Canadian/American Question

[Mike&Melissa 0]

Hi there!

We are just starting the visa process and are becoming a little overwhelmed with all the info! This site is a great resource but hopefully someone can help us out with more specific questions?

Here's our story. We met in Prague teaching abroad in 2008. I came to the U.S. late 2008 and have been here ever since (I make sure I go back to Canada every 6 months for a visit to renew my tourist visa).

We were originally thinking of going back to Canada together in July to start processing our k-1 visa as his job gave him permission to work remotely for 4 months.

1)When do we start processing our k-1?

2)At what point during the process do I officially have to be back on Canadian soil?

3)Could we skip the k-1 and just get married in Canada and apply for a DCF?

4)Any other alternatives?

I've been told from a lawyer that it is risky to get married in the US and process it from here because of 'immigrant intent'. Both our records are clean, never been married before and have a legitimate, loving relationship.

Any advice would be greatly appreciated.

Thanks for your time and knowledge!

[JimVaPhuong 4,865]

1)When do we start processing our k-1?

The timing is up to you. Probably when you think you're ready for each step in the process. Take your time, read the guides, and plan how you want to proceed.

2)At what point during the process do I officially have to be back on Canadian soil?

Anytime, as long as you make it the consulate for your interview.

3)Could we skip the k-1 and just get married in Canada and apply for a DCF?

There are residency requirements for the US citizen. As long as your US citizen spouse legally resides in Canada, then you can submit via DCF. Note that the affidavit of support requires proving 'domicile' in the US. This can complicate things.

4)Any other alternatives?

See below...

I've been told from a lawyer that it is risky to get married in the US and process it from here because of 'immigrant intent'. Both our records are clean, never been married before and have a legitimate, loving relationship.

This is the fastest and easiest solution. As the lawyer advised you, it also comes with considerable risk that a fiance or spousal visa do not have. If you marry in the US and apply for AOS, you're putting your future in the hands of USCIS. If they determine that you intended to immigrate when you entered the US, then your green card will be denied and you will be deported. Further, your records will show that you are guilty of material misrepresentation, which comes with a lifetime ban from the US.

There are a few reasons why I'd strongly recommend against this approach in your particular case. You first arrived in the US more than a year ago with your fiance. You've spent the bulk of your time since then in the US with him, probably going back to Canada at least twice in order to avoid overstaying. This means you've entered the US at least 3 times specifically to be with your fiance. I think you'd have a difficult time convincing USCIS that the marriage and AOS were not planned before your last entry.

Something else to consider is that the CBP generally frowns on foreign visitors spending more time in the US than they spend in their home countries (e.g., visiting the US for 6 months, returning home for a month, and then visiting the US again for another 6 months, etc.). This makes the immigrant intent seem more likely.

[Mike&Melissa 0]

Thank you so much for the information!

This puts things in a better perspective, we will definitely go with the fiance visa.

Just to clarify, I will stay in the US until my interview at the Canadian consulate, then remain in Canada until the actual visa goes through?

We also have a trip to South America from May 22nd-June 6th, if we start our process now, will there be any documents sent to our home that need immediate attention?

Thanks again!

[canadian_wife 1,831]

Everything is pretty much electronic now, and if you are going in May - you should be fine. Just list an address that can receive documents just in case.

The time from interview to visa is only about 3 weeks (if that) so staying in Canada until the visa is advisable.

Good luck, join us in the Canada forum!

[pushbrk 14,556]

One critical piece of information and caution to take away from this discussion is that each attempted entry to the USA is considered separately based on the information available at the time. Since you've essentially been "living in" the USA, not "visiting" there's an increasingly significant risk of denied entry with each try. You are in great danger of not only being denied entry the next time but flagged for no entry until you have a K1 or CR1 (spouse) visa. You are already abusing your visitor privileges. There's no telling how long you'll get away with it.

[JlovesA 109]

Thank you so much for the information!

This puts things in a better perspective, we will definitely go with the fiance visa.

Just to clarify, I will stay in the US until my interview at the Canadian consulate, then remain in Canada until the actual visa goes through?

We also have a trip to South America from May 22nd-June 6th, if we start our process now, will there be any documents sent to our home that need immediate attention?

Thanks again!

Don't forget you need to have a medical done by a panel physician and I think (although am not 100% sure) this has to be done in your own country, IE Canada. I'm not sure where in Canada you'll list your address as (the embassy you go through will depend on your address), but you may be able to work it so you go for your medical and interview within a week or 2 of each other so you don't need to make multiple trips.

[pushbrk 14,556]

Don't forget you need to have a medical done by a panel physician and I think (although am not 100% sure) this has to be done in your own country, IE Canada. I'm not sure where in Canada you'll list your address as (the embassy you go through will depend on your address), but you may be able to work it so you go for your medical and interview within a week or 2 of each other so you don't need to make multiple trips.

K1 visa medicals and interviews are not held at the US Embassy in Canada. They are held either at the Vancouver or Montreal Consulate depending on the applicant's Province of residence. Countries only have one Embassy in any give country and it is in the Capital city.

[Kathryn41 3,207]

I will add additional information to Pushbrk's post. While Canadians are allowed to remain in the US for up to 6 months as a visitor, it is also expected that you spent an equal amount of time outside of the US as you do inside the US. You have definitely been abusing the 'visitor' status as you are not really a visitor but have been living in the US for well over a year, and using the technicality of 'visiting' Canada (your words, actually) every 6 months and then re-entering the US.

As well, you need to realize that since you have been outside of Canada for more than 6 months in the past year you are now no longer eligible for any provincial health coverage if you become sick. You need to make sure you have some sort of health coverage inside the US. When you return to Canada there is usually a 3 month waiting period before you become re-eligible for health benefits as well (depending on Province).

Also, you are now required to file US income tax returns with the IRS. If you spend more than 6 months in any given tax year in the US you are generally deemed a 'resident for tax purposes' which is different than for immigration purposes. To avoid filing a US return you need to complete a "Substantial US Presence" test and prove you have not been here the stated amount of time:

http://www.irs.gov/t...pics/tc851.html

To meet the substantial presence test, you must have been physically present in the United States on at least 31 days during the current year, and 183 days during the 3 year period that includes the current year and the 2 years immediately before. To satisfy the 183 days requirement, count all of the days you were present in the current year, and one-third of the days you were present in the first year before the current year, and one-sixth of the days you were present in the second year before the current year.

or you must prove you have maintained closer ties to Canada by filing form 8840:

How to Claim the Closer Connection Exception

You must file Form 8840, Closer Connection Exception Statement for Aliens (PDF), to claim the Closer Connection Exception. If you are filing a U.S. federal income tax return please attach Form 8840 to the income tax return. If you do not have to file a U.S. federal income tax return, send Form 8840 to the Internal Revenue Service Center indicated in the instructions for Form 8840 by the due date for filing an income tax return.

Requirement to File Form 8840

If you do not timely file Form 8840 (PDF), you cannot claim a closer connection to a foreign country or countries. This does not apply if you can show by clear and convincing evidence that you took reasonable actions to become aware of the filing requirements and significant steps to comply with those requirements

One final note - the reason you have " been told from a lawyer that it is risky to get married in the US and process it from here because of 'immigrant intent'" is because that is considered visa fraud - it is illegal. If you were already in the US and spontaneously decided that you wanted to spend your lives together and got married, then you would not have entered the country with 'intent' on staying. In that case you are eligible to apply to adjust status and obtain a green card from within the US. You admitted that you returned to the US with your US partner and have been living here ever since and are now investigating how to remain in the US. Since you have already admitted that your intent is to live in the US you can not claim the 'spontaneous decision' route. To do so is visa fraud - intentionally using a visa issued for one purpose for a totally different purpose as a ways of getting around the immigration process. You are already using your visitor status in that way and are at great risk if USCIS finds out. As was mentioned above, the repercussions are serious, and can lead to a life time ban of ever entering the US if USCIS finds a ruling of misrepresentation as well - eg. lying to them about anything, especially your intent.

You have been very, very very lucky up until now, but realize that at any moment your luck can change.

Edited March 24, 2010 by Kathryn41

[JlovesA 109]

K1 visa medicals and interviews are not held at the US Embassy in Canada. They are held either at the Vancouver or Montreal Consulate depending on the applicant's Province of residence. Countries only have one Embassy in any give country and it is in the Capital city.

Yes, I realize that. I didn't say her medical and interview were both at the embassy...I told her the embassy depends on her address because she's in Canada, where we have two consulates for K1. I realize I mixed up the term embassy and consulte but methinks that really isn't a big deal...

Edited March 25, 2010 by JlovesA

[pushbrk 14,556]

Yes, I realize that. I didn't say her medical and interview were both at the embassy...I told her the embassy depends on her address because she's in Canada, where we have two consulates for K1. I realize I mixed up the term embassy and consulte but methinks that really isn't a big deal...

And I'm telling you there is only one US Embassy in Canada. It's in Ottawa. Vancouver and Montreal have "Consulates" not "Embassies". I thought is was just big enough a deal to make the correction. Let's not make THAT a big deal.

[meauxna 15]

I came to the U.S. late 2008 and have been here ever since (I make sure I go back to Canada every 6 months for a visit to renew my tourist visa).

We were originally thinking of going back to Canada together in July to start processing our k-1 visa as his job gave him permission to work remotely for 4 months.

You might consider seeing a different lawyer (or adding more information about your last consultation). Especially if you are IN the US right now (you sound like you are). AND IF your bf doesn't have a burning urge to go live in Canada for four months (are you sure HE can legally do what he plans to do, in Canada?).

Then again, it's only $455 & change, plus a handful of months.

It's probably not a good idea for you to cross the border again (to the US), without a visa.

[Mike&Melissa 0]

You might consider seeing a different lawyer (or adding more information about your last consultation). Especially if you are IN the US right now (you sound like you are). AND IF your bf doesn't have a burning urge to go live in Canada for four months (are you sure HE can legally do what he plans to do, in Canada?).

Then again, it's only $455 & change, plus a handful of months.

It's probably not a good idea for you to cross the border again (to the US), without a visa.

What are you referring to that is $455?

Thanks for the information again, I will see another lawyer this week and ask her these questions to see where I can go from here.

[JimVaPhuong 4,865]

What are you referring to that is $455?

The cost of filing a fiancee visa petition with USCIS is $455.

The point that several people have made is that there is a real risk you might not be permitted back into the US the next time you try to enter. If the CBP officer takes a good look at how much time you've been spending in the US, he (or she) is likely to conclude that you've been living in the US rather than visiting. You'll be denied entry, and your name will be flagged in the CBP's database. If you do end up getting denied entry, then the subject is likely to come up at your interview. I don't think they'd deny your K1 visa because of it, but it would be a lot less stressful if you didn't have to address it.

The best way to address this would be to NOT attempt to return to the US the next time you leave until you get your K1 visa.

[meauxna 15]

What are you referring to that is $455?

Thanks for the information again, I will see another lawyer this week and ask her these questions to see where I can go from here.

You should ask the lawyer why it is, and is not, a good (better) idea for you to adjust status and remain in the US.

Unless you don't mind spending the K-1 money, and staying away. You have spent a significant amount of time in the US in the past 2 years, so you really need a professional's opinion on this.

[john sud. 0]

Don't forget you need to have a medical done by a panel physician and I think (although am not 100% sure) this has to be done in your own country, IE Canada. I'm not sure where in Canada you'll list your address as (the embassy you go through will depend on your address), but you may be able to work it so you go for your medical and interview within a week or 2 of each other so you don't need to make multiple trips.

I guess you have not paid your visa fee?! If you have not the fee is hundred and 31 US and I payed it twice so I have a two copies that I can transfer to anybody else who needs one!! Are you guys interested I am in Vancouver and I am leaving May 5, 2010 so we can do this before I leave!?

Regards John Sudic 604-783-9259 call anytime.