Filing from the US

[Nitas_man 3,100]

2 hours ago, NikLR said:

Ive seen one K3 through a Canadian Consulate since 2011. It was right before Vancouver stopped processing K1 several years ago. Montreal has historically closed the K3 route when there is an approved I-130.  USCIS just closes the I-129F themselves these days when they approve the I-130.  

Regardless it's saves at most a month or two, and costs twice as much without the green card and ability to work.  It's an inferior visa. 

Yes it's still on the books and some Nebraska filers have gotten lucky sending the I-129F to get their I-130 approved sooner. But the visa itself is obsolete and granted less than 1%. 

That would fall under “remote”.  I think we were the last group to get them, and in our case the I-130/I-129F approval was same day but we still got the K3.

Edited January 2, 2020 by Nitas_man

[Hawk Riders 814]

20 minutes ago, Suze1 said:

You do not need a visitor's visa. As long as you do not abuse your right to seek entry as a Canadian, and that right is not revoked due to your behavior, you can come and go AS A VISITOR.

But immigration is quite clued into people trying to LIVE here when they should only be VISITING here. They know that game, and are ready for it. 

 

(BTW - With the background you just shared, your chances getting a visitor's visa would be very low. Your ties are too low. But again, you do NOT need a visitor's visa. as it stands now.)

32 minutes ago, Jessjames14 said:

What is this visitors visa? Was I supposed to get one of these when I crossed into the US?

 

Each time you present to CBP they can choose to admit or not admit you. Sometimes they give you a 6mo passport stamp with a B1/B2 (visitor's visa); sometimes they don't. Sometimes they give you a passport stamp with something like "no AoS/no EOS" attached if you've been queried and have affirmed a departure date after some challenges with CBP.

PM me if you'd like to hear about our experiences with immigration misinformation/poor choices before figuring out how to do it right...

There is a 10yr nonimmigrant visitor's visa with an application process/interview etc, but as others have said, you would likely be denied for that (we were). 

[Amadia 711]

I've read the posts on here and I can safely say that I've found several holes in OP's story:

1. OP kept referencing living together in Canada for 3 years and married for 2 years.....but the 2-year anniversary is not until April 2020.

2. OP moved to Florida and is living in an apartment there.

3. OP crossed over the Canadian/US border and stated that return would be around Christmas time; OP stayed beyond the intended return.

4. OP mentioned filing for the spouse visa but then adjusting status while in the US.

5. OP is asking about getting sponsored under a work visa instead of a spouse visa.

6. OP stays for 6mths in the US which could be considered abuse of the visitor's visa privilege. 

7. OP's spouse is already saying that she can stay because she is married to an American (what?)

 

At the end of the day, we can all offer our opinions on what is the best route for others to take in their arduous immigration journeys but, the final result is what they choose to do with all the information that they have received.

 

OP, I wish you and your spouse the best of luck in whatever choice you make for your lives together

[LilyJ 1,258]

1 hour ago, Jessjames14 said:

Also basically my husband said “you’re allowed to be here as long as you want you’re married to an American and your father in law lives here and you’re not working”.  Which I knew deep down wasn’t the case.  I knew there was a 6 month rule  

Yes you’re right it is absolutely not the case. Being married to a US citizen doesn’t outright grant anyone permission to stay or live in the US. The only way to get permission to live in the US is by applying for a visa. You also can’t come to the US with intent to stay or adjust status, you must apply for a visa abroad. You can visit your husband throughout the process (as long as you don’t abuse your visitor privileges and as long as the CBP officer allows you to) and he can visit you but you can’t come and stay with plans to adjust status as that would be visa fraud and can actually get you banned for life if it’s found out (and they will find out). So, the safest and most sensible thing to do, is stay in Canada, go the IR1 visa route, have your interview in Montreal, and then move to the US once you’ve got your visa. Yes you will have to spend quite a bit of time apart from each other (you can’t come and “live” in the US for 6 months at a time, especially when they know you have a spouse in the US and are trying to get a visa, they just won’t allow that), but many many many of us do it and it is possible 

Edited January 2, 2020 by LilyJ

[patrick33 19]

Canadians are issued B-2 visas at the border, it is strange. So I guess they are lumped in with the VWP except they don't have to apply for the ESTA like the other visa waiver counties have to. You just show up at the border with your Canadian passport, and they stamp it and write B-2 in it. This is from my experience when I visited with my Canadian passport. They wrote a departure date as well, which was 6 months from the date I entered.

 

If you intended to only stay for a few weeks, but they gave you 6 months by writing the date in your passport, or by writing nothing in your passport and just a stamp or stamp and "B-2", you should be good to stay for the 6 months. I don't think you can stagger those 6 months though, like for example, stay for 2 and then leave for a month and then plan to come back to spend another 4 months. I mean you could, but each entry will be assessed individually by the CBP and if they think you're spending too much time in the US they'll deny entry (and maybe ban you? I don't know for sure, probably wouldn't be that dramatic).

 

The safest option is definitely go with the IR-1 in my opinion. Don't overstay your visits, visit when you can, and the processing time will go by quickly. Good luck!

[geowrian 22,336]

2 hours ago, Jessjames14 said:

I was under the impression that After filing the petition I could apply to adjust status so I would be able to stay here with him while it is being processed. However I realize now from you guys that is not the case and I must go back to Canada after my 6 month time is up.  However you guys mention a visitor visa.. I’m not sure if this apply to canadians? I was never issued a visitor visa?

You can apply for a visitor (B-2) visa, but it's generally not suggested or required for a Canadian. You apply for B-1/B-2 status at the border. It was granted on your most recent entry.

 

Quote

Also basically my husband said “you’re allowed to be here as long as you want you’re married to an American and your father in law lives here and you’re not working”.  Which I knew deep down wasn’t the case.  I knew there was a 6 month rule  

He's wrong, as you seemed to know.

There is no "6 month rule" per-se. The duration of stay of your visit is dictated by your I-94. This is typically up to 6 months, although nothing is guaranteed.

 

This is also per-visit. You can theoretically spend over 6 months in the US per year just fine. There is a myth that there is some sort of hard limit per year - there isn't.

Although obviously there are consequences of staying so long in the US...namely in terms of US taxes and loss of benefits back home (such as healthcare coverage). There's also the risk of being denied entry on future attempts because they think you are not visiting but living in the US.

 

2 hours ago, Jessjames14 said:

My husband and I drove across at the same time (in separate cars) and I said I would be coming home for Christmas, however we didn’t end up going home for Christmas, but I am going back in February for a doctors appointment and I am hoping I’ll be able to return until May (when the 6 months is up).   I just got here 4 weeks ago.   Is there an issue with this? 

You can return fine, and you can try to visit again. You'll probably be allowed to, but it's never guaranteed.

 

I will just note that AOS is a valid option for you since you did not enter with intent to stay. However, that option no longer makes any sense because once you file for AOS, you cannot leave the US (and return) without AP and that won't be issued for several months anyway. And you cannot re-enter with intent to stay. So AOS makes no sense here.

 

1 hour ago, Jessjames14 said:

What is this visitors visa? Was I supposed to get one of these when I crossed into the US?

No. You can enter with B-1/B-2 status as a Canadian just fine (unless you were barred for some reason, which doesn't seem to apply here).

 

34 minutes ago, patrick33 said:

Canadians are issued B-2 visas at the border, it is strange. So I guess they are lumped in with the VWP except they don't have to apply for the ESTA like the other visa waiver counties have to. You just show up at the border with your Canadian passport, and they stamp it and write B-2 in it. This is from my experience when I visited with my Canadian passport. They wrote a departure date as well, which was 6 months from the date I entered.

More precisely, you can apply for entry with B-1/B-2 status (B-2 for a visitor, which makes sense for most people). You are not issued a visa. It is a visa-less admission under a different program than the VWP.

The VWP has other requirements. VWP travelers have several restrictions as well, especially when it comes to things like AOS (it is explicitly barred except as the IR of a USC). A VWP entrant cannot contest their removal (except in a limited case) after entry...they waive that right by entering on the VWP.

ESTA is only a travel authorization to board the vehicle. A VWP traveler can cross by land w/o an ESTA.

 

Quote

If you intended to only stay for a few weeks, but they gave you 6 months by writing the date in your passport, or by writing nothing in your passport and just a stamp or stamp and "B-2", you should be good to stay for the 6 months. I don't think you can stagger those 6 months though, like for example, stay for 2 and then leave for a month and then plan to come back to spend another 4 months. I mean you could, but each entry will be assessed individually by the CBP and if they think you're spending too much time in the US they'll deny entry (and maybe ban you? I don't know for sure, probably wouldn't be that dramatic).

The actual I-94 is what matters, not necessarily the stamp. That can be looked up online.

Every entry is evaluated separately. Unlike a VWP or B-2 holder who can visit the US, cross to Canada, then can come back under the existing I-94 (subject to CBP still), a resident of Canada is issued a new I-94 at every entry.

 

Quote

The safest option is definitely go with the IR-1 in my opinion. Don't overstay your visits, visit when you can, and the processing time will go by quickly. Good luck!

Bingo. AOS doesn't make sense here.

Edited January 2, 2020 by geowrian

[Dashinka 23,355]

2 hours ago, Jessjames14 said:

That’s the problem. I will be living with my parents to save money while the petition is being processed. And I am a freelance dental hygienist on my own schedule a different officesThat’s how I am able to take as much time off as I want. 

In general, shorter visits are recommended for couples in a similar situation as yours, and the general rule of thumb is more time outside the US than inside as a visitor (Canadian, B2, VWP, etc.).  So if you are here for six months in a year, you should be out of the US for at least six months before attempting to re-enter otherwise there are tax implications.  One can always try, but CBP does keep records.

 

Good Luck!

Edited January 2, 2020 by Bill & Katya

[Orangesapples 1,954]

5 hours ago, Jessjames14 said:

Yes I was under the impression that once filed we can file for adjustment of status so I can live in the US while everything is being processed (just not work) 

 

Yes, you can. 

[Orangesapples 1,954]

I don't understand why the people in this thread are not trying to actually help you. You're in the US now, you have entered legally. Your intent has already been established at the border and it's no longer a consideration. You can file for AOS and this way you won't have to go back to Canada. You won't be violating any law if you file for AOS tomorrow and you don't have to prove that you didn't have intent to immigrate when you crossed the border. The only problem with filing for AOS now is that you won't be able to leave until you get your advance parole which may take 6 months. If that's a deal breaker, then file for an IR-1. If not, filing for AOS is your best bet. 

[Suze1 366]

@Orangesapples

One can generally apply for AOS if one came for a visit as a visitor, and changed their mind after the fact. That is not the case here.

Yes, she CAN AOS, as long as she now acts like she came without any intention of that visit being a move. But is that really how she came? Really?

Yes, there is a difference between what can be proven and what cannot be, we all understand that.

And yes, one can SAY/SPIN something different from the actual intent, after the fact, we all understand that too.

But is that really what happened? Really?

That is why some people here are not saying stay and adjust status. Because she made it clear TO US that she WAS MOVING when she recently came, irrespective of the fact that she SAID she was going back for Xmas! Based on what she herself said, she moved here, and was going back to Canada for Xmas, or for a doctor's appointment only as a visit, but even if she did that, she lives here now, and saw herself as living here now. All it lacked was that she knew she could not work here without additional authorization.

So, we are all trying to be helpful.

Edited January 2, 2020 by Suze1

[Orangesapples 1,954]

34 minutes ago, Suze1 said:

@Orangesapples

One can generally apply for AOS if one came for a visit as a visitor, and changed their mind after the fact. That is not the case here.

Yes, she CAN AOS, as long as she now acts like she came without any intention of that visit being a move. But is that really how she came? Really?

Yes, there is a difference between what can be proven and what cannot be, we all understand that.

And yes, one can SAY/SPIN something different from the actual intent, after the fact, we all understand that too.

But is that really what happened? Really?

That is why some people here are not saying stay and adjust status. Because she made it clear TO US that she WAS MOVING when she recently came, irrespective of the fact that she SAID she was going back for Xmas! Based on what she herself said, she moved here, and was going back to Canada for Xmas, or for a doctor's appointment only as a visit, but even if she did that, she lives here now, and saw herself as living here now. All it lacked was that she knew she could not work here without additional authorization.

So, we are all trying to be helpful.

Irrelevant. USCIS doesn't care about her intent when she was crossing the border. It will not be brought up at any point. There's a court case about that. Intent is established at the border.

 

She's already here, she might as well file for AOS. There's literally no point in her having to fly back to Canada and having to have a medical completed there. It's a waste of time and resources for her at this point. 

 

OP, you can file for adjustment of status. You can read all the AOS stories on this forum. None were asked about their intent when crossing. Save yourself some headache. 

[NovaDC 270]

2 minutes ago, Orangesapples said:

Irrelevant. USCIS doesn't care about her intent when she was crossing the border. It will not be brought up at any point. There's a court case about that. Intent is established at the border.

 

She's already here, she might as well file for AOS. There's literally no point in her having to fly back to Canada and having to have a medical completed there. It's a waste of time and resources for her at this point. 

 

OP, you can file for adjustment of status. You can read all the AOS stories on this forum. None were asked about their intent when crossing. Save yourself some headache. 

So if she's going to file for the AOS that means she doesn't need to file for the I-130( Petition for Alien Relative)? My friend and the OP are on the same boat.

[Orangesapples 1,954]

2 minutes ago, NovaDC said:

So if she's going to file for the AOS that means she doesn't need to file for the I-130( Petition for Alien Relative)? My friend and the OP are on the same boat.

She still has to file the I-130 but with the I-405 as well. Read the guides here:

 

 

 

[NovaDC 270]

3 minutes ago, Orangesapples said:

She still has to file the I-130 but with the I-405 as well. Read the guides here:

 

 

 

Okay thank you! 

[Suze1 366]

I think you mean this - 

 

Matter of Cavazos:

"(1) While an Immigration and Naturalization Service Operations Instruction binds neither an immigration judge nor the Board, the Service policy manifest therein may appropriately be considered by the immigration judge and the Board in exercising discretion.

(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative or other specified alien who under Operations Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2) and (4) could be granted voluntary departure until invited to appear before a United States consul to apply for an immigrant visa.

(3) Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjust- ment of status is warranted as a matter of discretion."

Edited January 2, 2020 by Suze1