I am a Canadian citizen who has been working for a U.S. company since March 1996. Initially, I was working under an H-1B but was transferred to Sydney, Australia in December 1998 to work on a project at the 2000 Olympic Games.  The company created a registered Australian corporate entity, allowing staff in Australia to be paid locally, for the duration of the project.  When the Games are over in November 2000, I hope to return to the U.S. to remain employed by the company in a similar position to my current computer systems manager role.  The Australian subsidiary of the U.S. company will likely be dissolved shortly thereafter, though the parent company does business in several other countries.  I understand that I should be eligible for an L-1 transfer, but am unsure how best to proceed with preparations for the petition.  If I am eligible for application at the port-of-entry, does this simplify the process?

I will not comment on your eligibility for L-1 status, since I don't have sufficient facts to make that determination. I will limit my response to the specific questions that were asked.

According to 8 CFR §214.2(l)(1)(ii)(G)(2), a qualifying organization must be or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United States as an intracompany transferee. The INS regulations clearly require the employer to continue carrying on business abroad. However, the business abroad does not need to be the corporation in Australia. There is nothing in the definition that would prevent the dissolution or sale of the former employer so long as another parent, subsidiary or affiliate of the U.S. corporation continues to do business abroad.

As a Canadian citizen, you are eligible to seek L-1 status at a Class A port of entry along the Canada-U.S. border or an INS preflight inspection facility at selected Canadian airports. You cannot apply at the airport when you arrive in the United States directly from Australia.

Port of entry filings are not simpler, the same documentation must be submitted. The only advantage is time savings; it usually takes much longer to have a petition adjudicated at one of the four INS Service Centers.

Your web site indicates that, where a married couple are legally married at the time of the permanent residence petition but separate after the petition is filed, they can still proceed with the case. My daughter is still married to her U.S. citizen husband and her marriage was not a sham. However, she is currently separated from him. My daughter was told by a lawyer in Florida that her application is no longer valid because it would require BOTH my daughter and her husband to appear before an immigration official to obtain conditional permanent residency. Who is right? Can she proceed with the I-130 on her own? Is all the previous work lost?

This issue was discussed in several Federal Court of Appeal decisions. In Bark v. INS, 511 F.2d 1200 (9th Cir. 1975), the court made the following comments:

Evidence that the parties separated after their wedding is relevant in ascertaining whether they intended to establish a life together when they exchanged marriage vows. But evidence of separation, standing alone, cannot support a finding that a marriage was not bona fide when it was entered. The inference that the parties never intended a bona fide marriage from proof of separation is arbitrary unless we are reasonably assured that it is more probable than not that couples who separate after marriage never intended to live together. Common experience is directly to the contrary. Couples separate, temporarily and permanently, for all kinds of reasons that have nothing to do with any preconceived intent not to share their lives, such as calls to military service, educational needs, employment opportunities, illness, poverty, and domestic difficulties. Of course, the time and extent of separation, combined with other facts and circumstances, can and have adequately supported the conclusion that a marriage was not bona fide.

...

We decline to speculate about the conclusion that would have been reached if the Service had confined itself to evidence relevant to the parties' intent at the time of their marriage. The Service will have an opportunity on remand to develop the record in accordance with the views herein expressed.

A similar position was taken by the Federal Court of Appeal in Dabaghian v. Civiletti, 607 F.2d 868 (9th Cir. 1975), which made the following comments:

The INS, it is important to note, never has claimed or proved that Dabaghian's first marriage was a sham or fraud when entered. Instead, the INS moved to rescind on the ground that on January 13, 1972, when the adjustment of status was granted, his marriage was dead in fact even though it was still legally alive. Thus, says the INS, he was not the "spouse" of a United States citizen and was ineligible for the adjustment of status.

We reject the INS' legal position. If a marriage is not sham or fraudulent from its inception, it is valid for the purposes of determining eligibility for adjustment of status under § 245 of the Act until it is legally dissolved.

However, in Matter of Lenning, 17 I. & N. Dec. 476 (BIA 1980), the Board of Immigration Appeals held that the marriage was in effect legally dead when the spouses were separated under a legal separation agreement, the later filing of which in New York State could be the basis of a divorce. The Board stated the following:

At this time, physical separation after the marriage is a relevant factor only insofar as it bears upon the intent of the parties at the time of their marriage, i.e., whether the marriage is a sham.  See Bark v. INS, 511 F.2d 1200 (9 Cir. 1975). However, the existence of a valid legal separation presents an altogether different set of considerations. 

In light of the legal separation agreement, the Board found that the beneficiary was not entitled to an immigrant visa.  It said:

Thus, our holding here today is not based upon any notion of the viability of the marriage, but rather is determined on the basis of the separation agreement between the petitioner and beneficiary.  Since it is clear that the Congressional policy of retaining and uniting family relationships will not be furthered through the issuance of an immigrant visa to the beneficiary, the decision of the District Director to deny the visa petition was correct and the appeal shall be dismissed.

In summary, the Federal Court of Appeals has stated that that evidence of the separation alone is not a ground for concluding that the marriage was not bona fide at the time that the parties exchanged married vows. However, the separation can be relevant in ascertaining whether they intended to establish a life together when they exchanged marriage vows. The time and extent of separation, combined with other facts and circumstances, can support the conclusion that a marriage was not bona fide. The Board of Immigration Appeals has restricted this view by holding that where a legal separation has been entered into, the marriage is in fact dead and the alien spouse will be unable to immigrate to the United States.

The alien and her spouse are normally required to attend the adjustment interview. However, the failure of the spouse to attend does not necessarily guarantee that the case will be denied. If there is no legal separation and you can convince the INS officer during the interview that the parties entered into a bona fide marriage, it is still technically possible to be granted adjustment. However, you probably want to have legal representation, since the issues here are quite complex.

Does a Canadian citizen have to answer 'Yes" to questions on American visa documents regarding previous criminal convictions if a full pardon was received from the Canadian government? The conviction was possession of marijuana (minimal amount), the sentence was a $50 dollar fine, the offense was 25 years ago and the pardon was obtained 20 years ago. It is the only conviction ever received.

As a Canadian citizen, the only time you would applying for a "visa" at a U.S. consulate is if you are applying for an E visa, fiance visa, or immigrant visa. Canadians do not normally require visas. Form OF-156 (the visa application form) asks about convictions (whether or not a pardon was granted) and even arrests not resulting in convictions. If you are applying for one of these visas, clearly the conviction must be disclosed.

It is possible you were really asking about whether you had to disclose the criminal offense at the time that you seek admission to the United States. However, even in this situation, you must disclose the conviction. Foreign (in this case, Canadian) pardons do not eliminate excludability for the purposes of U.S. immigration law. You are still excludable under INA §212(a)(2)(A)(i)(II).

In order to enter the United States on a temporary basis, you will require a nonimmigrant waiver under INA §212(d)(3). Information on such waivers appears here.

In order to obtain permanent residence to the United States, you will require an immigrant waiver under INA §212(h)(1). However, this waiver is not available to aliens convicted of controlled substances offenses unless it was a single offense involving the simple possession of 30 grams or less of marijuana. Information concerning the immigrant waiver appears here.