--Posted 2/21/05--

Q- I am a Canadian boy, and I am planning to marry my American sweetheart. I visit the US legally every week or so as a visitor, stay for a day or for the whole weekend before heading back to Canada, without I-94. I heard that after the wedding, when my wife files for me in the U.S., I must "prove" when and where I entered the US, and prove that my entry was legal. What is that about? Every time, I enter legally but there's no paper trail. My passport is not stamped. Often, I don't even use my passport to cross. Shed some light on that please!

A- You may use an affidavit to show time, place, circumstances, and date of entry if you file for adjustment of status. But you may run into the problem that you entered the US as a visitor with the intent to marry and become an immigrant.

Q- Hello, I'm 32 years old residing in the Philippines. My parents petitioned me last December 1999 and when I checked the visa bulletin, it states that it is processing September 1995 applications. Does this mean it will take at least four years to process my application?

A- It could be more than 4 years as the dates do not progress a year for every year that passes. In March 2004, the date was May 1995, so it only progressed about four months in the past year.

Q- My Grandfather and all ancestors before him were born in the US (well, 300 years worth). He moved to Canada when he was 8 years old and my father and I were born in Canada. The rules seem complicated in this area, are there any work/ passport options I should look into so that I can work in the US?

A- While it is possible that your father was a US citizen depending on when he was born, it is unlikely that he would have passed that citizenship on to you unless he spent a significant amount of time in the US prior to your birth. If that is the case, you would need to use the normal avenues for Canadians to enter the U.S. If your father is alive and is a citizen of the US, he could sponsor you, but again the rules are complicated.

Q- I am an Indian by nationality, and currently am pursuing my MBA from Poland. My only question to you is which US visa is to be filed if I have to visit the U Sfor internship/ training for about 3 months. After this, I intend to come back and complete my studies. The various web sites I have been to have utterly confused me; whether it's J1 or H3, I fail to understand. Please clear this.

A-Each visa has its plusses and drawbacks. The H-3 is a complicated visa for the employer and many are reluctant to process it. It also requires an element of classroom study be part of the program.

The J-1 requires you to find a J-1 sponsoring organization such as AIPT to set up the program with the employer. There are fees involved to the program. You also might subject yourself to a two year home residency requirement under Section 212(e) of the act.

Q- I arrived about 3 months ago in the US having my permanent residency card through my mother's naturalization. I recently met my college sweetheart who is here on a visitor visa. We may be getting married. What is the process? What do we need to do to convert her visitor visa so she would be able to stay in the U.S. after getting married.

A- If you get married, you can file a petition on behalf of your wife to grant her permanent resident status in the United States. You would file form I-130 with supporting documentation according to the instructions on form I-130, found at www.uscis.gov.

However, you should be aware that if your girlfriend entered the U.S. on a visitor visa, she was required at the time of her visa interview to show that she only intended to enter the US for a temporary period, and that she maintained a residence outside the U.S. which she had no intention of abandoning. If, very shortly after entering the U.S. as a visitor, you file an immigrant petition for her, USCIS could determine that she misrepresented her "visitor" intent at the time of seeking admission as a visitor. This could be considered a fraud which could make her inadmissible as a permanent resident. For more information on how USCIS construes "intent" of aliens, visit http://www.usvisahelp.com/art_intent.html.

The problem with filing an I-130 petition on her behalf is that once you have filed the I-130 for her, it will take several years before a visa number is available to her and she can apply for permanent residence. You would be filing for her in the Family "2A" Preference category as "Spouse of Permanent Resident". Currently, Family 2A visas are available to people for whom I-130 petitions were filed on October 1, 2000. If the filing rate remains constant, this would mean that a visa number would not be available to her until about 4 years had passed. During that time, she would not be permitted to remain in the United States unless she had some other basis for remaining in the U.S. She would not be able to continue on her B-2 visitor status after you file an immigrant petition on her behalf, because the pendancy of an I-130 on her behalf shows she does not have the nonimmigrant intent required for a visitor visa. Other options would be for her to enroll in a U.S. university and get a student visa. Depending on her employment/ educational background, she may also qualify for employment-based nonimmigrant status.