Marrying an American

Hello, Quick question. I have read a lot of useful info on this site and on the Dept.of Homeland Security web site. I do have one question. Just to confirm. I intend on marrying my American boyfrie...

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Canadian Expatriate and Travellers Forum Index -> Canadians in the USA -> US Visas and Immigration

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Chiquitabanana
Junior Member

Joined: 08 Aug 2008
Posts: 14
Location: Toronto

Posted: Fri Aug 08, 2008 8:16 am

Hello,

Quick question. I have read a lot of useful info on this site and on the Dept.of Homeland Security web site. I do have one question. Just to confirm. I intend on marrying my American boyfriend in September. I will be returning to Canada a couple weeks after that. I do plan on then returning sometime in December to stay for good and file the k-3 when I come back. Is this Okay? Please advise. Also I will be bringing my son with me. All I need is the custody papers which shows that I have been granted full custody right? Can my "future husband adopt him? If so, does anyone know the process. Would it be done here in Canada or in the US?

Reba
Moderator

Canuck in NC

Joined: 16 Jul 2004
Posts: 1495
Location: North Carolina

Posted: Sat Aug 09, 2008 6:19 am

Ok, I'm a bit confused by your post.

Here's how I read your expected time-line of events:

You said you're getting married in September in the US, but returnign to Canada in a couple of weeks. Correct?

Then you said you plan to return to the US for good in December, and then file for a K3 when you come back.

File for K3 when you come back to where? To the US?

Sorry, you can't do that. That's not how the K3 works. I wouldn't even bother with the K3 anyhow, they're taking too long these days. If you live in Eastern Canada (Ontario and over) CR1 is the way to go.

To ge a K3, immediately after you get married, your then husband should send in the I-130 petiiton for alien relative, one for each you and your son. BUT you have to remain in Canada to wait for it to process!!!! You cannot live in the US and wait for either a K3 or CR1 petition to be completed.

Once the I-130 is approved (takes a few months) then you'll get a bunch of other paperwork in the mail with instructions on how to go about applying for the CR1 visa.

Yes, your new husband can adopt your son, IF your son's biological father has no objections. The adoption can be done in either the US or Canada. You'll need an adoption lawyer, look them up for your area.

For information on marriage based immigration to the US see http://www.visajourney.com
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Steven
CanuckAbroad VIP

Joined: 28 Sep 2007
Posts: 1662
Location: Calgary

Posted: Sun Aug 10, 2008 8:42 pm

I think I understand, er, you want to marry, apply for K-3 when you come back and then visit the US while you are waiting?

Technically you can do it the way you're suggesting, but the conversation with USCIS will get interesting if you tell them you're visiting your husband.

And your child would find it difficult to enroll in school, you'd have no SSN or anything like that so my advice would be to wait until the K-3 is actually approved before entering with any intention of staying for a lengthy period of time.

Or better yet do what Reba suggests, get him to file an I-130 while you're waiting as it will probably be quicker than K-3 (few months as opposed to best part of a year).
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Steve.

Reba
Moderator

Canuck in NC

Joined: 16 Jul 2004
Posts: 1495
Location: North Carolina

Posted: Mon Aug 11, 2008 3:09 am

no, actually I-130s for CR1 visas are taking about a month or 2 longer than K3s currently. But they are the less expensive and better visa to get, because its actually permanent residency (green card), whereas K3 is non-immigrant, so one is required to adjust status once you arrive, for a further fee of $1010 and you can't work or even get a SSN or driver's license for 3 or 4 months untl you get EAD.

With CR1, you automatically get the SSN within a couple of weeks after arrival (if you check the right box on the DS forms of course), and its work authorized.
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Chiquitabanana
Junior Member

Joined: 08 Aug 2008
Posts: 14
Location: Toronto

Posted: Mon Aug 11, 2008 7:52 am

Thanks for all the info. Just to clarify. i would like to marry in September in the US. I would then come back to Canada for a few months to move my belongings into storage. BLAH BLAH! Then return to the US. Once there I would file the I-130 ? Or what documents I need. I don't have an issue with my son enrolling in school as he is only 16 months old. My question is once in the US which documents do I need to file? When I looked on Visa Journey it does say I can file from within the US. Please advise
Thank you

Steven
CanuckAbroad VIP

Joined: 28 Sep 2007
Posts: 1662
Location: Calgary

Posted: Mon Aug 11, 2008 9:34 am

You have to already legally be in some sort of status in the US to file from within the US. The usual BS is to enter in B-2 visitor status and then apply for AOS but this can cause problems at the interview because you lied about only being a visitor when you entered.

He files the I-130, you wait for approval, you do the interview, get the visa and then you enter. Which will take most of a year.

You can visit the US (up to six months) while you wait for approval but USCIS aren't going to like it if you say you're visiting your husband. Legally however it is possible, but have some good proof that you intend to leave.

Might be worth bearing in mind the tax situation too, if you do the I-130 route as soon as you enter the US you become liable to US tax on your worldwide income. Have a read of: http://www.cra-arc.gc.ca/E/pub/tg/p151/README.html and also a read of the first few pages of IRS publication 519.

Saves a lot of tax paperwork if you can do the move on January 1st. With a K-3 you have a bit of fudge room because you can time your AOS but with the I-130 the date you physically enter is the relevant day. But I doubt it's worth $1,010 to avoid the paperwork, Reba's suggestion is the better one.

Furniture in storage can be construed as a "residential tie" according to caselaw.
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Reba
Moderator

Canuck in NC

Joined: 16 Jul 2004
Posts: 1495
Location: North Carolina

Posted: Tue Aug 12, 2008 4:22 am

Actually, from my own experience, she has to declare her foreign income to the IRS in the tax year that they get married, whether or not they're actually living together in the US. If he income is under the $85,000 or whatever it is, its just one form really I think, plus the W7 for to get the ITIN to file as married.

Chiquitabanana, you won't be able to return to the US in December in order to live and apply for a green card unfortunately. You can only adjust status to stay if you get married on a whim and then don't leave. To enter the US under visitor status and then try to apply to adjust, is considered fraud and if your application is denied, you will be put under immediate deporation. And likely would be barred from re-entering for several years, or life, depending on their mood.

As I mentioned before, your best option is to immediately file the I-130 as soon as you can after you're married, then you return to Canada and wait out the process for the CR1 visa. Yes, its a year apart from your husband, but couples do it all the time (my husband and I didn't get to live together for 3 years after our wedding because of immigration crap). But it is the legal way to go about it, and the safest in the end.
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Steven
CanuckAbroad VIP

Joined: 28 Sep 2007
Posts: 1662
Location: Calgary

Posted: Tue Aug 12, 2008 10:50 am

Yeah, but you can fudge it slightly because technically K-3 is a non-immigrant visa to begin with. Having a US husband is obviously a residential tie but we're talking about moving residency and tax courts give you a reasonable amount of time to do the move (based on the circumstances), so it's possible to move your tax home at a slightly different date than the date you entered, but not massively. If you enter as an LPR though, the date you entered is the date the IRS will use, period.

For example, say she entered as K-3 in September and applied for AOS in January. Doesn't meet the substantial presence test, only residential tie is her husband, she's still waiting for an EAD on her I-765, there wasn't an AOS in process until January, so all she has to do is file a T-1 for the last year she was in Canada and a 1040NR for that year in the US as she was non-immigrant until January.

If she enters as an LPR in September, she has to file a dual-status return for that year i.e. 1040NR for the portion in Canada and a 1040 for the portion in the US, and a T1 for the portion she was in Canada and potentially a non-resident T1 for the portion she was in the US (if she still has Canadian source income). Plus the personal exemptions have to be pro-rated for the number of days she was in each country. I.e. four weird tax returns for one year.

From a tax standpoint it's harder to enter as an LPR unless you can time it for January 1st.

But I have to say for a savings of $1,010 I'd be willing to file four weird tax returns rather than two regular ones. I doubt H&R Block could do that well.
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Steve.