US citizen living abroad with common law spouse and child--what's best route?

[ice-qube 648]

I have a friend here in Canada who is not married but has been with her common law spouse for a few years and they have a child together. I am trying to help her figure out what is the best route for her to take in regards to immigration. My friend is a U.S. citizen. It seems complex because they also have a child.

 

Should she marry first in Canada and then apply for spouse and child green cards using consular process? Or is using the fiance visa route and adjusting status better? Anyone have experience with these sort of scenarios?

 

I think she would like to minimize the amount of time she is apart from them, but also it is important her common law spouse/spouse to be get to work as soon as possible.

[Dashinka 23,238]

Having a child does not make it that much more complicated.  She should investigate if she qualifies to pass along US citizenship to the child which could make that part easy.  Then I would suggest legalizing the marriage and then filing for a spousal visa. 
 

Good Luck!

[ice-qube 648]

Just now, Bill & Katya said:

Having a child does not make it that much more complicated.  She should investigate if she qualifies to pass along US citizenship to the child which could make that part easy.  Then I would suggest legalizing the marriage and then filing for a spousal visa. 
 

Good Luck!

Is it possible she can move to the US ahead of time and file for a fiance visa and marry him that way? Will that speed stuff up?

[Dashinka 23,238]

4 minutes ago, ice-qube said:

Is it possible she can move to the US ahead of time and file for a fiance visa and marry him that way? Will that speed stuff up?

A fiancé visa may be possible, but not really sure how the Common Law marriage impacts that.  Many folks have been denied K1s for simply having an elaborate engagement party, or some form of a religious ceremony, so I suspect that a common law marriage may be “too married” for a K1 visa.  She can also investigate Direct Consular Filing if they legalize the marriage.

 

This thread may be helpful.

 

 

Edited January 8, 2020 by Bill & Katya

[geowrian 22,335]

14 minutes ago, ice-qube said:

I think she would like to minimize the amount of time she is apart from them, but also it is important her common law spouse/spouse to be get to work as soon as possible.

With Canada, expect at least some separation. Montreal is notoriously strict on having US domicile.

How much separation occurs can vary. It could be weeks, or it could be months. Basically, they want to see that the petitioner is actually domiciled in the US.

Affidavit of Support considerations come into play as well - so coming back to the US beforehand to get qualifying income is common. Use of assets or a joint sponsor is another option on that piece (but not to avoid having US domicile).

 

A K-1 visa is not suited for somebody who wants to work shortly after entry. You need to enter the US, marry, then file for AOS + EAD (and AP is suggested). The EAD is the work permit. Expect ~4-7 months at this time. So it's likely anywhere from 5-10 months from entry into the US until being allowed to work. This assumes no issues and your case falls in typical timelines (some people are waiting over 7 months for a work permit after filing).

There's also the potential issue of being "too married" for a K-1.

 

A CR-1 (spousal) visa is suggested.

 

DCF is not generally avaialble for Canada. It is available via exceptional circumstances (as is the case anywhere).

[kris&me 572]

she should also know to file she needs to have completed income tax forms for any Canadian income (most is tax exempt with form 2555)

but she needs to have done this as she will be the sponsor for her bf and/or sopuse

she also needs to establish US residency 

[ice-qube 648]

2 minutes ago, kris&me said:

she should also know to file she needs to have completed income tax forms for any Canadian income (most is tax exempt with form 2555)

but she needs to have done this as she will be the sponsor for her bf and/or sopuse

she also needs to establish US residency 

Yes her idea is to move down to the US ahead of common law spouse and child and start the process.

 

She is looking for the most expeditious route for this, of course; she can compare herself to me, who is married to a US citizen. My wife filed I-130 from here in Canada for me in June 2019. She then moved to the US and I am just going back and forth visiting while I wait, at great expense. I am still waiting and who knows how long that will be. We are at the Nebraska service center and they say wait times for I-130 are 12.5-16 months there!  Is it possible that if she sends the I-130 from *inside* the US and that because they have a kid it would be faster?

[ice-qube 648]

10 minutes ago, geowrian said:

With Canada, expect at least some separation. Montreal is notoriously strict on having US domicile.

How much separation occurs can vary. It could be weeks, or it could be months. Basically, they want to see that the petitioner is actually domiciled in the US.

Affidavit of Support considerations come into play as well - so coming back to the US beforehand to get qualifying income is common. Use of assets or a joint sponsor is another option on that piece (but not to avoid having US domicile).

 

A K-1 visa is not suited for somebody who wants to work shortly after entry. You need to enter the US, marry, then file for AOS + EAD (and AP is suggested). The EAD is the work permit. Expect ~4-7 months at this time. So it's likely anywhere from 5-10 months from entry into the US until being allowed to work. This assumes no issues and your case falls in typical timelines (some people are waiting over 7 months for a work permit after filing).

There's also the potential issue of being "too married" for a K-1.

 

A CR-1 (spousal) visa is suggested.

 

DCF is not generally avaialble for Canada. It is available via exceptional circumstances (as is the case anywhere).

Being in a long term common law relationship is considered "too married" for USCIS, in regards to K-1?

[geowrian 22,335]

3 minutes ago, ice-qube said:

Is it possible that if she sends the I-130 from *inside* the US and that because they have a kid it would be faster?

Domestic filing is domestic filing regardless of where it is sent from. The only delay or speed up would possibly be in mail delivery time.

Having a child does not impact USCIS timelines.

 

If the child is not a USC and needs a visa too, then a separate petition is needed. Normally you would wait for both approved petitions to be at NVC to proceed at that point.

[ice-qube 648]

12 minutes ago, geowrian said:

With Canada, expect at least some separation. Montreal is notoriously strict on having US domicile.

How much separation occurs can vary. It could be weeks, or it could be months. Basically, they want to see that the petitioner is actually domiciled in the US.

Affidavit of Support considerations come into play as well - so coming back to the US beforehand to get qualifying income is common. Use of assets or a joint sponsor is another option on that piece (but not to avoid having US domicile).

 

A K-1 visa is not suited for somebody who wants to work shortly after entry. You need to enter the US, marry, then file for AOS + EAD (and AP is suggested). The EAD is the work permit. Expect ~4-7 months at this time. So it's likely anywhere from 5-10 months from entry into the US until being allowed to work. This assumes no issues and your case falls in typical timelines (some people are waiting over 7 months for a work permit after filing).

There's also the potential issue of being "too married" for a K-1.

 

A CR-1 (spousal) visa is suggested.

 

DCF is not generally avaialble for Canada. It is available via exceptional circumstances (as is the case anywhere).

Can her common law spouse and child lawfully enter the US as a normal visitor from Canada and then can do adjustment of status? Or will they say that is a fraudulent method because a visitor visa is nonimmigrant?

[geowrian 22,335]

1 minute ago, ice-qube said:

Being in a long term common law relationship is considered "too married" for USCIS, in regards to K-1?

Common law marriage in itself should not be treated as legally married (except in limited circumstances with certain countries where common law marriages can also be legalized, IIRC).

That said, the CO must believe both people are "free to marry" for a K-1 visa. Proving you are not married is proving a negative...there's not really a way to do so.

With Canada, it would probably be alright...they aren't particularly known for having issues with being "too married". But a CR-1 really sounds like a better option here anyway.

 

3 minutes ago, ice-qube said:

Can her common law spouse and child lawfully enter the US as a normal visitor from Canada and then can do adjustment of status? Or will they say that is a fraudulent method because a visitor visa is nonimmigrant?

That would be fraud. See INA 212(a)(7)(A)(i)(i).

[ice-qube 648]

4 minutes ago, geowrian said:

Domestic filing is domestic filing regardless of where it is sent from. The only delay or speed up would possibly be in mail delivery time.

Having a child does not impact USCIS timelines.

But--isn't it true that the service center *does* tend to make a difference? So far from talking to a couple of people, and in regards to my own situation, it seems to me (unscientifically, with small size, admitted) that people who apply I-130 from Canada, or at least Toronto, are getting sent to Nebraska service center, which seems to have bad turnaround times.

 

Is it possible that if she was inside the US they would tend to assign her a different service center?

[ice-qube 648]

3 minutes ago, geowrian said:

That would be fraud. See INA 212(a)(7)(A)(i)(i).

Ya that is what I thought. Hence why I also chose consular route in my own situation.

[geowrian 22,335]

10 minutes ago, ice-qube said:

But--isn't it true that the service center *does* tend to make a difference? So far from talking to a couple of people, and in regards to my own situation, it seems to me (unscientifically, with small size, admitted) that people who apply I-130 from Canada, or at least Toronto, are getting sent to Nebraska service center, which seems to have bad turnaround times.

 

Is it possible that if she was inside the US they would tend to assign her a different service center?

There certainly are differences in average processing times across SCs.

How they assign service centers is a black box, but it is not based upon residence. Nobody has provided any precise rules for how they currently determine what SC gets a case.

Nebraska tends to get the most.

Edited January 8, 2020 by geowrian

[Boiler 43,430]

Strongly suggest she joins and does her own research, sadly secondhand information has a tendency to produce complications and it seems that your knowledge is limited so probably not helping.