K-3 visa for immigrating to USA

Hello,

I need some clarification and help to understand this lovely process. Our situation is, I am an American Citizen currently on a Visitors Visa in Canada. My husband is a Canadian Citizen and we have been married (not for purpose of immigration!) for 9 months. We had been trying to save money to apply for my permanent resident status in Canada when we decided that we wanted to move to the States. I know I have to re-new my visitors visa 3 months before it's to expire and I am doing that tomorrow.
My questions: 1. I know I need to first start with the I-130 petition but my problem is that I am not living in the States yet so I have no address. Can he come to the States with me while we find a place to live and then apply?
2. I don't have a work permit so I haven't been working for the last 11 months (he has been supporting the both of us) but I am still filing my tax return for the beginning of 2008. I understand I need the last 3 years of tax returns to prove support? Also, I don't have a job lined up yet but I am confident that I will find on once we are settled. Will this be a problem when we enter immigration to the US for the first time?
3. After approval and reciept of I-797, I understand we can then apply for the k-3 or will he automatically be turned in to a k-3 from visitor? Also, since we got married in Canada, we will have to fly back to Canada and visit a US Consulate for interview and Visa? I am wondering how that that will take because we are planning on moving to Hawaii which means that we will have to fly which becomes costly. I know he needs a medical exam and interview, could this be accomplished in a week's visit?
4. I am intending to go to shcool once we are in Hawaii and working full-time. When would he be able to apply for 1-765?

Thank you so much for any help!

You can't file from Canada because you have to be a Canadian LPR to do that. As a visitor you would need to return to the US and file from there to sponsor his entry and file an I-130 and all the other bits of paperwork with the relevant USCIS service centre.

He can visit you in the US while the application is pending, but he would need iron-clad evidence of intention to leave to be able to do this as CBP will obviously think he's intending to immigrate.

You may have a problem filling in I-864 if you don't have income. Bear in mind as a US citizen you must file a 1040 every year regardless of where you live, but if you're below the reporting limit you don't have to, but that means you cannot show proof of income to a sufficient degree. He generally can't use his income level either except in the rare event he's with the same employer in the same job after entering.

I wouldn't bother with the K-3/I-765 malarky, go for CR-1 which means he gets permanent resident status immediately on entering and you don't waste a pile of money on AOS.

Go to www.visajourney.com as there is far more information on their website.

www.visajourney.com

Thank you both for your help. I think we will go for the CR-1 instead fo the K-3. I have been reading through visajourney info and looking on the US immigration site about forms and what not, but I am still getting conflicting information on one thing. When we are ready to leave Canada, is he allowed to come as a visitor with me or does he have to wait in Canada until I get settled and can apply for the I-130? I am not concerned about the processing times because I will be able to support us, I just want to make sure he can come with me. Thanks again guys!

-- Wed Apr 08, 2009 1:10 pm --

Sorry, I just re-read Steven's comment about him being able to visit. But he can't be a visitor with the intent to immigrate?

It's entirely at the discretion of CBP at the border, if you're not a Canadian LPR they're going to be suspicious, just be honest with them and explain the situation if they start asking questions. There is no legal reason why he can't visit you but it boils down to what they think his intent is.

What he really needs though is solid evidence he intends to leave, i.e. minimal luggage (no wedding pictures), proof of independent funds (bank statement with Canadian address or a letter from the bank manager), return ticket and most importantly proof that he lives in Canada and has an abode there he has no intention of abandoning as that is legally required, such as a lease/rental agreement.

Sorry to be a pest about this Steve but I think I might need to clarify my question. He does have the intent to immigrate to the US with me. I am prepared to be financially responsible for him but I was hoping there was something similar in the States as what I am on right now in Canada. The day after we were married, we went to the border and they issued me a visitor's visa so that I could stay with my husband in Canada but no be able to work while we applied for my permanent residency.
Another question would be that I technically do still have an address in the States at my mom's house. It's the same on my license and all my mail goes there. I wasn't technically planning on living there because we are trying to get to Hawaii (my mom is in WA) but I was wondering if that might be able to speed up the process? Or do I physically have to be present in the US when I send in my I-130? Thank you agian Steve and I am sorry if I am repeating myself. I really do appreciate it!

No, he cannot go to the US to wait out the entire process. He can only visit for short stints. There is not allowable extended visitor status for Canadians with spouses in the US as there is in Canada unfortunately. He will have to remain in Canada basically until his CR1 visa is granted.

Basically, you have to permanently reside in the US, he has to permanently reside in Canada. You can visit each other in either country during the process.

That is absolutely ridiculous! But thank you guys for helping me understand that. I guess I will just have to figure something out... Do you know how long he is allowed to stay in the States before having to go back to Canada? Or how long he would have to be in Canada for that matter before he could come to visit me again? Grrr. This looks like it's going to be expensive for flights. Thanks again you guys. It's been really helpful.

Legally it's 183 days max (in a year), but based on the comments I've seen on here CBP are very iffy about letting a Canadian in who is married to a US citizen who does not have status in Canada, because they assume (usually correctly) the person has the intention to immigrate. So it basically boils down to what CBP will allow. Like I said, proof that it's only a visit is important.

I think both HI and WA use the California Service Centre, which seems to be okay in terms of processing speed, they have a six-month maximum processing time for these applications and they seem to keep to it, so you shouldn't have a major problem. The aggravation is having to go to Montréal for the interview.