K-1 or is I-130 possible?

[acrufox 6]

I am a Canadian citizen and my boyfriend of 17 years is a resident of Indiana, with the recent striking down of the gay marriage ban in Indiana, our friends encouraged us to get married. Soon after that the state announced it was applying for an emergency stay on the decision which will more than likely be approved which would put any marriages in a kind of limbo. So we decided against doing this in Indiana. It was suggested to us that since we would both be in the state of Viginia next month on a trip together, that we should go to the County Clerk Office in Maryland and get married there as they do not have residncy requirements for living in that state and have the ceremony right before heading back home to Canada and my husband would file the I-130 at a later date.

I was left under the impression this was indeed possible until I asked someone who is currently going through the process and they mentioned K-1 forms multiple times before even attempting marriage. Is the K-1 absolutely necessary before marriage or is the I-130 an alternative we can take after getting married? Or can the K-1 be filed after marriage?

At the time we had accepted the fact that we would just have to wait it out after DOMA was struck down because neither of us lived even remotely close to a state that recognized same sex marriage and would wait until the supreme court had made their decision. The striking down on same sex marriages ban in Indiana hit too close to home since he lives there.

I ask mainly because of the fact we had accepted this as just the way things would be so this year seemed like any other year and planned our trips together accordingly. The Indiana ruling was a real wake up call for us, but it literally came out of nowhere. If the K-1 is the only route possible, it would be nearly imposssible to go that route right now as a better portion of these trips have already been booked and aren't refundable. There is also the chance that I might get summoned to my local cousilate and it could coincide while away. It would end up being another year of waiting to get married if that is the case.

Thanks in advance!

Edited June 27, 2014 by acrufox

[RobbieG 94]

First a few notes.

1. Section 3 of DOMA was struck down a year ago. The USCIS and NVC look to whether a marriage is legal where it was performed. Any legal bonafide marriage to a US Citizen is considered for immigration purposes and must be sufficiently proved just as heterosexual petitioners must do.

2. If you are unmarried you can most likely go the K1 or I-130 route. My husband in Mexico and I chose the I-130 route because it works best for us. We both have professional careers and Dallas is only 2.5 hours by air to Mexico City and we see each other every month.

3. If the Beneficiary enters the US on a tourist visa with the intent to immigrate it is fraud.

4. If the Beneficiary enters the US soley for visiting a loved one, vacation or visiting friends and then decides to marry I believe a K1 could be filed for. Since it is not the route we took, I defer to others more knowledgeable here. As far as I know, the K1 cannot be filed after marriage.

Good luck on your future decisions. We have found the guides here to be very helpful.

[acrufox 6]

Thank you.

Someone pointed me here and I found the FAQ's explained almost everything I had questions about. Before that I was weary of what my friends were finding on google. It does appear I'll have to wait until next year though by the looks of things, would be infeasible to cancel everything planned to throw in a K-1 application in the middle of things.

Wish we had started the process when DOMA was stuck down though.

Edited June 27, 2014 by acrufox

[aleful 1,905]

hi

incorrect, K1 is for fiancé, you have to be single, you come to the US and marry within 90 days to adjust status in the US

if you marry, you cannot file the K1, because the purpose of the K1 is to marry in the US

the i130 is for spousal visa

you cannot do both, or you file the K1 and come to marry or you marry and file the i130 for spousal visa

[KayDeeCee 4,892]

A K-1 is for a fiance(e) visa for those that are unmarried. It used for the foreign fiance(e) to enter the US and marry the US citizen fiance(e) within 90 days of entry. You would then need to stay and file to adjust status. You would abandon your adjustment eligibility if you left the US before receiving AP(Advance Parole) or your green card first.

A K-1 is not needed to enter the US, marry and then return to your country. So, you can enter the US, get married as you posted about in Maryland, return to Canada and then the US citizen could file the I-130 petition to get started on getting you a CR-1 spousal visa. When you enter the US with a spousal visa, you will then become a permanent resident and no need to file for adjustment of status.

Compare visas > http://www.visajourney.com/content/compare

~ Moved from General Discussion to What Visa Do I Need ~

[acrufox 6]

I'm left with the general impression that coming to the USA and getting married and going back would probably be a nono. I'm not sure considering my circumstances. We went about this year just assuming it still wasn't possible to get married and booked a trip to Disney which comes up in two weeks and trip to Vegas right after Christmas, a lot of it has already been paid for and some of it cannot be refunded. I only carry a passport and travel as a visitor to the USA on these trips, so I don't know if someone would make a big deal of us obtaining the license on the way down and performing the ceremony on the way back. I don't want to go down on our Vegas trip and suddenly hear at customs that I married and no I-130 was submitted or a K-1 was submitted first before obtaining the license.

Mainly the point of obtaining the marriage license and ceremony in July was the feasibility/ease of obtaining them as we pass by, twice. Then when I'm back in Canada, neither of us has to worry about driving in winter driving conditions just to obtain it through a K-1.

Basically: Obtain marriage license in Maryland->Continue down the Florida->Disney Trip->Drive back to Maryland->Perform Ceremony->He goes back to Indiana & I return to Canada, nothing further is done until Feb 2015 when I-130 is filed by my Husband. After which I wait to be summoned by the consulate of my choice and go from there. Is this possible?

I've read that they frown down on that get married for the purpose of immigration, but we wouldn't be doing anything with it until the I-130 was filed, and I would be in Canada before submitting it.

Is there a number my BF could call and inquire about this?

Is there an actual legal document someone can link me to that says it is prohibited to obtain marriage in the USA before filing the I-130? We really want to do this the legal proper way, and don't want to mess this up, 17 years has been a very long wait to do so.

[aleful 1,905]

hi

on the contrary that's ok, what's not okay is to stay and adjust status

marrying and then later leaving to go through consular processing is fine

the problem is not the marrying part, the problem would be if you stayed to get your GC.

don't waste your time and money on a k` if you're coming to get married.

your spouse can file the i130 anytime after you marry, it will probably take a year or close to a year for your interview

it's not the consulate of your choice, it's the American Consulate closest to where you live, you cannot chose which consulate you will have your interview

As said before, you cannot file the i130 until after your marry, it is a spousal visa

[aaron2020 11,651]

Hi,

This is US laws. Consider all options.

It's immigration fraud to enter the US on a nonimmigrant visa (or similar) with the intent to immigrate.

However, the preconceived intent to immigrate alone is not a valid reason to deny the AOS of an Immediate Relative of a USC as long as the beneficiary did not lie at the POE.

So, while it is legally for you to enter the US as a Canadian visa free with the intent to immigrate, the law does not allow the US to deny the AOS as long as you did not lie at the POE.

Not advocating anything. Just letting the OP understand the consequences of possible actions.

[Dualie 185]

My husband and I married in Texas. He lives in North Dakota, I live in Canada. We married at a courthouse so that he could file an I130 petition for me to immigrate to the US. We did not break any laws (I was very careful to research this on this website). I visit him in the US often and always carry lots of documentation to prove ties to Canada.

From what I have read here, if I understand correctly, you and your BF want to go on a trip, get married, and then you return to Canada and your husband return to the US and file an I130. From what I have read, you would be fine to do this. Good luck.

Edited June 27, 2014 by Dualie

[acrufox 6]

Yes, we just want to get married and Maryland, nothing more or less than that. At a later date when everything we had already planned for is over and done with and I'm back home for the winter, he would file the I-130 and we would go from there.

As for the POE (point of entry?), I never get asked if I'm going down with intent to marry. It's always the usual fare of questions like where am I going, how long, what kind of job do I have, alcohol/tobbaco and firearms questions, a possible quick search of my trunk and I'm sent on my way as I have been for many years now. So I cannot see how I would be lying if none of those questions pertain to me and getting married.

If it does take a full year once the I-130 is filed though, would it just make more sense to just be patient, continue 2014 as we had originally planned and do the K-1 in February 2015? I mean if the K-1 takes less time to process than the I-130, then there really wouldn't be much of an advantage timewise to go the I-130 route if it would push things into the start of 2016.

Edited June 27, 2014 by acrufox

[acrufox 6]

I was just linked the following by a friend:

http://www.uscis.gov/family/same-sex-marriages

Doesn't Q3 cover my situation?

[acrufox 6]

I think it would probably be for the best if my BF submitted the K-1 in February of next year and go from there like many others have done on here. It would have been awesome to have gotten married while on our trip in July but there wouldn't be anything we could do with it until next year anyway to be on the safe side. Gives us a lot more time time to plan as well.

[aaron2020 11,651]

I was just linked the following by a friend:

http://www.uscis.gov/family/same-sex-marriages

Doesn't Q3 cover my situation?

Immigration is a federal matters.

Marriages are state level matters.

For immigration and citizenship purposes, same sex couples are treated under federal law.

While state restrictions on marriages does affect the migration process, a state prohibition against same sex marriage has no affect for immigration purposes.

A petitioner in a state that prohibits same sex marriages can still petition for a same sex fiancée or spouse.

[KayDeeCee 4,892]

It is perfectly legal to enter the US to marry and then return to your country. You do not need a special visa to be able to marry in the US, unless you intend to marry, stay and file for adjustment of status. Many people enter on a tourist visa(or the VWP or from Canada) and get married somewhere in the US as a destination wedding. Nothing wrong with that.

It takes about a year for the I-130, so you could marry on your trip, return home and have your new spouse file the I-130 petition then.

The choice is yours though. If you want to wait and file for a K-1 when you are ready to stay in the US. That is your choice. Just know that you will not be a permanent resident after you enter the US with the K-1 and you will have to file for AOS, which is another $1070 and then wait about 3 months after filing to get your EAD/AP and be able to work or re-enter the US should you travel outside the US.

With the I-130 and CR-1 visa, you will be a permanent resident after entry and be able to work and travel freely right away.

And yes, a legal SSM in a state that allows them is all you need to file for immigration. You do not have to reside in a state where SSM is legal, you just have to marry anywhere it is legal to do so.

Edited June 27, 2014 by KayDeeCee

[acrufox 6]

Since nothing is planned for 2015 in terms of trips or travel plans, money won't really be an issue and would be better spent on the K-1 anyway

If I went the K-130 route with a 1 year waiting period on that filed in Feb 2015, any trips that would be planned for that year would again have to be done on a passport. After 17 years, I cannot express how happy I would be to not have to do it this way ever again.