Trying to help my son (in Air Force) and his wife (Canadian) here permanently

[shelzmike]

Hello all!

So quick story to set the scene. My oldest son, who is 20, had been in a relationship (bona fide for sure) with his then girlfriend, who is a Canadian, for about 3 years before the day of his Basic Training graduation. He is in the Air Force and they got married on October 8, 2017 (in the US - San Antonio, TX). She was still in college, finishing her bachelor's degree and he had tech school so they figure they would get married then so that, hopefully it would make the immigration process easier. Seems reasonable.

I sort of stayed out of helping them with the process as I assumed they were more acquainted with it than I and wanted to do it together on their own. However, now, 6 months later, they aren't really that much closer and the more I talked to them about it, the more I can see they are lamenting over the sheer overwhelming amount of form numbers and other information. They also want to be sure they don't screw anything up, which i can TOTALLY understand. So, as it seems, they are in a little bit of analysis paralysis. I also realized they were probably being a bit too humble to ask for my assistance, but finally I saw the desire to get on with it that I decided to jump in and I think that I have a good handle on it, but have a few questions.

She is graduating next week and planning on coming to the US from Canada to visit him for awhile. This is the first time since being married they have been able to be together and I would love to be able to help them not have to be apart and wait any longer.

So, what I have discovered is that they totally overlooked the AOS. Here are my assumptions based on research, please correct anything that you see is incorrect or needs to be expanded on or clarified.

1.) She is eligible for AOS since she is an immediate family member (Spouse).
2.) Is able to file for AOS at the same time as the I-130 because she is immediate family and can skip the consular route.
3.) To file AOS, needs to:
a.) Be physically present in the US (she will be since she will be coming to Texas to be with him in a couple of weeks)
b.) Made lawful entry to the US (she will be by way of the US/Canadian border)
c.) Have an approved AND current I-130 petition (However, there?s an exception for immediate relatives of U.S. citizens. Immediate relatives may file the adjustment of status application together with the I-130 petition.<--correct?)

Here is question 1:

They are concerned as it pertains to the 183 day visitor issue. I read about this and it seems there is a lot of information as it relates to this. That for Canadians it is not really a hard and fast rule, but does open one up for more scruitiny if many trips are made. Also has US Income tax implications, which they are not concerned with due to the fact she plans on living here and that will be a reality soon enough.

So, from what I have read, filing the AOS (along with the I-130) essentially allows her to stay without problems until the process plays out to it's end (either approved, which there is no reason we are expecting it won't be or denied and appeals exhausted). Is this an accurate statement? (Probably the most important question of the whole post really)

Question 2:

When she gets to the border this time and they ask her why she is coming here and how long she is staying, does she need to say that she is coming to be with her husband and to file for an AOS/I-130? Or is that necessary?

Question 3:

I also read the following:
the most significant advantage to adjusting status is that the intending immigrant may remain in the United States with family during the process. It avoids the travel expense and prolonged separation between family members. So even though it may take slightly longer than consular processing, you can live, work and even travel outside the U.S. (Additional authorization must be obtained for employment and travel abroad by AOS applicants.)"

The part about travelling is the sticking point here - she is willing to stay in the US until the whole process is over, but would prefer to have the option to go back to Canada for a week or so to get all her affairs in order and get stuff to ship to their new home and to pick up her pet (appropriate documentation and such). There is also the possibility (as it always a possibility for anyone) that some kind of family emergency forces her to go back for a short period of time. Is the information above accurate in terms of travel while under AOS, with authorization?

Question 4:

Is there anything I am totally overlooking here? In a way, it almost seems too simple, compared to what they were expecting and that is sometimes concerning when dealing with the government!

I really appreciate any help on this matter and would love to be able to tell them they can start their happily ever after together sooner than they thought. Thanks!

Mike

[newacct]

Hello all!

So quick story to set the scene. My oldest son, who is 20, had been in a relationship (bona fide for sure) with his then girlfriend, who is a Canadian, for about 3 years before the day of his Basic Training graduation. He is in the Air Force and they got married on October 8, 2017 (in the US - San Antonio, TX). She was still in college, finishing her bachelor's degree and he had tech school so they figure they would get married then so that, hopefully it would make the immigration process easier. Seems reasonable.

I sort of stayed out of helping them with the process as I assumed they were more acquainted with it than I and wanted to do it together on their own. However, now, 6 months later, they aren't really that much closer and the more I talked to them about it, the more I can see they are lamenting over the sheer overwhelming amount of form numbers and other information. They also want to be sure they don't screw anything up, which i can TOTALLY understand. So, as it seems, they are in a little bit of analysis paralysis. I also realized they were probably being a bit too humble to ask for my assistance, but finally I saw the desire to get on with it that I decided to jump in and I think that I have a good handle on it, but have a few questions.

She is graduating next week and planning on coming to the US from Canada to visit him for awhile. This is the first time since being married they have been able to be together and I would love to be able to help them not have to be apart and wait any longer.

So, what I have discovered is that they totally overlooked the AOS. Here are my assumptions based on research, please correct anything that you see is incorrect or needs to be expanded on or clarified.

1.) She is eligible for AOS since she is an immediate family member (Spouse).
2.) Is able to file for AOS at the same time as the I-130 because she is immediate family and can skip the consular route.
3.) To file AOS, needs to:
a.) Be physically present in the US (she will be since she will be coming to Texas to be with him in a couple of weeks)
b.) Made lawful entry to the US (she will be by way of the US/Canadian border)
c.) Have an approved AND current I-130 petition (However, there?s an exception for immediate relatives of U.S. citizens. Immediate relatives may file the adjustment of status application together with the I-130 petition.<--correct?)

Here is question 1:

They are concerned as it pertains to the 183 day visitor issue. I read about this and it seems there is a lot of information as it relates to this. That for Canadians it is not really a hard and fast rule, but does open one up for more scruitiny if many trips are made. Also has US Income tax implications, which they are not concerned with due to the fact she plans on living here and that will be a reality soon enough.

So, from what I have read, filing the AOS (along with the I-130) essentially allows her to stay without problems until the process plays out to it's end (either approved, which there is no reason we are expecting it won't be or denied and appeals exhausted). Is this an accurate statement? (Probably the most important question of the whole post really)

Question 2:

When she gets to the border this time and they ask her why she is coming here and how long she is staying, does she need to say that she is coming to be with her husband and to file for an AOS/I-130? Or is that necessary?

Question 3:

I also read the following:
the most significant advantage to adjusting status is that the intending immigrant may remain in the United States with family during the process. It avoids the travel expense and prolonged separation between family members. So even though it may take slightly longer than consular processing, you can live, work and even travel outside the U.S. (Additional authorization must be obtained for employment and travel abroad by AOS applicants.)"

The part about travelling is the sticking point here - she is willing to stay in the US until the whole process is over, but would prefer to have the option to go back to Canada for a week or so to get all her affairs in order and get stuff to ship to their new home and to pick up her pet (appropriate documentation and such). There is also the possibility (as it always a possibility for anyone) that some kind of family emergency forces her to go back for a short period of time. Is the information above accurate in terms of travel while under AOS, with authorization?

Question 4:

Is there anything I am totally overlooking here? In a way, it almost seems too simple, compared to what they were expecting and that is sometimes concerning when dealing with the government!

I really appreciate any help on this matter and would love to be able to tell them they can start their happily ever after together sooner than they thought. Thanks!

Mike

They will deny her entry as a visitor if they think she will do AOS during that stay.

[shelzmike]

They will deny her entry as a visitor if they think she will do AOS during that stay.

Yeah, that is what I am seeing as I am researching. I have researched a lot and found that most everything else that I have is accurate.

a.) She gets over here legally, so is legally present
b.) Son files the I-130 and the AOS is filed as well at the same time
c.) At this point in time, I am reading on USCIS that is seems she would be granted an immediate immigrant visa (is this accurate?)
d.) They do all the necessary steps and barring any problems, she will get her green card after the process is over (successfully and no reason to think there will be an issue at all)

While I don't understand at all if they think she plans on doing an AOS they won't let her cross, I get that is an issue. Before 2 days ago, all they had planned on doing is spending some vacation time with one another. If they continue on with that plan and approach it as such outwardly and then so happen to decide within a few weeks that they have the opportunity to do the above steps, does that matter? I mean, I guess it is sorta under false pretenses, but had I not helped them out with this information until after she arrived, it wouldn't be a problem at all.

Your wording is interesting as well, does this mean if she tells them that she plans on getting an AOS they wont let her, or even if they simply THINK this is what she is going to do they will deny her. Does that make sense? She has a round trip ticket she is using, her banking is still staying open in Canada, she is not bringing anything more than travel baggage, and she still has a job in Canada. Additionally, her travel to the US has been fairly consistent over the years - she has made a trip in the Spring/Summer like this one, and one near the holidays each year for the past 3 years so that wouldn't look strange either.

Thanks for the response!

[kaylip]

It is against the law to enter the US as a visitor with the intent to stay. That's why newacct said they will deny her entry because if she tells the CBP officer at the border that she's going to visit her husband they will become suspicious of her true intent. Since they are already married the cannot file K1 adjustment of status(that's her going to the USA as a fiancee and her fiance filing adjustment of status for her). That would have been easier and better but since she is a spouse and already married the legal thing to do would be to have your son file through Consular processing, ie, iR1 or CR1 immigrant visa petition. The process may take a year but whilst their paperwork is being processed they can still visit each other periodically.

NB: You don't want to run into any problems if she DOES get admitted into the USA and at the AOS interview they interrogate the couple on suspicions oF her already being married before she came over to the USA and they deny her green card.

[shelzmike]

It is against the law to enter the US as a visitor with the intent to stay. That's why newacct said they will deny her entry because if she tells the CBP officer at the border that she's going to visit her husband they will become suspicious of her true intent. Since they are already married the cannot file K1 adjustment of status(that's her going to the USA as a fiancee and her fiance filing adjustment of status for her). That would have been easier and better but since she is a spouse and already married the legal thing to do would be to have your son file through Consular processing, ie, iR1 or CR1 immigrant visa petition. The process may take a year but whilst their paperwork is being processed they can still visit each other periodically.

NB: You don't want to run into any problems if she DOES get admitted into the USA and at the AOS interview they interrogate the couple on suspicions oF her already being married before she came over to the USA and they deny her green card.

Yikes, I see what you are saying now. They sorta screwed themselves by being young and totally not understanding the immigration law, plus a spur of the moment decision to get married when she came to his basic training graduation. They hadn't planned on getting married before she came over from Canada under the Visa Waiver Program to visit. However, she went back to Canada after only a few days after getting married so that she could finish her college degree and he could go finish tech school. I agree that the fiancee visa would have been the best route for them to take, but that is over and done with now. I think my message to them is going to be, it is going to probably take more time than they had thought, but that will will get there eventually since everything really is on the up and up (feel like I am putting too much faith in the government with that statement!). However, they need to be careful from this point forward.

Since the AOS is out of the question at this point, I am going to create another post for a question I have about how the K-3 Visa comes into play here. (if it does at all). Thanks again. I hate to have to tell them all this because they were so looking forward to seeing one another at the end of this month. Now it looks like the safest thing to do is to start all the petitions and processing before she even tries to come back again. They are going to be devastated. I feel terrible for them. Thanks for the input.

[inadmissible]

The K-3 visa is dead and - for all intents and purposes - are no longer issued

[shelzmike]

The K-3 visa is dead and - for all intents and purposes - are no longer issued

Yeah, I was just coming back here to try to edit my last post as I quickly discovered that the processing time for a K-3 is very near the same as an I-130, so it doesn't even make sense to do that. Looks like they just need to file the I-130, do the consular approach, and I am guessing she can visit using the receipt of the I-130 as proof she isn't planning on coming here to attempt an AOS? Not sure how that would really be proof. Perhaps the best thing to do for the immigration is just to file the I-130 and just stay apart until it get granted, not even attempt to travel here so as not to mess anything up. Sucks for their marriage I suppose, but it is what it is. Thanks!

[UScitizenFilingforspouse]

Hello all!

So quick story to set the scene. My oldest son, who is 20, had been in a relationship (bona fide for sure) with his then girlfriend, who is a Canadian, for about 3 years before the day of his Basic Training graduation. He is in the Air Force and they got married on October 8, 2017 (in the US - San Antonio, TX). She was still in college, finishing her bachelor's degree and he had tech school so they figure they would get married then so that, hopefully it would make the immigration process easier. Seems reasonable.

I sort of stayed out of helping them with the process as I assumed they were more acquainted with it than I and wanted to do it together on their own. However, now, 6 months later, they aren't really that much closer and the more I talked to them about it, the more I can see they are lamenting over the sheer overwhelming amount of form numbers and other information. They also want to be sure they don't screw anything up, which i can TOTALLY understand. So, as it seems, they are in a little bit of analysis paralysis. I also realized they were probably being a bit too humble to ask for my assistance, but finally I saw the desire to get on with it that I decided to jump in and I think that I have a good handle on it, but have a few questions.

She is graduating next week and planning on coming to the US from Canada to visit him for awhile. This is the first time since being married they have been able to be together and I would love to be able to help them not have to be apart and wait any longer.

So, what I have discovered is that they totally overlooked the AOS. Here are my assumptions based on research, please correct anything that you see is incorrect or needs to be expanded on or clarified.

1.) She is eligible for AOS since she is an immediate family member (Spouse).
2.) Is able to file for AOS at the same time as the I-130 because she is immediate family and can skip the consular route.
3.) To file AOS, needs to:
a.) Be physically present in the US (she will be since she will be coming to Texas to be with him in a couple of weeks)
b.) Made lawful entry to the US (she will be by way of the US/Canadian border)
c.) Have an approved AND current I-130 petition (However, there?s an exception for immediate relatives of U.S. citizens. Immediate relatives may file the adjustment of status application together with the I-130 petition.<--correct?)

Here is question 1:

They are concerned as it pertains to the 183 day visitor issue. I read about this and it seems there is a lot of information as it relates to this. That for Canadians it is not really a hard and fast rule, but does open one up for more scruitiny if many trips are made. Also has US Income tax implications, which they are not concerned with due to the fact she plans on living here and that will be a reality soon enough.

So, from what I have read, filing the AOS (along with the I-130) essentially allows her to stay without problems until the process plays out to it's end (either approved, which there is no reason we are expecting it won't be or denied and appeals exhausted). Is this an accurate statement? (Probably the most important question of the whole post really)

Question 2:

When she gets to the border this time and they ask her why she is coming here and how long she is staying, does she need to say that she is coming to be with her husband and to file for an AOS/I-130? Or is that necessary?

Question 3:

I also read the following:
the most significant advantage to adjusting status is that the intending immigrant may remain in the United States with family during the process. It avoids the travel expense and prolonged separation between family members. So even though it may take slightly longer than consular processing, you can live, work and even travel outside the U.S. (Additional authorization must be obtained for employment and travel abroad by AOS applicants.)"

The part about travelling is the sticking point here - she is willing to stay in the US until the whole process is over, but would prefer to have the option to go back to Canada for a week or so to get all her affairs in order and get stuff to ship to their new home and to pick up her pet (appropriate documentation and such). There is also the possibility (as it always a possibility for anyone) that some kind of family emergency forces her to go back for a short period of time. Is the information above accurate in terms of travel while under AOS, with authorization?

Question 4:

Is there anything I am totally overlooking here? In a way, it almost seems too simple, compared to what they were expecting and that is sometimes concerning when dealing with the government!

I really appreciate any help on this matter and would love to be able to tell them they can start their happily ever after together sooner than they thought. Thanks!

Mike

The issue is in lying. If you she says she is visiting her husband and returning to Canada, and shows proof of that, she's fine to enter. And then follows through and does not stay, all the better. If she stays, well, life happens and people change their minds all the time. Your son is also in the military. If it comes up, then every time she says the word husband, she needs to also say "who is in the military". Every time a member of the military comes up to me at work or wherever I run into one, I say "thank you for your service". If it's just the wife and I see military insurance on the chart, once again "thank you for your service".
And the consensus is that **** *al things seem to happen when members of the military; especially, those in active duty, file petitions for immediate relatives.

It's probably easier to enter through MN. Why? Because there you have people crossing every day for work or to shop at the Walmart in Canada because it's cheaper. They might cross several times a day. Now, if she's going to cross dragging a trailer with a couch, bed, TV, washer/dryer, fridge in it. Yeah, she would be lying. But if she just comes through with a suitcase that gets her through a weekend and then, changes her mind because they cannot be apart; then that's life. Then, you would have to show proof at the interview that she had to send for her belongings with receipts and customs forms. Have a paper trail ready. Records of conversations. Text messages. It may not even come up during the interview. Your son may be stationed elsewhere when it's time for the interview and she may have to go by herself.

It's not written anywhere that they get special treatment BUT USCIS has a dedicated help line for members of the military. I would strongly suggest that you call. Or your son might have to call. They will give him a better idea. I am all for special treatment for members of the military. After all, they're sticking their necks out there for us.
https://www.uscis.gov/military/military-help-line USCIS even issued a blanket civil surgeon designation to all physicians stationed anywhere because otherwise, members of the military would have a hard time locating a USCIS designated civil surgeon.

Where is he stationed?

All the best.