Which visa? Petitioner and beneficiary both living in Canada

[EscapePlan 0]

I'm an American citizen (by birth) and have been in Canada since 2013 (I have dual citizenship as of 2019). I met my Canadian fiance here in Toronto. We are looking to move to the States and reside there permanently. 

 

I have pored over the information on the different spousal visas, but they all seem to be missing the information of what do I do if I, the petitioner, am not residing in the States, and have not for quite some time? Do I *have* to move back alone first before applying? I guess the main question I am asking here is which visa, if any, will allow me to apply from Canada and stay with my fiance until we move to the States together. From what I have gathered, DCF is not really a thing anymore, so that option is out. (I am willing to get married in Canada beforehand, if K1 is not the best option for my situation). 

I'd also like some guidance on establishing domicile (if this is even necessary depending on which visa I choose). My life has of course been in Canada for the last 8 years and I don't have any family ties in the States. We would be starting over completely together in a new state. My job is fairly easily transferrable and I don't think finding an offer would be too hard. My fiance has a job in Canada that he could potentially work from home in the States until he finds a job in America- is this even allowed? 

 

Thanks so much for any help provided. I appreciate it. 

[aaron2020 11,651]

There are two paths.

 

K-1 fiance visa or CR-1 spousal visa.

 

With the K-1, he would enter the US and have to apply for a green card.  This can take up to 2 years.  It will take 9-12 months to get an EAD to legally work and AP to legally leave the US without abandoning the entire process.  There are big cons to this path.

 

A CR-1 visa holder enters the US and automatically gets a green card.  This process can take up to 2 years.

There is no quick way to immigrate to the US.

 

The US Consulate is really hard on domicile.  You may have to move first by yourself.

There is also the financial sponsorship issue with the I-864 Affidavit of Support.  Income that will stop when you move back to the US will not count.  You may need a Joint Sponsor.

In addition, have you been filing US tax returns on your worldwide income?  You will need to file US tax returns for the last 3 years.  You are unlikely to owe anything.  

[EscapePlan 0]

4 minutes ago, aaron2020 said:

There are two paths.

 

K-1 fiance visa or CR-1 spousal visa.

 

With the K-1, he would enter the US and have to apply for a green card.  This can take up to 2 years.  It will take 9-12 months to get an EAD to legally work and AP to legally leave the US without abandoning the entire process.  There are big cons to this path.

 

A CR-1 visa holder enters the US and automatically gets a green card.  This process can take up to 2 years.

There is no quick way to immigrate to the US.

 

The US Consulate is really hard on domicile.  You may have to move first by yourself.

There is also the financial sponsorship issue with the I-864 Affidavit of Support.  Income that will stop when you move back to the US will not count.  You may need a Joint Sponsor.

In addition, have you been filing US tax returns on your worldwide income?  You will need to file US tax returns for the last 3 years.  You are unlikely to owe anything.  

Thanks. I see you said they are strict on domicile, but am I still theoretically able to apply for these visas living in Canada? Is there an actual requirement that I must live in the States for X amount of time first? 

 

I have not been filing US returns, which I totally own up to. I will get those ducks in a row and file before I take any next steps of applying for anything. 

[aaron2020 11,651]

8 minutes ago, EscapePlan said:

Thanks. I see you said they are strict on domicile, but am I still theoretically able to apply for these visas living in Canada? Is there an actual requirement that I must live in the States for X amount of time first? 

 

I have not been filing US returns, which I totally own up to. I will get those ducks in a row and file before I take any next steps of applying for anything. 

You can start the process from anywhere in the world. 

There is no requirement that you live in the US for X amount of time first.  At his visa interview, the US Consulate may require that you show you have a US domicile.

 

Your US tax returns are not needed for a year or more.  

 

Get marry and start the CR-1 process now.  It's the better way to do it.  No one ever has said they regret doing the CR-1 and should have gone with the K-1.  Meanwhile, get your US tax returns taken care of, figure out a way to establish a US domicile, and get your financials in order to meet the I-864 requirements.  

[EscapePlan 0]

8 minutes ago, aaron2020 said:

You can start the process from anywhere in the world. 

There is no requirement that you live in the US for X amount of time first.  At his visa interview, the US Consulate may require that you show you have a US domicile.

 

Your US tax returns are not needed for a year or more.  

 

Get marry and start the CR-1 process now.  It's the better way to do it.  No one ever has said they regret doing the CR-1 and should have gone with the K-1.  Meanwhile, get your US tax returns taken care of, figure out a way to establish a US domicile, and get your financials in order to meet the I-864 requirements.  

Why only my tax returns from the last 3 years? Should I go ahead and file from 2013 on? 

 

I will look more into the CR-1 path then, thank you so much.

[aaron2020 11,651]

3 minutes ago, EscapePlan said:

Why only my tax returns from the last 3 years? Should I go ahead and file from 2013 on? 

 

I will look more into the CR-1 path then, thank you so much.

For immigration purposes, you only need the last 3 years of tax returns.   So focus on getting these done.

You should file all your late tax returns.

[SalishSea 17,916]

49 minutes ago, EscapePlan said:

My fiance has a job in Canada that he could potentially work from home in the States until he finds a job in America- is this even allowed? 

Not without an EAD, so that is a major drawback to the K-1 path.

 

As far as having a GC and working for a Canadian company, there are some tax and other implications.  Normally we recommend people seek specialized tax advice in this situation.

 

But like aaron said, you're a couple of years away from that phase.  There has been a big (even pre-COVID) at the US consulate in Montreal that they are slowly wading through.

[carmel34 3,639]

Best path forward is to file an I-130 petition for a spousal visa.  That can be done now, online, from anywhere in the world.  You can stay in Canada with your spouse while waiting for the petition to be approved, which could take up to a year.  Once the petition is approved and arrives at the NVC, you should at that point make plans to move to the US alone, to find a job and establish a US domicile, for at least six months before the visa interview, in my opinion.  Montreal is very strict on US domicile.  I also recommend that you do more research on the CR-1 process and visit the Canadian forum to read about others' experiences with US domicile.  You will have a greater chance of success if you plan on living in the US for at least six months prior to your spouse's visa interview.  Most spousal visas from Canada are taking around 2 years from filing the initial petition to the visa interview, so you can be together for a year and a half, then separated for six months near the end.  And you can always go back to Canada to visit during those six months, and your Canadian spouse can visit you in the US.  Good luck!

Edited January 5, 2022 by carmel34

[mam521 2,102]

The Montreal consulate seems to be making a concerted effort to get somewhat caught back up with the IR/CR visas.  Fill out your timeline and come check out this thread if you want more info.  Please make sure to read the FAQ's and take a look at the spreadsheet (link in signature), then ask questions.  Or lurk for a while...many do

 

 

Since your fiancé is used to working, he'd be miserable on a K1, waiting for work authorization, unable to travel outside of the US.  Get married and do the CR1.  

[JeanneAdil 6,539]

you need to know about the foreign tax exemption according to tax treaty 

as with the returns you will be filing the foreign is tax exempt to a certain degree by filing form 2555 with taxes

as Canada is on the tax treaty list

 

https://www.irs.gov/businesses/international-businesses/united-states-income-tax-treaties-a-to-z

 

If you are a U.S. citizen or a resident alien of the United States and you live abroad, you are taxed on your worldwide income. However, you may qualify to exclude your foreign earnings from income up to an amount that is adjusted annually for inflation ($105,900 for 2019, $107,600 for 2020, $108,700 for 2021, and $112,000 for 2022). In addition, you can exclude or deduct certain foreign housing amounts.

 

https://www.irs.gov/individuals/international-taxpayers/foreign-earned-income-exclusion