Joining your spouse in the US

The application to join your spouse in the US, that is to say to get a green card, may take 8 to 12 months. Once you've applied for a green card, it can be difficult, if not impossible, to visit the US during the processing period because you will be presumed to have the intent to stay permanently in the US when examined by an immigration officer at a port of entry to the U.S.A. However, new rules put in place in 2001 allow you and your children to apply for temporary visas to live in the US while awaiting the processing of your paperwork within the country. But many couples prefer to wait a few months longer and have all the paperwork completed by the foreign Consulate. This is because expediting the arrival can unfortunately be followed by substantial internal delays for the green card to be processed in the United States since by and large Consular processing has been quicker.

Remaining with your spouse in the US

There are certain benefits in applying for a green card from within the USA. The biggest one is that, although the process can take over a year, you are already in the country with your spouse. If problems arise in your case, you will be able to wait for a decision in the United States and you can appeal a negative decision. You can apply for work authorization along with your application for a green card, and certain paperwork can be conducted more smoothly. Unfortunately, you won't be able to leave the US during processing without getting special permission - even for an emergency.

Any applicant for an immigration benefit has the burden of proving their eligibility. A key concept regarding visitors who marry while visiting the United States is the added burden of proof arising from the presumption of pre-conceived intent. The presumption applies to anyone who marries inside the U.S. within 30 days of their arrival. The concept is that while the visitor claimed they were only coming for a visit, in fact they are presumed to have had the pre-conceived intent to marry and stay permanently. This means that any such applicant for permanent residence as a spouse of a U.S. citizen will have a heavy burden of proof to offset in order to succeed. In effect, a marriage of convenience for illegal immigration is presumed.
	After 30 days and up to 60 days following arrival, the presumption is replaced by a negative inference of pre-conceived intent. The burden of proof is still on the applicant but it is not as hard to show that the marriage was legitimate as during the presumption phase. After 60 days the negative inference disappears and all that remains is an onus on the couple to show that their marriage was legitimate. It is also worth mentioning that entering the as a visitor and then marrying and applying for a green card from inside the country is not encouraged since, as a matter of policy, the U.S. government would have a nightmare if all couples decided to apply this way. In fact, knowingly doing this is fraud and can result in a five year bar to entry if the fraud is uncovered by U.S. Immigration officials. Nonetheless, an application made
inside the U.S. will not be automatically denied solely on that basis. Factors that will be considered are things like when the couple decided they should marry, why they didn't apply from abroad, when they started making their wedding arrangements, whether they had any of the arrangements set within the 60 days after arrival, etc. To meet the burden of proof of legitimacy of the marriage the couple should take pictures of the wedding, have a white dress and tuxedo, have lots of witnesses and family present, have a ring, be married by a religious official if possible, have a reception, and go on a honeymoon. In short, the wedding should be real.

Conditional Status

If you qualify for a green card through your spouse, but your marriage is less than two years old, you will obtain a two-year conditional status. You can apply to remove the conditional status at the end of two years. Normally both parties apply. However, in certain situations when the marriage falls apart, such as in battered spouse circumstances, one party can still succeed.

Entering the country to marry your fiancé(e)

American immigration allows you to enter the United States to marry your fiancé(e), provided you do so within 90 days. You can then immediately apply for a green card.

While Canadians typically don't require a visa to visit their neighbor to the south, this is an exception to the rule. Although this can take 6-8 months for processing, it is the legal way of entering the United States with the intention of marrying a US citizen. You can also live and get permission to work in the US from the date of entry. But, in reality, there are two applications involved here: the first just to enter the country for the marriage, the second for permanent resident status. The first takes 6-8 months, but the second adjustment of status is another 12-18 months more.

Are children included in the process?

A child will qualify under the petition if the parents wed before the child turned 18.

SETTLING IN CANADA

Canadian immigration law in the area of spousal sponsorships has been extended to include common-law partners and same-sex partners (requiring proof of having lived together in a commited sexual relationship for at least a year). The Canadian equivalent of the green card is a maple leaf card, which allows one to live and work anywhere in Canada, and ultimately to qualify for Canadian citizenship after three years of permanent residence. Sponsorship can be done by a Canadian citizen or a permanent resident. The average processing time is approximately 8 to 12 months. However, depending on specific circumstances and regions, it may be shorter, or as long as 36 months. While in theory you can apply for permanent resident status and visitor's status at the same time, your application for visitor's status may be unsuccessful, since it is likely that immigration officials will question your intention to leave Canada when it expires.

Joining your spouse in Canada

A spouse can be sponsored to enter Canada for permanent residence. This application, which also applies to common law and same-sex relationships, requires a sponsorship, an application for permanent residence, and some regional-specific work.

Remaining with your spouse in Canada

If you have been living together in Canada, or you are married and both of you are in Canada, you can sponsor your spouse from within the country. This applies equally to common-law and same-sex relationships. The beauty of this type of application is that, once the principal application is approved “in principle” by the Immigration Office, the foreign spouse can obtain a work permit. The approval in principal usually takes about five or six months.

Entering Canada to marry your fiancé(e)

The designation of fiancé(e) has been removed from the new rules pertaining to Canadian immigration. Entering Canada on this basis is now not possible. As mentioned in the discussion on US immigration, entering Canada under the pretext of being a visitor, and then marrying a fiancé(e) and applying for a maple leaf card, risks fraud. Although it is not formalized to the same extent in the law in Canada, the amount of time that passes between entry into the country and a marriage affects the onus placed on the couple to disprove fraud.

Are children included in the process?

Spousal sponsorship includes dependent children. This is the case whether the application takes place from within or outside of Canada. Dependent children are those under or over 22 years of age, depending on their particular circumstances.

SIMILARITIES AND DIFFERENCES BETWEEN CANADIAN AND US IMMIGRATION

It may be apparent that there are both similarities and differences between spousal sponsorships in Canada and the USA. The validity of the marriage is a primary concern for both countries, who don't want their rules, which have been created to help reconnect families, exploited as a means of skirting around immigration problems. Spousal sponsorship is treated as a priority by both countries. Both permit sponsorship for a spouse residing within the country and outside the country. Both permit the immigrating spouse to apply for citizenship after three years of permanent resident status, and both allow dual citizenship. In the U.S., loss of status results from leaving the country with the intent of making some other country your permanent home. Even if you do not intend to abandon your permanent resident status, an absence of longer than six months can potentially pose problems. Canada, on the other hand, employs more of a physical presence test, where a permanent resident must be physically present in Canada (or qualify under a listed exception) for at least 730 days in any given five year period, or may lose permanent resident status. In theory, it is possible for the individuals in a couple to qualify as permanent residents in each other’s countries and maintain their home citizenship as well. Common law marriages and same sex marriages, which have been recognized in the new Canadian immigration law, are recognized in only a handful of states in the U.S., and are not a settled area of immigration law there. They can potentially be valid for immigration purposes depending on the laws of the place of residence.

A key difference is that Canada treats permanent resident spousal sponsors on a par with Canadian citizens. In the U.S., spouses of Permanent Resident sponsors are subject to country quotas and extra time delays while their applications are processed. On the other hand, US immigration maintains a special status for fiancé(e)s, while Canadian law has removed that designation. Finally, neither country demands proof of income as a basis for sponsorship, yet both seek to avoid negative financial impact on their country's social safety net by rejecting those applications where this would obviously result.

CONCLUSION

The interconnectedness of our world has led to greater movement of people across national borders. In recognition of the growing global community, Canadian and US immigration laws attempt to aid in reconnecting couples and families who reside in different places. However, factors of security and public policy permeate the system.

There are different options available for couples in different situations. Legal experience in this area will greatly benefit those who desire a smooth resolution of their immigration needs.

Here are four questions for you:

• Do you and your spouse have an immigration problem?
• Are you confused about what to do?
• Are you overwhelmed by all the paperwork?
• Do you find it hard to get a straight answer from immigration officials?

I work with executives and cross-border couples to get through immigration problems to obtain work permits and permanent resident status (green cards/maple leaf cards). Unlike almost all other immigration advisers I am a member of the bar, and actually practice immigration law, in both the United States and Canada. In the last 30 years I have handled over 10,000 legal cases gaining more experience with each case to help my next clients. I solve immigration problems for clients so they save precious time, avoid extra effort and make more money.

Andy J. Semotiuk