CDN marrying a U.S. resident

First off I want to say what a great forum this is!

I have been searching through page after page trying to find a situation that is similiar to my own. Nothing was exact so I decided to post my situation. Thank you in advance for any replies.

I am a Canadian citizen that is currently visiting in the U.S. My girlfriend, and now fiance, is a Canadian who has had her green card for approx 1 year now. I am trying to find a job in a tough economy using the TN-1 visa. I worked in the U.S. 5 years ago, under a TN-1 visa as an Accountant, with my related finance degree so I am familiar with the TN process. No problems. We are planning a wedding in Mexico for Jan. 2009.

My questions are as follows:
1) If the wedding is in 5 months and I can't get hired on a TN-1, for whatever reason, am I taking a chance being a visitor in the U.S.? Will they let me back in as a visitor coming back in from Mexico?
2) Do I have any other visa options to work or not work? H1-B is not an option until next year I am being told. Also she cannot sponsor me until she gets U.S. residency in 3-5 years.we hear?
3) I keep reading a maximum stay of 181 days over and over but I have also read that it is 6 months duration restaring everytime I re-enter. Which is it?

I worry that if I go back to Canada that I will not be allowed in because of my intent to marry her. Is my only option to just tell the immigration officer that I am just visiting a friend? I would hate to wreck my own wedding but I know it is a crap shoot at the border any given day.

Just a few questions of the millions I have. Should I be contacting an immigration attorney for advice instead? All help is greatly appreciated.

Thank you in advance!

1) If the wedding is in 5 months and I can't get hired on a TN-1, for whatever reason, am I taking a chance being a visitor in the U.S.? Will they let me back in as a visitor coming back in from Mexico?

Depends how long you were there before you left for Mexico, and what your plans are once you get there. Obviously, if you don't have a visa, you can't stay indefinitely.

2) Do I have any other visa options to work or not work? H1-B is not an option until next year I am being told. Also she cannot sponsor me until she gets U.S. residency in 3-5 years.we hear?

US citizenship you mean? She's already a legal permanent resident if she has a green card. And yes, she can petition to sponsor you if she's only just an LPR, but it'll take several years. Once she's got citizenship though (it's 5 years after she got her green card that she can apply for citizenship btw), she can upgrade the petition, if it is not yet approved. And during that time, unless you can get some other sort of visa, you'll have to remain in Canada and wait it out, except for short visits.

3) I keep reading a maximum stay of 181 days over and over but I have also read that it is 6 months duration restaring everytime I re-enter. Which is it?

It depends who you ask, and the mood of the CBP when you're crossing. Some will say its 6 months per calendar year, and some will say its 6 months per visit. Regardless, any time you enter, whether you've been there before or not, they can deny your entry if you cannot prove ties to home country. Having a spouse in the US is obviously stronger ties to the US than to Canada. If you have no job in Canada, no residence that you're paying a mortgage or rent on, no utilities bills in your name etc etc etc, you may well be denied entry and won't be allowed in again until you get a visa of some sort.

Yes, it really is a crap-shoot.

1) Maybe not if your wife is an LPR. You have to be able to show you are only visiting the US, not staying, so the more proof you have to that effect the better. It is legal to visit your wife in the US but obviously they're going to be suspicious that you plan on staying permanently;
2) She can file an I-130 for you if she's an LPR. But it won't be quick, 3-4 years is the best guess;
3) It's six months in a calendar year. You cannot just leave and turn around and re-enter. But it does depend to some degree on the mood of USCIS when it comes to Canadian citizens.

H-1B isn't really a stellar option because of the quota, I think your best bet would be to enter as TN-1 and then apply for AOS when your visa number comes up when the I-130 petition is approved.

However TN-1 requires "bona-fide non-immigrant intent" - USCIS won't believe you if you tell them you're married to an LPR.

1) If the wedding is in 5 months and I can't get hired on a TN-1, for whatever reason, am I taking a chance being a visitor in the U.S.? Will they let me back in as a visitor coming back in from Mexico?

Depends how long you were there before you left for Mexico, and what your plans are once you get there. Obviously, if you don't have a visa, you can't stay indefinitely.

What she said. You need to push hard to find work as a TN. Regardless of whether or not they let you in on that occasion, eventually you will run out of options--married or not--to stay legally long before you can adjust status as the spouse of an LPR. Getting work has to be your priority now.

US citizenship you mean? She's already a legal permanent resident if she has a green card. And yes, she can petition to sponsor you if she's only just an LPR, but it'll take several years. Once she's got citizenship though (it's 5 years after she got her green card that she can apply for citizenship btw), she can upgrade the petition, if it is not yet approved.

It takes almost five years for the priority date to become current (the current priority date is Dec 1, 2003 for spouses of LPRs). Given that she has been an LPR for a year already, it is very close to a wash at this point whether to sponsor as an LPR or just wait until she is a US citizen.

2) She can file an I-130 for you if she's an LPR. But it won't be quick, 3-4 years is the best guess;

Almost five years. The current priority date for spouses of LPRs is Dec 1, 2003.

However TN-1 requires "bona-fide non-immigrant intent" - USCIS won't believe you if you tell them you're married to an LPR.

As long as the TN nonimmigrant has no intention of remaining permanently on this entry, evidence of future immigrant intent is not supposed to be grounds for denying a TN. If the pending I-130 is years away from being approved, and you ultimately go for consular processing, there shouldn't be an issue.

According to AILA it's somewhere around four years, but I think it's a moot point because he's going to have to do it that way whether it's four or five years because citizenship applications are taking 15 months presently, plus you add on a year for the I-130 after she becomes a citizen, so either way it's quicker for her to file an I-130 now as an LPR.

As long as the TN nonimmigrant has no intention of remaining permanently on this entry

It's a tough one to convince them of though, especially as he's got to stay in TN-1 status for five years. There have been a couple of people who've posted on here who were purely staying just on TN-1 without the addition of an LPR wife, and they eventually got turned down because USCIS didn't believe them anymore. Add in a wife who is an LPR and I think it's going to be a tough sell to USCIS the longer he stays.

To do this you'd have to leave the US as infrequently as possible to reduce the number of times you get asked the question when re-entering.

Lot of people seem to get in this particular situation but it's usually with a US citizen spouse, so they only have to carry on the charade of "non-immigrant" intent for a year which isn't too hard. Five years is going to be tricky, I reckon.

This is one situation where an H-1B or some other visa might actually be better but of course they're harder to get and he wants to move there ASAP. Maybe enter as TN-1, convince the employer to petition for H-1B (or something else like O-1), then do AOS when the I-130 is approved would be the best approach.

Dunno really, if it were me in this situation and my wife wanted to keep her LPR status, I think I'd move as close to the border as possible so you're not completely stuffed if you ever get denied entry (because she can come and visit easily).

Thanks to all for the responses. It appears like the route I need to take is to get work via the TN-1 visa then basically wait until my future wife is a US citizen for her to sponsor me. Therefore I will carry on the charade of non-immigrant for as many years as I can and try to cut back my travel. However I still have to go back annually to renew my TN.

What if we go through immigration at the airport separately and never admit to being married?

Another option is to have my employer sponsor me for a green card. but first I need the job. Ha Ha My fiance worked on a TN-1 visa for 5 years with many trips to Canada yearly with no problems ever. Was she just lucky?

I have a difficult time thinking I have to cross my fingers for 5+ years and hope that I never get a rude/grouchy customs agent. Maybe I should play the lottery instead.

Thanks again for all your help. We appreciate the input.

What if we go through immigration at the airport separately and never admit to being married?

This may work. At some airports you'd go through different lines anyways (one for GC/USC, the other for nonimmigrants) so you'd have at least a plausible explanation if Big Brother wises up. If asked point blank as to whether you are married you have to tell the truth. But their focus for TN's travelling "alone" tends to be on your work and whether it qualifies for continued TN status, so you could well slide by without them asking about your family/personal life.

Another option is to have my employer sponsor me for a green card. but first I need the job. Ha Ha My fiance worked on a TN-1 visa for 5 years with many trips to Canada yearly with no problems ever. Was she just lucky?

Not lucky, no. I'd more say that unmarried folks who get it pulled before five years for immigrant intent issues are unlucky. It is certainly plausible to stay five years and still genuinely intend to return to Canada. The longer you stay the harder it is to make that case but it is supposed to be renewable indefinitely as long as the intent to "eventually" leave remains.

Thanks to all for the responses. It appears like the route I need to take is to get work via the TN-1 visa then basically wait until my future wife is a US citizen for her to sponsor me.

No, because it will take longer this way - she needs to sponsor you now. It will be a minimum of two years longer if she waits to become a citizen, because you have to add on the year for the I-130 to be approved and the time it takes for her to become a citizen after she applies. Bear in mind we really have no idea how long the processing time will take - we're just guessing based on what other people have said and what it says in the visa bulletin. For all we know next year second priority applications might get more visa numbers and USCIS might double the staff working on them and it will be a much shorter wait time.

If you haven't got it by the time her citizenship application is approved, that's the time to think about her filing as a US citizen.

Therefore I will carry on the charade of non-immigrant for as many years as I can and try to cut back my travel. However I still have to go back annually to renew my TN.

No you won't because TN status is being extended to three years, so if you get it now (for one year), you may only have to renew it once, so the awkward conversation will only come up once if you never leave the US except for that one renewal (and you might be able to do it via mail).

What if we go through immigration at the airport separately and never admit to being married?

Well let's put it like this, if at any point USCIS think you are married to a US citizen or LPR who lives in the US they will not believe you have "non-immigrant intent". Legally you can be in this situation and still have non-immigrant intent as it's quite common for spouses to visit each other while they wait for a K-3 visa or whatever to be approved, but in this situation I think it's unlikely they would believe you, because you are applying for work authorization.

Another option is to have my employer sponsor me for a green card. but first I need the job. Ha Ha My fiance worked on a TN-1 visa for 5 years with many trips to Canada yearly with no problems ever. Was she just lucky?

She wasn't married to an LPR. Been people on here who've had TN-1 for over a decade and had no problems, also been people on here who've had it for a few years and USCIS decided they didn't have "non-immigrant intent" and they got turned down. It's pot luck really.

I have a difficult time thinking I have to cross my fingers for 5+ years and hope that I never get a rude/grouchy customs agent. Maybe I should play the lottery instead.

Or move to Canada. This is a dicey situation, even if you get past USCIS at the border and they believe you have non-immigrant intent, the person interviewing you when the I-130 petition is approved may think you misrepresented yourself when you got TN-1 status.

The only possible way to get a handle on that is to talk to an immigration consultant local to wherever you plan on living in the US who has some direct experience with the staff at the local USCIS office and the POE.

It may never be an issue and everything might go fine, then again it might not, really hard to say because we can only look at the regs.