Canadian in US - Filed I-130 Petition (Spouse) - Need advice

I'm a Canadian citizen and my husband is an American by birth. We've been living in Asia for a number of years so when it was time to return we decided to settle in the US. I arrived as a visitor on Jan 15 and stayed for 2 months. This is my second visit, arriving on April 20 and technically can stay another 4 months. As I understand it a Canadian can be a visitor for a total of 6 months per year under the US visa waiver program. We filed the I-130 Petition and we received a receipt dated May 1. I'm panicking as I've just read online that I should be waiting in Canada until the I-130 is approved and then apply for a K3 visa which would allow me to enter the US and wait until my permanent resident visa is approved. I'm confused... should I leave the US?? Am I in the US illegally? Help!! Anyone have any advice for me.

First, don't bother with the K3 at all, its a waste of paper and time these days.

Second, yes, you can stay in the US for up to 6 months, however the processing the the I-130 and subsequent CR1 spousal visa will take much longer than that. Usually about 1 year, so unfortunately, yes you will have to return to Canada for the duration of the wait. Your interview will also be in Canada at the consulate in Montreal.

For immigration info to the US see http://www.visajourney.com You'll specifically want to see the CR1 forum, and Guides. ALL the information you need is there, including step by step instructions and experienced community.

Many thanks Reba for the advice and speedy response!!!

I'm a bit confused.....Did you apply for an I485? If so, why does she need to go back to Canada??

Because she's a Canadian, can't apply for AOS in this situation because they were married outside the US. She entered as a visitor who was already married to an American, and CBP generally only allow that if they believe you're going to leave, as visitor status requires an abode abroad and non-immigrant intent.

I suppose you could take a shot at doing AOS because they seem to be a bit more flexible when it's a Canadian, but then you're taking a gamble.

It shouldn't take a year though to get CR-1/IR-1/K-3, because applications have dropped off, usually around seven or eight months at present.

Like Reba says, www.visajourney.com is a better site for these sorts of discussions.

A much quicker route would have been to apply via direct consular filing before you left Asia, but hindisght is always 20/20. Now the only option is CR1 unfortunately.

Hi, I'm a Canadian and my wife is US citizen. We married in US a month ago and filed I-130 and got NOA1 (receipt) in just a week after we sent out the I-130 package! My questions are:

Our file is at California Center and I noticed their target of processing time is the same for I-130 and I-129F: Six months! Is that why you recommend CR1 and not to bother with K3 at all?

I've been in US for about three months now and we haven't got any answer whether I'm eligible to just change status (AOS) without having to go back to Canada. I'm wondering what's likely to happen? Can I travel out of US and come back before I get I-130 approval?

Thanks for any input!!!

Nahn

The reason not to go for a K visa is because it must be followed by AOS which takes longer and costs more money.

If you're in the US legitimately as a B visitor and really did spontaneously get married then you can apply for AOS, this is about the only situation in which applying for AOS does make sense because it means you don't have to leave the country.

If you're married to a US citizen then visiting them is always difficult because CBP will probably think you have immigrant intent if they reside in the US.

An I-130 based application is unlikely to be approved in six months and the visa interview takes place in Montréal usually so you're going to have to leave at least for awhile.

They got married in Asia several years ago is the problem though, not on this trip to the US.

Unfortunately, because you did not include the I-485 with the I-130 and you sent it to the service centre rather than the Chicago lock-box, you're stuck with the CR1 process now, and won't be able to adjust status. I don't think you can change options now, you would have to cancel the existing I-130 (with no refund of fees paid) and re-submit another one *with* the AOS pacakge and new fees of $1010.

With your current processing situation, you will have your interview in Montreal, so you will at some point *have* to leave the US and return to Canada. You will have to get your medical exam done in Canada, and will have to get Canadian police certificates, as well as from whatever cities you lived in in Asia, and your Canadian long form birth certificate, all before your interview. Some of these documents may take a while to gather, so you probably want to get working on that now. The medical however, you cannot have done until you have your interview schedule letter. Most panel physicians won't even schedule you in without the interview file #.

Again, see Visa Journey for ALL the information you will need