Other Immigration Law Canadian wants to stay with American in California... Please help!!

[Juliette2u]

Hi there,

Approximately 4 1/2 months ago I came with my mother across the border from Canada to the United States for a temporary visit. My mom and I planned to visit with my American boyfriend's family in Oregon for 2 or 3 weeks but shortly after arriving, my mom became ill with the flu and returned home to Canada after a few days. I decided to continue my visit in the States and drove with my boyfriend down to California where his job is. We have been together here ever since.

We desperately want to stay together, but I am under the impression that I am only allowed to stay in the States for a total of six months. Is this true? When I crossed the border, I was not given any documentation nor a return date. I did not have a Canadian passport at that time, but have acquired one since then. We have been a couple for approximately one year now and have been contemplating marriage for some future date. Now we are very concerned that I may have to go back to Canada and are seriously considering getting married sooner if that means we can stay together physically.

My boyfriend has a good job here and has a real possibility of acquiring an even better position within the same company in the near future. Right now we are just able to pay our bills and are also maintaining my place of residence in Canada, which, in total, is more than we can afford. I should also note that two months prior to my coming to the States, my boyfriend stayed with me in Canada for about a year, during which time he made periodic trips back to the States. We know that we want to stay together and since his capacity for earning a living is greater than mine, we would much prefer to live here as a couple in California.

This seems like a very confusing and overwhelming situation to be in. Therefore, we would be exceptionally grateful to receive any advice on how it may be possible for us to stay together in California. We are both decent people in love and are frustrated by the limitations that are facing us simply because we are from different countries. Thank you very much for any time and energy you may devote to helping us with our dilemma!

Juliette

 

[NYClex]

The law is pretty clear about this. You have been admitted as a tourist under especially lenient procedures that are only available to Canadians. But nevertheless there are only a few ways for you to legally stay in this country.

So far you are here as a tourist. The maximum you are allowed to stay as a tourist without an extension is 6 months. You are supposed to have legitimate touristic interest, which living together with a boyfriend is not.

Here a general overview. Details in your case might change things:

As a Canadian you can usually pass the borders without being issued a Form I-94 or I-94W on which the maximum permitted stay would be recorded. Therefore it is often possible to stay longer or to make repeated trips across the border which lead to a longer stay in the US than would actually be allowed.

The problem is, while you might get away with this for a while you never know when the CBP will notice. If you are caught in an overstay or when there is doubt about your tourist intentions it could mean that you would be refused entry into the US and that you might be barred from re-entering for years.

Also when you apply for a legal permanent residency (Green Card), or later for citizenship you must truthfully record all stays and entry and exit dates on your application. If you lie on the application it is grounds for deportation and future inadmissibility. It would be not very smart to destroy one's chances for a legal residency by doing this.

Therefore, what are your legal ways to stay in the US: Basically three different scenarios:

-You marry your American citizen boyfriend
-You qualify as a professional and do business in the US under NAFTA-Visa
-You find a job, get a labor certification and find an employer who will sponsor you an employment-based Green Card.

The last option is the most difficult one.

If you marry your boyfriend you will be entitled to legal permanent residency if you fulfill certain conditions. You can apply for a visa to enter the US up to 90 days before the wedding, then would have to apply for an adjustment of status. Your then husband would have to petition for you to become a legal resident. You can stay in the country while these applications are processed. You also can apply for a work permit and legally work here. Again, this only works if you marry. There are no possibilities for people who are merely engaged to legally live in the U.S. unless they qualify by one of the other two options I mentioned above.

It is important that your then husband can show that he is able to support your by proving a certain minimum income. In case he does not have that, however, other people can sponsor you, too, if they are citizens.

To sum it up in short:

If you want to stay legally you have to:

-marry
-the husband has to petition for legal residency
-you have to apply for adjustment of status

This must be done while you are legally in the States! If you overstay and are out of status you cannot apply for adjustment of status and would have to leave the country. You also might get more problems.

The alternative is to apply from outside the States, either for a fiancee visa which allows you a maximum stay of 90 days in which you are supposed to marry and then apply for adjustment of status, or you stay outside the country until the Green Card is approved, which may take up to two years.

All this only works if your future husband is an American citizen. If he is an alien, then different regulations apply.

 

[NYClex]

actually, the maximum time you might be admitted as a tourist is 1 year, not 6 months, but 6 months is the "usual" time of admission. In case of a Canadian who was not issued an I-94 it is a little tricky to establish, since no border inspection officer actually determined the time.

 

[Juliette2u]

Canadian still wanting to stay with American...

Hello again,

First off, I would just like to express my appreciation for the information you have provided. I am still unclear about some things though:

Specifically, these are the statements which I don't fully understand.

(1) "Here a general overview. Details in your case might change things:"

Do you mean my details may change things for the worse? Is there any chance that if we marry, I will be sent back to Canada for awhile anyway?


(2) "You can apply for a visa to enter the US up to 90 days before the wedding, then would have to apply for an adjustment of status."

When you say 'visa', are you referring to the I-102 Form?... and does up to 90 days before the wedding mean "during the 90 days prior to the wedding"? Please excuse me if I am a little slow at getting this, I just want to be thorough in the hopes of cutting down on any possible mistakes and I certainly want whatever I do, to be done legally.

From doing some research, I have read about an I-102 Form that I can submit to get the date of my entry into the U.S. officially established and which can be submitted with an application for adjustment of status. Do I need to submit the I-102 Form if I do marry my boyfriend before the six months has ended? If I do this, might they assign me an immediate departure date and send me home right away?

Also when you say that we have to marry and submit the required forms that you mentioned while I am here legally, does that mean that the forms need to be "post-marked" before the end of the six months or do the forms need to be already received by the agencies they are sent to by that time? We are thinking we should try to get things done withing the six month time frame instead of trying for the one year legal stay, just to be safe.

I really did come to the states thinking I would be here temporarily visiting, hence I still have my home, etc. in Canada. My boyfriend and I have only very recently considered the idea of an immediate and quick marriage. Doing that, in addition to filling out and filing the forms seems like a lot to accomplish in five weeks. In your opinion is it really possible for us to successfully do all that is required of us in that period of time?

If so, are the requirements really only (a) the petition for legal residency filed by my partner and (b) the adjustment of status which I am to file? Are there more forms we should be aware of?


(3) "If you marry your boyfriend you will be entitled to legal permanent residency if you fulfill certain conditions."

I am wondering if the certain conditions you're referring to are simply the things you have already mentioned or is this a separate important topic in itself?

Thank you again for sharing your valuable knowledge!

Juliette

P.S.: I have thought of one more question...
Are we required to be married within California for all of this to work? Would the conditions allowing us to stay together in California be different if we were to marry in another state, such as Oregon?

 

[NYClex]

I am sorry if I was confusing.

I will try to answer your questions:

1) The biggest problem to getting all the paperwork done in the States is the fact that you seem not to have a I-94 card showing that you entered the country legally. It could well be that the USCIS will not accept your paperwork without it, meaning that you would have to leave the country and re-enter either with a so called "fiancee visa" (that is the one which gives you 90 days to marry) or any other legal visa.

2) I'll try again:

There are basically three different ways how you can obtain a Green Card that will give you the right to permanently live in the U.S.:

a) You marry somewhere (it does not matter at all where you marry as long as the marriage is considered valid under US law, that means any US state, Canada, and probably Mexico, too, though with Mexico I would check first). Then you stay OUTSIDE the US and your husband applies for a Green Card for you. You might have to stay outside the US for over a year until the Green Card is issued.

Most people don't want to wait that long. Therefore there are two other ways:

b) You already are LEGALLY in the country and CAN PROVE that (by showing an I-94 Form): After you married your husband applies for the Green Card for you (this is called filing a petition for alien relative) and at the same time you apply for "Adjustment of Status."

or

c) You are outside the US or leave the US for a moment and obtain one of two temporary visa:

-either the K-1 Visa which you can obtain BEFORE you are married to legally enter the country and then marry within 90 days. If you are not married within 90 days the visa will expire and you will have to leave the country again.

or

-the K-3 Visa if you already HAVE married and now want to enter the country to wait IN THE US until your Green Card is issued.

In both cases of K-Visa you first apply for the K-Visa, then, once in the States and married, your husband applies for the Green Card and you for Adjustment of Status.


The question here really is if the USCIS will accept your paperwork with the I-102 form or not. I know that some offices simply refuse to accept applications for adjustment of status without the I-94. If you cannot file the I-102 with the application you might lose a lot of time, since it can take months until you get the I-94. It might be just a lot faster to simply leave the US and come back with a I-94 or with a K-1 Visa. You should call the USCIS and find out how they handle that at your local office.


3) Yes, it is only those two applications you have to file: the petition and the application for adjustment of status. But both consist of a whole lot of forms. Some of the conditions I mentioned are for example that your husband can prove that he can support you, the so called "affidavit of support." He needs to show that he has a certain income and that he will have that for at least the next three years. He needs to prove an income of 125% of the federal poverty guideline for the size of the future household. If he cannot prove that he would need an additional sponsor.

If you are unsure about this whole process I would advise you to go to an immigration attorney and let him handle this. It will cost you some fees, but one single mistake on an application can cause you delays of months and years, so I think it is worth it.

 

[Juliette2u]

Hi again,

Thank you for your last reply. I thought it had made things quite a bit clearer, but since then, my fiance (we are now engaged) and I went to see an immigration lawyer and he told us some things which were contradictory to what you had advised. Now I am still confused and unsure as to what to do and feel like every day that goes by is like the clicking away of a time-bomb. Please help if you can...

The lawyer that we went to said that being admitted under visitor status and without having been issued an I-94, was probably considered unlawfully staying here in the U.S. after 72 hours. You have said that "The maximum you are allowed to stay as a tourist without an extension is 6 months". The thought of being here unlawfully really doesn't sit well with me, and up until speaking to this other lawyer, I thought I wasn't being unlawful. Any further clarification? Right now I am thinking I haven't done anything terribly wrong up to this point.

I have also read that if I have stayed in the U.S. for more than 180 days beyond a period of lawful stay, that I can be banned from re-entering the U.S. for a minimum of 3 years. An important question I have is: What is the time period in which the 180 days is calculated?

In October of 2003 I came to the U.S. as a tourist for a couple of weeks during which time my 'now fiance' and I drove down along the coast of California, went to Disneyland, drove back up to Oregon to visit with his family, and then returned back to Canada by the end of the two weeks time we said we would be in the states. For that trip, we were inspected properly, but as far as I know, we were not issued an I-94. My fiance had already been living in Canada at that time for a month and a half and that's why we were both crossing the border into the States. So my question is: Does that trip count towards the 180 days that could possibly be used to ban me from the States? I would think not since as far as I know, I was there lawfully for the full two weeks.

An extemely big concern of mine is not being able to see my 72 year old (not in the best health) mother who lives in BC for up to two years while I may be waiting for the issuance of a green card. The other immigration lawyer said that if we get married and get all the paperwork and applications started that I would not be able to go back to Canada (even for emergencies) and then re-enter the U.S., and that my applications for adjustment of status and permanent residency would be considered null and void upon leaving the States. Is there any way around this? Does the K-3 visa, once obtained and I have entered the states, allow me to go back to Canada for visits while the permanent residency application is in process?

Bottom line: It doesn't really matter to my fiance and I whether we are married here in California or in British Columbia or when exactly we are married. Preferably, for me, I would like to not feel rushed as it is all new to me and I would like it to be as special as possible. The main things are (1) that I am able to legally live with my "to be husband" in the States at some point in the next couple of years, (2) that I do not have too long of a period where I am not allowed to see my mom in Canada, and (3) that I am not banned from re-entering the States, ever. Do you see any way this is possible?

Right now I am thinking I should maybe leave ASAP back to Canada and then apply for the K-3 Visa once we are married. Oooh, one more question: I read that once accepted for a K-3 Visa, an immigrant visa number is issued immediately? Does that mean I can attempt to re-enter the states as soon as the K-3 visa is issued?... and how long do you estimate it will take to have a K-3 Visa aprroved and issued? If I am applying for it in Canada do I call a U.S. consulate there to ask these kinds of questions regarding length of times? Is there much of a chance that I would be denied access to the States with a K-3 Visa?

Thank you once again for you help. I'm sorry if this seems somewhat a mess... it is probably indicative of what is happening to the inside of my brains these days trying to figure everything out.

Toni

 

[Juliette2u]

Feeling very time-crunched...

I have two more questions which are very important to me to have answered:

(A) If I remain in the States and have fallen out of legal status before my green card application is filed at the appropriate BCIS office, will the 3 or 10 year ban against my re-entering the U.S. still be in effect once my green card has been approved and issued?

(B) If I will be completely free from the ban because my green card is approved, at what point will I be able to re-enter the States?

- when I am approved for the green card at the interview if that should happen?

- when later receiving temporary approval at a BCIS office if I am not approved immediately at the interview?

- several months after, when the official green card is received by me in the mail?


If you could at the very least answer these two questions and what I have asked regarding the K-3 Visa, it would be such a big, big help!

Thank you so much,
Toni (AKA Juliette)

 

[NYClex]

LOL always listen to your lawyer. He usually is right. The problem is, you are here without documentation of being here. This is not your fault, because the American authorities just do this with Canadian tourists. So if you could establish that you are here within the legal frame, you would not be here illegally! The problem here is, how can you establish this? The USCIS could also assume you have been here already for 2 years, and that would be illegal.

The point is: it is better and easier to avoid this mess by simply leaving the US and returning with documentation. That can be either a tourist I-94, or a K-1 or a K-3 visa. Since usually nobody documents tourists leaving across the Canadian land border yet, your whole stay here would be undocumented and therefore you would not that easily get into this trouble. However, you will be asked on the visa applications about former stays in the US and should answer truthfully. If you have been here within the legal time frame, that is no problem.

Once a K-1 or K-3 visa is issued and stamped into your passport you can immediately enter the U.S. Depending on where you apply for it it will take a couple of weeks to get it.

And yes, you can leave the country during the time you will be waiting for the Green Card. You need a so called "Advance Parole" for it, which needs to be applied for, so you probably cannot travel on a moment's notice, but you definitely can travel. An Advance Parole can be applied for once your husband has petitioned for the Green Card for you and you have filed for AOS.

But when in doubt, always check again with your lawyer. He has all the details of your case, I do not. This here can only be an overview over the pretty complicated matter of immigration law.

 

[Juliette2u]

Hello, me again...

Thanks for your response again.

I am thinking if we can somehow actually get married and have the proper documents and forms filed with the BCIS, that we are going to shoot for that before I have been here for six months. I keep changing my mind...

As for proving my length of stay here,... I do have some things which I would think would be proof enough, but am wondering what you think:

(1) I had to renew my driver's licence shortly before leaving home, so it shows an issue date of Aug 24th, 2004, my address there, and obviously my picture.

(2) I also applied for a passport shortly before leaving Canada which I now have with me since I had my mom mail it down to me here in California. It shows an issue date of Aug 27th, 2004 and also obviously has my picture.

(3) Another thought is that my mom has our ferry receipt from when her and I crossed the border via the Black Ball Ferry which goes from Victoria, BC to Port Angeles, WA. It is dated Sep 1, 2004 and shows that our fare was paid for with her Visa. It does not show our individual fares but shows a total for both our fares plus the tax. My mom suggested she could have a document notarized saying that her and I crossed on the ferry together into the States and that that is the receipt that was issued. She could also have statements notarized regarding our intention to visit as tourists, how she became ill with the flu the second day we were in the States (my fiance's whole family starting getting sick while we were there), how she decided she would go home once she felt well enough to travel, and how we decided I would continue my visit away from all the sick people and so came to visit with my then boyfriend in California.

Do you think this would be adequate to convince the USCIS of my actual arrival date in the States and my initial visitor intentions in coming here?

I must admit that I am a bit scared about leaving the U.S. and then possibly have the USCIS accuse me of ill intentions on why I entered last September and also say that my stay was unlawful. I am afraid they could deny me access even with a K-3 visa. Maybe I have been reading too many horror immigration stories?!

Do I get a special deal of being able to stay here legally, but undocumented, for 6 months simply because I am from Canada? It seems that people from Mexico, etc. are not entitled to any undocumented time really.

Toni

 

[NYClex]

Yes, Canadians are treated with preference. All other foreigners need to either have a visa or at least go through an inspection process where they will be given an I-94 and their entry will be recorded (and soon their exit, too).

I still think it is the easiest way to leave the country and get those papers in order. You probably will not be able to apply for the Green Card without producing an I-94. It may be that they let you apply for one here, but as I said, it would be probably easier to do this from Canada.

Once you have the visa you very likely will also be admitted. If there is any problem because of the overstay you will find out before, because then you would not even get a visa. But I think it is pretty unlikely. But you might discuss this with your attorney.

I think you have good evidence to establish that you have been out of the country at some point in time, though you never know what the USCIS thinks is necessary.