Do I need to currently reside abroad to qualify for DCF

[AmeriCanadian91 3]

My spouse (UK Citizen) and I (US Citizen) are residents of Canada. I'm a PR and he's a temporary resident. On June 26, I emailed the Montreal Consulate requesting approval for DCF, on the basis that we reside abroad and I got a job offer in the US that began in 2-3 months, and they replied asking for some information and documentation. I replied to that email and never heard back, but figured it would just take a while. Fast forward 2.5 months and I moved to the US, and I just began my job this week. I tried sending them a new email, thinking they won't respond to the old one, and I got the same response, asking for information. It was then that I noticed I had to reply with a different subject line in the email. I did so and finally got a response the next day, BUT was told the process is only for those that reside in Canada. I don't think they went through the review process, I believe they just saw my comment saying I'm now in the US and assumed I was never a Canadian resident. I replied back clarifying my status and stating that I requested this months ago...should that be good enough? Or am I no longer eligible to apply for DCF for my spouse? I thought it would be HELPFUL for me to have already moved back to the US, based on what I've read here stating Montreal is strict about establishing domicile. What should I do at this point??

[arken 4,197]

You are residing in the US at present. Even if they were to follow up with your initial request, DCF is no longer applicable to you.

[Crazy Cat 41,982]

12 minutes ago, AmeriCanadian91 said:

My spouse (UK Citizen) and I (US Citizen) are residents of Canada. I'm a PR and he's a temporary resident. On June 26, I emailed the Montreal Consulate requesting approval for DCF, on the basis that we reside abroad and I got a job offer in the US that began in 2-3 months, and they replied asking for some information and documentation. I replied to that email and never heard back, but figured it would just take a while. Fast forward 2.5 months and I moved to the US, and I just began my job this week. I tried sending them a new email, thinking they won't respond to the old one, and I got the same response, asking for information. It was then that I noticed I had to reply with a different subject line in the email. I did so and finally got a response the next day, BUT was told the process is only for those that reside in Canada. I don't think they went through the review process, I believe they just saw my comment saying I'm now in the US and assumed I was never a Canadian resident. I replied back clarifying my status and stating that I requested this months ago...should that be good enough? Or am I no longer eligible to apply for DCF for my spouse? I thought it would be HELPFUL for me to have already moved back to the US, based on what I've read here stating Montreal is strict about establishing domicile. What should I do at this point??

You have to apply for DCF (submit the I-130, etc) while you resided in Canada.  You now reside in the US.  You now must follow the normal spousal visa process.  That is how I see it.  Good luck.

Edited September 15, 2021 by Crazy Cat

[Crazy Cat 41,982]

20 minutes ago, AmeriCanadian91 said:

My spouse (UK Citizen) and I (US Citizen) are residents of Canada. I'm a PR and he's a temporary resident. On June 26, I emailed the Montreal Consulate requesting approval for DCF, on the basis that we reside abroad and I got a job offer in the US that began in 2-3 months, and they replied asking for some information and documentation. I replied to that email and never heard back, but figured it would just take a while. Fast forward 2.5 months and I moved to the US, and I just began my job this week. I tried sending them a new email, thinking they won't respond to the old one, and I got the same response, asking for information. It was then that I noticed I had to reply with a different subject line in the email. I did so and finally got a response the next day, BUT was told the process is only for those that reside in Canada. I don't think they went through the review process, I believe they just saw my comment saying I'm now in the US and assumed I was never a Canadian resident. I replied back clarifying my status and stating that I requested this months ago...should that be good enough? Or am I no longer eligible to apply for DCF for my spouse? I thought it would be HELPFUL for me to have already moved back to the US, based on what I've read here stating Montreal is strict about establishing domicile. What should I do at this point??

After reading your previous posts, where is your spouse right now? 

Edited September 15, 2021 by Crazy Cat

[SteveInBostonI130 3,468]

1 hour ago, AmeriCanadian91 said:

 I did so and finally got a response the next day, BUT was told the process is only for those that reside in Canada. I don't think they went through the review process, I believe they just saw my comment saying I'm now in the US and assumed I was never a Canadian resident. I replied back clarifying my status and stating that I requested this months ago...should that be good enough? Or am I no longer eligible to apply for DCF for my spouse? I thought it would be HELPFUL for me to have already moved back to the US, based on what I've read here stating Montreal is strict about establishing domicile. What should I do at this point??

Unfortunately, you do not qualify for DCF.

 

Part of the DCF process is for the embassy to request to USCIS to allow the embassy to take over handling the I-130 application because the USC is residing in the foreign country.

 

Because you are currently in the US, USCIS will handle the petition.

 

Another part of DCF is to assist the USC to stay together with his/her family and move together to the US.  You are already in the US and therefore that part no longer applies to you.

Edited September 15, 2021 by SteveInBostonI130
Clarification

[AmeriCanadian91 3]

On 9/15/2021 at 8:06 AM, Crazy Cat said:

After reading your previous posts, where is your spouse right now? 

Sorry for the late reply...we're both in California now. We couldn't afford to pay for rent and everything at 2 homes. He would be able to work, but he was just earning $25/hr, and our costs there included $1550 rent, and $600 car payment. It would've been too expensive and we hadn't been approved for DCF yet and didn't wanna chance it (which is convenient now, since we wouldn't have qualified after I left anyway).

[AmeriCanadian91 3]

On 9/15/2021 at 9:45 AM, SteveInBostonI130 said:

Unfortunately, you do not qualify for DCF.

 

Part of the DCF process is for the embassy to request to USCIS to allow the embassy to take over handling the I-130 application because the USC is residing in the foreign country.

 

Because you are currently in the US, USCIS will handle the petition.

 

Another part of DCF is to assist the USC to stay together with his/her family and move together to the US.  You are already in the US and therefore that part no longer applies to you.

So now we have the option of Consular processing or AOS, correct? Can we legally apply for AOS? I'm concerned with the whole immigrant intent aspect of that. When he entered the US, his intent was to help me move and settle into the new home (that would've been a massive undertaking on my own), then leave, either back to Canada to complete his PR application (medical, interview, etc.) or to his family home in the UK if the PR application took longer than his 90 day visa. He would've just waited in the UK for a month or so until he was able to complete his DCF stuff in Canada and return to USA.

 

That being said, how is immigrant intent defined? I mean, technically his intent was always to immigrate to the US, obviously, because he's my spouse. But he never intended to adjust status or overstay his visa. He was planning to leave the country before receiving his green card. Based on that, did he have immigrant intent when he entered the country? We prefer to apply for AOS so we could stay together and avoid the issue of paying for 2 homes/cars/goods. And now that he doesn't have a job, who knows if he'll even be able to find work to support himself in the UK for a year? He definitely can't stay with his family for free for the whole process which could take over a year! They barely have enough space for him as it is.

 

Lastly, I read something about the 30/60 day rule which is now replaced by the 90 day rule. Some people say we should wait past the 90 days (which would mean overstaying his visa) before applying. Others say the 90 day rule doesn't apply to spouses of US Citizens. Which is it?

[millefleur 5,047]

54 minutes ago, AmeriCanadian91 said:

Sorry for the late reply...we're both in California now.

36 minutes ago, AmeriCanadian91 said:

So now we have the option of Consular processing or AOS, correct?

If you're both in California together already, there's no option for DCF. DCF only qualifies if the USC lives abroad in the same country as the spouse (and meets the additional requirements on top of that.) The USC must be living abroad with proper residency in that country at the time of filing to qualify for DCF. Forget the DCF choice, it's been long gone for you. I understand it's confusing but it just doesn't apply in your case since you live in the US.

 

36 minutes ago, AmeriCanadian91 said:

When he entered the US, his intent was to help me move and settle into the new home (that would've been a massive undertaking on my own), then leave,

Officially, intent is determined at the border by the CBP officer. But obviously it's a two way street: the foreign national also had their own intentions when they entered the country, so it's possible to fool CBP and lie about intent when they are actually planning to stay and adjust, that is considered fraud. Based on what you said, if he had no intent to stay and adjust when he entered, then you should be fine. As long as he did lie about his intentions, then he's cleared to stay and adjust.

 

36 minutes ago, AmeriCanadian91 said:

 

Lastly, I read something about the 30/60 day rule which is now replaced by the 90 day rule. Some people say we should wait past the 90 days (which would mean overstaying his visa) before applying. Others say the 90 day rule doesn't apply to spouses of US Citizens. Which is it?

I recommend heading over to the AOS forum for more details on this.

https://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-amp-tourist-visas/

Edited October 15, 2021 by millefleur

[AmeriCanadian91 3]

4 minutes ago, millefleur said:

If you're both in California together already, there's no option for DCF. DCF only qualifies if the USC lives abroad in the same country as the spouse (and meets the additiona requirements on top of that.) The USC must be living abroad with proper residency in that country at the time of filing to qualify for DCF. Forget the DCF choice, it's been long gone for you. I understand it's confusing but it just doesn't apply in your case since you live in the US.

 

Officially, intent is determined at the border by the CBP officer. But obviously it's a two way street: the foreign national also had their own intentions when they entered the country, so it's possible to fool CBP and lie about intent when they are actually planning to stay and adjust, that is considered fraud. Based on what you said, if he had no intent to stay and adjust when he entered, then you should be fine. As long as he did lie about his intentions, then he's cleared to stay and adjust.

 

I recommend heading over to the AOS forum for more details on this.

https://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-amp-tourist-visas/

Yes, it's unfortunate but after reading the prior comments and doing research, I realized we couldn't do DCF so we're deciding between our other options: Consular Processing (not DCF) and Adjustment of Status. We'd like to go with AOS, which sounds like we can do. My husband DID have intent to immigrate, but NOT through staying and adjusting status. I just needed to clarify that it was fine. And no, he didn't lie to CBP, he told him he was visiting with his wife, which was true at the time.

[millefleur 5,047]

4 minutes ago, AmeriCanadian91 said:

Consular Processing (not DCF)

What do you mean by consular processing?

 

 

[millefleur 5,047]

@AmeriCanadian91 Sorry, I suppose what you mean by "consular processing" is the "normal way" where the applicant waits outside the US for their petition and visa in their home country. You're right, that is still an option, we call it the spousal visa process here on VJ.

 

That is still an option. If your spouse wants to return to their home country and then re-enter with a spousal visa instead of doing AOS, you can absolutely go that route instead. Your spouse would just have to wait outside the US during that time (visiting is allow, but living in the US is not.) Then the embassy processes the final visa, I guess hence the name "consular processing." Short answer is: if you want to remain together in the US and don't mind waiting for the GC, just do AOS. If your spouse wants to go back to the UK or Canada, then they need to wait it out in that country until they get the proper immigrant visa.

 

AOS has it's own downsides, restricting travel abroad and work permission, so just keep that in mind.

Edited October 15, 2021 by millefleur

[SteveInBostonI130 3,468]

From what you have stated, you can AOS.

 

The downside is that it will take about 6-10 months before your husband can work or even travel outside the US.  If he leaves the US before he gets his AP (advanced parole, which you can and should apply for at the same time as AOS), his AOS application would be deemed abandoned and you can only proceed with the normal spousal visa process.

[AmeriCanadian91 3]

3 minutes ago, SteveInBostonI130 said:

From what you have stated, you can AOS.

 

The downside is that it will take about 6-10 months before your husband can work or even travel outside the US.  If he leaves the US before he gets his AP (advanced parole, which you can and should apply for at the same time as AOS), his AOS application would be deemed abandoned and you can only proceed with the normal spousal visa process.

Thanks, that's good to know.

 

It's unfortunate that he'll have to wait that long, but our reality is that it will likely cost us less for him to stay here and not work than it would for him to get a temporary job in the UK, since we'd have to pay for several flights to visit each other, a second rental apt. with deposit, another car, food, furniture, etc. Not to mention, cost of living is ridiculous in the UK and where we currently live in California. He's still in the process of getting his pilot's license, so he's just been working entry-level jobs, and likely wouldn't bring in much money. So we couldn't afford for him to leave.

[Ryan H 3,813]

**Thread locked in favor of another thread linked below.**

 

https://www.visajourney.com/forums/topic/772570-sponsoring-a-new-spouse-merged-topics/