Canadian Married an American, NOW WHAT?

dualmami
New Member



Joined: 29 Nov 2007
Posts: 2

Posted: Thu Nov 29, 2007 8:04 pm

 

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Just wondering if there is anyone out there who may be in the same situation as I am, or may have some useful information for me. like i said I'm a Canadian who recently married. I lived in Windsor, ON and first met my husband in Detroit, MI in April of 04. We just got married in KY, USA because that's where my husband lives. We have a son together who was born in Canada.I want to know if its possible for me to stay in the u.s. while the paperwork is being processed And is there anything I can do to legally work while waiting on the paperwork.

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Reba
Moderator


Canuck in NC

Joined: 16 Jul 2004
Posts: 1449
Location: North Carolina

Posted: Fri Nov 30, 2007 4:07 am

 

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We have a USA forum here with lots of immigration information. But I'll start here.

When did you enter the US and what did you tell the border guards when you got here? Did you intend to get married during this trip, or was it a spur of the moment "hey, we're not doing anything today lets go to city hall and get married" kind of thing? Did you have a job and home and bills to pay back in Canada and you just abandoned them, or did you quit all that before you left? These types of things will determine your intent upon entry, and may or may not affect an immigrant application.

When your son was born, did you apply for a US birth certificate and passport for him at the US consulate to register his birth abroad?

If you *do* stay and apply for adjustment of status it'll be a few months before you'll be legally able to work. You also won't even be able to get any State ID (like driver's license etc) I don't think until you get your green card (I believe Kentucky is one of those weird states that you have to have permanent legal status before you can get a license.)

Also, go have a look at a website called wwww.visajourney.com It's a message board there specifically for marriage based immigration to the US. There's lots of info there and people who've bee thru it all to answer your questions.
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dualmami
New Member



Joined: 29 Nov 2007
Posts: 2

Posted: Sat Dec 01, 2007 7:18 pm

 

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Reba thanks so much for the info. and no i didn't exactly plan on getting married. it was sort of a last min decision. I will email you with details.

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Christopher G. Rizzo, Esq
CanuckAbroad VIP



Joined: 17 Oct 2007
Posts: 284
Location: Red Bank, NJ USA

Posted: Sun Feb 10, 2008 7:37 am

 

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Filing for adjustment after entry as a visitor and marrying in the U.S. is a good way to get your adjustment application denied based on a misrepresentation/fraud. CIS applies a 30/60 day rule to visitor entries. So if the adjustment was filed within 30 days of the entry, CIS can presume fraudulent intent. (Meaning you implicitly or explicitly represented nonimmigrant intent at the border but really had immigrant intent) If its between 30 and 60 days the presumption is eliminated, but CIS can still examine your intent.
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Christopher G. Rizzo, Esq
Special Counsel
Law Offices of David T. Ferrara, LLC
www.naftalawfirm.com
P: (732) 784-2877
Email: Crizzo@naftalawfirm.com

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Reba
Moderator


Canuck in NC

Joined: 16 Jul 2004
Posts: 1449
Location: North Carolina

Posted: Mon Feb 11, 2008 4:03 am

 

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Christopher, I have read (on other forums) from currently employed CBP and USCIS officials that that 30/60 "rule" is a myth.

The burden of proof is on the applicant yes, but they don't look at hte number of days, rather what had the applicant done in their home country before they arrived in the US for their "visit".

IF the applicant had quit his/her job, sold their house/broke their lease, and packed up all their belongings, then obviously there was intent. If however, the applicant still had a job, a permanent abode and all their worldly goods were still in their home country when they got married, then it is unlikely the marriage and decision to stay was pre-meditated.
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Christopher G. Rizzo, Esq
CanuckAbroad VIP



Joined: 17 Oct 2007
Posts: 284
Location: Red Bank, NJ USA

Posted: Mon Feb 11, 2008 6:51 pm

 

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Its not a myth, its in the FAM (Foreign Affairs Manual) and its used often: See

9 FAM 40.63 N4.7 Applying the 30/60 Day Rule
(TL:VISA-342; 01-08-2002)
a. In determining whether a misrepresentation has been made, some of the
most difficult questions arise from cases involving aliens in the United
States who conduct themselves in a manner inconsistent with
representations they made to the consular officers concerning their
intentions at the time of visa application. Such cases occur most
frequently with respect to aliens who, after having obtained visas as
nonimmigrants, either:
(1) Apply for adjustment of status to permanent resident; or
(2) Fail to maintain their nonimmigrant status (for example, by
engaging in employment).
b. To address this problem, the Department developed the 30/60-day rule.
This rule is intended to facilitate adjudication of these types of cases
consistent with the statutory mandates.
c. Aliens who apply for adjustment of status pursuant to the INA are within
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 40.63 Notes Page 6 of 21
the jurisdiction of the Immigration and Naturalization Service unless the
application is abandoned upon the departure of the alien from the United
States. Upon receipt of a notice of application for adjustment of status
Form G-325A, Biographic Information, therefore, it would not be
appropriate for a consular officer to seek the Department's concurrence in
a finding of ineligibility since such a finding would not be binding upon the
INS. Instead, the post should bring available derogatory information to
the attention of the appropriate INS office by a VISAS DECEMBER cable.
[See 9 FAM 40.63 PN2.]
d. With respect to the second category referred to above, the fact that an
alien's subsequent actions are other than as stated at the time of visa
application or entry does not necessarily prove that the alien's intentions
were misrepresented at the time of application or entry. As to those who
fail to maintain status, the consular officer should also recognize that the
precise circumstances under which the change in activities or the
overstay arose have an important bearing on whether a knowing and
willful misrepresentation was made. The existence of a misrepresentation
must therefore be clearly and factually established by direct or
circumstantial evidence sufficient to meet the "reason to believe”
standard. Although indeed more flexible than the judicial "beyond
reasonable doubt” standard demanded for a conviction in court, a "reason
to believe” standard requires that a probability exists, supported by
evidence which goes beyond mere suspicion.
9 FAM 40.63 N4.7-1 Applying 30/60 Day Rule When Alien
Violates Status
(TL:VISA-313; 08-27-2001)
a. The consular officer should apply the 30/60-day rule if an alien states on
his or her application for a B-2 visa, or informs an immigration officer at
the port of entry, that the purpose of his or her visit is tourism, or to visit
relatives, etc., and then violates such status by:
(1) Actively seeking unauthorized employment and, subsequently,
becomes engaged in such employment;
(2) Enrolling in a program of academic study without the benefit of the
appropriate change of status;
(3) Marrying and takes up permanent residence, or
(4) Undertakes any other activity for which a change of status or an
adjustment of status would be required, without the benefit of such
a change or adjustment.
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 40.63 Notes Page 7 of 21
9 FAM 40.63 N4.7-3 After 30 days but Within 60
(TL:VISA-313; 08-27-2001)
If an alien initiates such violation of status more than 30 days but less than
60 days after entry into the United States, no presumption of
misrepresentation arises. However, if the facts in the case give the consular
officer reasonable belief that the alien misrepresented his or her intent, then
the consular officer must give the alien the opportunity to present
countervailing evidence. If the officer does not find such evidence to be
persuasive, then the consular officer must submit a comprehensive report to
the Department (CA/VO/L/A) for the rendering of an advisory opinion.
9 FAM 40.63 N4.7-4 After 60 Days
(TL:VISA-313; 08-27-2001)
When violative conduct occurs more than 60 days after entry into the United
States, the Department does not consider such conduct to constitute a basis
for an INA 212(a)(6)(C)(i) ineligibility.
_________________
Christopher G. Rizzo, Esq
Special Counsel
Law Offices of David T. Ferrara, LLC
www.naftalawfirm.com
P: (732) 784-2877
Email: Crizzo@naftalawfirm.com

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Reba
Moderator


Canuck in NC

Joined: 16 Jul 2004
Posts: 1449
Location: North Carolina

Posted: Tue Feb 12, 2008 4:02 am

 

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I'm just saying that I've read otherwise.
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