got advice from an attorney. The advice follows:

There is a difference between preconceived intent to immigrate and fraud/misrepresentation.

If you misrepresent a fact to the immigration agency, then there will be negative consequences. Anything that is said or written to an immigration official will be known by all subsequent immigration officials.

Preconceived intent refers to entering the United States with the intent of gaining permanent residency immediately (without leaving the country). Future intent to immigrate is not preconceived intent.

Generally, preconceived intent is a problem. However, since your wife is an immediate relative, there is case law which states that immediate relatives should not be denied adjustment of status based solely on preconceived intent.

So, this means, if she obtains the f-1 status (making sure to indicate that she was married to a U.S. citizen), and then enters the United States on the F-1, you two will face a choice. You can either file the I-130 by itself (this would require her to travel back to Canada for the interview), or she can file the I-130 and I-485 together (commonly referred to as Adjustment of Status). If she does that, you two will have an interview in the United States at the immigration office closest to your residence (there is one in New York City). By filing for adjustment of status, she will also be able to obtain work authorization about 90 days later.

In deciding whether to file the I-130 alone, or the I-130 with the I-485, it comes down to the question of whether you made any indication that stated she planned to return to Canada. For example, if at the border (or the consulate) the official asks if she plans to return to Canada, she will either have to say yes or no. If she says yes, and then she files the I-130/I-485, she could be accused of making a misrepresentation to an immigration official. If she says yes, and then files the I-130, there will be no misrepresentation or preconceived intent because she is leaving the country before she is granted permanent residency.

She should always truthfully answer a question from an immigration officer (or on an immigration form). She should also make sure that she does not hide her marriage to a US citizen.

If the topic of returning to Canada never comes up, then she made no misrepresentation, and can file the I-130/I-485 because there was no misrepresentation. Case law indicates that preconceived intent should not the sole reason for the denial of an adjustment of status.

Filing the I-130 would be the safest approach. However, it should be possible to Adjust Status as long as you two have made no misrepresentations.

Wow I'm so glad I found this post because it is exactly my issue... almost.

I am in Canada attending school and my husband is in the US and I applied for a grad program there and we also wanted to file the I-130 so I can get in state tuition. I called a lawyer and he was rude and put me on hold for 4 minutes before I finally hung up but he made it seem like I was an idiot for not just entering the country and filing for AOS.

If I read this correctly as long as I inform the immigration people in the airport that I have a I-130 that I am filing and I intend on returning to Canada to complete the consular processing and immigration interview while I attend school on the F-1 I would not be misrepresenting myself and therefore not committing a crime.

OK so AOS bad idea.

What if we file the I-130 and file for a K-3 visa so I can enter the country while it pends. I think I will still have to defer my entry to grad school but I should be allowed in the country. I swear the Canadian immigration website is so much less complicated.

I think the reason people are challenging your plans is because it reads as though you're trying to have your cake and eat it. Your situation is not complicated per se, but it could be considered ambiguous when it comes to immigration regulations.

Everything you've done so far seems to be absolutely legal and above board.

There is no reason why you cannot try and get an F-1 visa, and you are correct that people do enter on F1 visas and AOS from that visa. However, they are not usually married to a USC at the time of applying for said F-1. This means when they applied for the F1, they were honestly able to say they did not intend to marry an USC, and that the primary/ sole purpose of obtaining a visa was for studying. You are already married and are planning on AOSing, regardless. When considering a visa application, immigration authorities want to know what the primary purpose of the visa is. Because you're already married, the likelihood is they will assume you are applying for an F-1 as a way of circumventing the traditional route for procuring residence as the immediate relative of a US citizen. This is why people here are suggesting it would be denied.

You cannot simply enter the US with the intent of AOSing and then carrying on your presence in the US on the basis of your F1 visa.

I've just been through the 'in-state tuition rate through your spouse' process in Arizona. You have to meet more than just being married to an in-state resident to qualify. I needed to demonstrate that I entered on an appropriate visa and that it was still valid. In the case of my K-1 visa, this meant my I-94 was still within the 90 days. If that period had expired, I would have needed to provide evidence of either my EAD or my GC. I had to sign a declaration that I was a legal resident, in possession of a valid visa OR had to sign a section that said I did not wish to be considered for either Financial Aid or In-state tuition.

If you choose (as you should) to ensure that you are immigrating in a legal manner, have your husband submit a CR-1 petition for you. The upside is that you have your GC within a short period of time after entering and do not need to AOS. The downside is that you have to process it through the US Embassy in Montreal (I think it is for CR-1s, that needs confirming).

You shouldn't be applying for an F1 visa with the intent of AOSing because you could be misrepresenting yourself when you apply. This would turn around and bite you very hard indeed.

So in short, the only way of qualifying for in-state tuition through your husband's status is to file a CR-1 petition. Entering on a visitor or student visa with the intent of adjusting will mean potentially obtaining said visitor/ student visa potentially through misrepresentation which carries very severe penalties.

You cannot go on what is OK according to the college as far as your marital status, because they are neither very knowledgeable of the immigration process, nor liable for the consequences of doing it the wrong way.

Wow that was really helpful. Ok if I file for the CR-1 what are the chances of it going through before I need to start school in August?

Although you had no intention on getting married or staying last time, if you cross now without the appropriate visa and the intent of adjusting your status within the US, it is illegal. Weather or not you want to stay for the long run, you still had immigrant intent when you crossed.

There is also the issue of the J-1 itself. If your J-1 is approved, even if it is mailed to you in the US, you need to enter the US with the visa and have it processed. There needs to be a record that you actually used the visa, otherwise you will have it, but your status would never have been based on it. It would never have been "used" for lack of a better term.

At this point, unless you are willing to abandon the J-1 and wait a year to attend school, I don't see any logical or legal way for you to get the instate tuition.

I don't have a J-1 anymore that was last year. The school applied for an F-1 student visa. I discovered that if I'm in the country as a visitor and let them know I intend on attending school on an F-1 visa I can enter and file another form to change status to F-1 while in the country because the F-1 isn't valid until 30 days before you start your study period. I found this on the US department of state website.

I think I've gathered from the responses that I should not file for AOS because it will seem like I entered the country with the intent to immigrate despite the fact I am going to school.

You are correct in this, your husband must be in Canada inorder for you to do DCF. Am I correct in saying that your USC husband resides in the US. IF so this route is not avavilable to you.

Yes he's in the US and I'm in Canada. I think I need to find an immigration lawyer This is ridiculously complicated.

I didn't even know that was possible.

So I can file for consular processing and go to school in the states while it's being processed? I was under the impression I wouldn't be able to enter the country if I filed for consular processing.

If I read your post right, you want to go down to the US as a visitor while your J-1 is processing and file for AOS, is that right? Entering the US as a visitor with the intention of staying and adjusting your status is illegal. If questioned at an AOS interview, you may need to prove that you did not have the intent on staying when you crossed. With a USC husband and pending J-1 visa, it would be hard to prove your intention was not to live in the US all along.

Also consider that if you file AOS in the US, you are not allowed to leave the country while the application is being processed without either a Green Card, or an AP document. The AP can take 3 months or more to be approved and issued. If going back to Canada in that time frame (eg. to attend school, tend to pending issues with the J-1), you would not be able to re-enter the US, and your application would be considered abandoned.

I was on a J-1 last summer when I got married and returned to Canada to finish school. I had no intention of staying and getting married was not planned either. I applied to graduate school now and the school applied for a F-1 visa for me and I am going down there without the intent of staying and I don't plan on leaving because I'll be in school for or 15 months.

The only problem arises because I'm just trying to avoid out of state tuition and the only way to get in state tuition through my husband is if I file the AOS paperwork. I'm not in the country now and if I went the K-3 route I wouldn't be able to attend school because it wouldn't be processed in time and my primary purpose is to attend school.

No one is saying you can't go to a school in the US, what everyone is trying to say to you is that by being married and register for school in the US this gives the impression at the time of AOS, that you knew before you entered the US, that you were going to enter on one type of visa and then adjust your status to LPR. This defines intent....

So I should just not file for the adjustment of status and stay on the F-1 visa for 15 months? Then after I finish school just return to Canada?

Ok maybe I wasn't very clear. School starts in August and I wanted to go down in May and get settled and have them send my F-1 to my US address. I don't see why I shouldn't be allowed to attend school in the US and I spoke to the school and they know I am married to a US citizen and it seemed fine. But I discovered I can file for Adjustment of status when I'm down there and then I'd be able to pay in state tuition. I just need to know if this is legal. My husband spoke to the residency status people at the school and they said it's done all the time. I don't really have any intention of staying in the US permanently because we haven't decided between the US or Canada as yet I just wanted to know if by filing for AOS I would be barred from entering the country.

I can enter the US as a visitor so I imagine I shouldn't have a problem entering as a student, I've been to the US several times since getting married.

I don't see how they will issue you a F-1 if you are married to a USC. If you are being truthful on the student visa application, you will probably not be issued an F-1. Your USC husband should have started the process of applying for an approval for a CR1, if you wish to come to the US to live. I am sure the F-1 application ask for your martial status,you need to be truthful regarding this, because if you lied it will come back to haunt you during AOS.

I've been truthful on everything I've filed. I don't see why being married to an American citizen should prevent me from being able to go to school down there. I don't even know if I'm going to stay after I finish my degree or move back to Canada and bring him with me. I intended on doing a graduate degree in the US before I even met him, he only affected my choice of school.

If you want to abuse the system and lie to an officer - yes you can get a F1 visa.

If you do not want to lie to officer then best solution is u will have to wait like everyone in like and get your AOS when your time comes. Coz F1 is a non-immigrant visa which means you have no intention of migrating to US - which will not be true in your case.

But I intend on going to school in the states regardless. I just need to know if once I'm down there I can file for AOS or if I have to wait until I finish my degree, return to Canada and file for consular processing.

Ok I'm so confused about all of this. I got married last summer kind of as a spur of the moment while I was visiting my boyfriend in the US on a J-1 visa then I returned to Canada about a week or two later to finish my degree. Now I'm applying to school down there and they're filing for a F-1 visa for me but I wanted to enter the US early and then change my status to a green card holder in order to avoid out of state tuition and be able to work.

I know entering the US as a visitor with the intention of staying is illegal but I would be entering with the intention of going to school but also filing for an adjustment of status.

What is my best course of action here so that I don't get permanently barred from the US?

Not sure if I'm posting in the right place or not but I am already married to an American citizen and moved back to Canada to finish school. I was going to go through consular processing but I applied for a masters program in the US and my paperwork won't be complete in time for me to start classes so my plan was to enter the US as a visitor while my F-1 visa is pending with the school and file for adjustment of status to become a permanent resident while I am there.

My question is: will I be allowed into the country and will they hold it against me that I entered as a visitor and then filed for adjustment of status?