Canadian coming to the US - Mess at the border.

[raskog]

So I'm in a difficult situation. I'm an American citizen, and my fiance is a Canadian citizen. We decided to go the fiance visa route, and I've filed my I-129F a few months ago. Since we got so tired of not being able to see each other, we decided to relocate to the West Coast so I would live in Washington and she would live in B.C. so we could be close to each other. That was a month ago, and I've had no troubles at the border going to see her, however, she was refused entry a couple of times because her employment and living information was not satisfactory. A few days ago, she attempted to cross over the border again to see me and they told her that she was not allowed to try again for another six months.

Is this going to affect our application at all? We're still waiting for the petition to get approved, and we need to know if it's all mucked up or not now. Secondly, if our Visa does get approved before the six months are up, will she be allowed to cross? The border guard has been extremely rude and unhelpful, and they won't seem to give us any information whatsoever. Any helpful insight would be appreciated, we're not sure what we should do from here. Thank you.

[Kayalami]

1. Lets start with the basic tenent of US immigration law - each person seeking to enter the US that is not a USC is deemed to be an immigrant unless they prove otherwise (abridged from Sec 212 INA).

2. The job of the Inspector is to make sure anyone they deem to have such immigrant intent and does not have an immigrant visa doesn't get in. Congress has mandated them to do this.

3. Normally to demonstrate that you have no immigrant intent you must have compelling ties to your home country or other country other than the US such that you will return there after your visit to the US. Your fiance it seems has little by way of compelling ties to Canada. Further you have filed an I-129F petition for your fiance thus clearly verifying/ declaring her immigrant intent. Effectively (with respect) to the Inspector this is a no brainer. Aferall your fiance can enter the US and she can adjust status in the US.

4. I am not sure under what section of the INA she has been refused entry. It may be she was extremely lucky and got offered the chance to voluntarily withdraw her request to enter the US. I suggest you find out from either looking at her passport for any stamping/ annotation or a letter from CBP of any refusal reasons. If they are relevant they can throw a spanner in the works and may require waivers before the I-129F is processed.

5. IMHO your fiance should not attempt to re-enter the US until she has has her K1 visa. Once she has the K1 she must proceed to the US, marry within 90 days and adjust status by way of filing I-145. Its usually best to concurrently file for Advanced Parole (I-767) at the same time to facilitate travel into the US pending adjudication of the AOS and arrival of the green card.

6. If she tries to enter without a K1 she may easily get placed under expedited removal proceedings on grounds of misrepresentation. This is a 5 year ban from the US and there is AFAIK no legal recourse to it. It is done right at the Port of Entry. It is best that you do the visiting. Note the Canadian inspectors will also have the same concerns about your visits i.e. are you a genuine visitor. Carry plenty of proof of compelling ties to the US in particular any employment.

Good luck