TD visa for children

sofus72
New Member



Joined: 18 Jul 2008
Posts: 8
Location: Calgary, AB

Posted: Mon Aug 18, 2008 5:02 pm

 

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Hey everybody,

So I went down to the Sweetgrass, MT POE to get my TN visa. There were a couple of problems the first try (they see engineering manager as a HR job not a engineering job) but on the second try with a modified job title there were no problems. What I didn't do at the time was get TD visas for my kids (9 mos and 3 years). My wife is a dual US/CAD citizen so she doesn't need one.

Is this a big deal? Do I technically need to do all the visas at once or can I just get their TD visas the next time we cross when we move down there? I'm pretty sure it isn't a problem but I wanted to see how other people had handled it. Also do you really need one for an infant/toddler or is it just a formality?

Thanks,

Kris

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voyager6868
CanuckAbroad Regular



Joined: 13 Apr 2008
Posts: 57
Location: Waterloo

Posted: Mon Aug 18, 2008 7:01 pm

 

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You don't need to do TDs at the same time as the TN.

If you cross with them and your wife, then basically the customs officer will need to see your childrens' birth certificates that list you as one of their parents.

If they cross separately from you, you will need to give them a photocopy of your TN (and presumably they will need a letter from you giving your wife permission to bring them into the U.S. since you won't be with them at the time).

It's possible they may be lenient and not need the full birth certificates listing you as their parent, but if you want to be totally sure, then you should have those.

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Steven
CanuckAbroad VIP



Joined: 28 Sep 2007
Posts: 1592
Location: Calgary

Posted: Wed Aug 20, 2008 9:09 pm

 

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This one could be tricky because his wife is a US citizen. If they know that at the POE they may think he has immigrant intent and not allow entry. Also might cause problems with the kids because they can get US citizenship.

I'd check with the consulate before attempting this.

If it were me I'd get the kids registered with their citizenship certificates, and have them and my wife go down separately.

If you actually plan on staying temporarily then that is the end of the problem, but if you plan on staying permanently and adjust status, that is going to cause problems at the interview because they may think you lied at the POE to get entry in a temporary status when you intended on staying.

Personally I'd be looking at either a K-3 visa or getting my wife to do an I-130 for me. No point to non-immigrant categories if you're married to a US citizen.
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Steve.

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sofus72
New Member



Joined: 18 Jul 2008
Posts: 8
Location: Calgary, AB

Posted: Thu Aug 21, 2008 9:17 am

 

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Could they not allow me entry on suspicion of immigrant intent even after they have issued me my TN? That would kind of stink as I have already quit my job and started the move.

My wife has actually never lived in the US so the kids aren't eligible for derivative status until she has lived there for 5 years so the only real option is for them to go on a TD visa or for her to sponsor them which would be hard since she is a stay at home mom with no income. As for a K-3 or I-130 I don't think this is really an option unless she has income in the US.

In terms of actual immigrant intent we really aren't sure where we stand on this. At the moment we really are just going down for a great work opportunity and the opportunity to move back east (we are originally from Ontario).

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Steven
CanuckAbroad VIP



Joined: 28 Sep 2007
Posts: 1592
Location: Calgary

Posted: Thu Aug 21, 2008 9:41 am

 

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They can deny you at any point if they think you don't have "bona fide non-immigrant intent", but if you show up with your wife and say: "oh, she doesn't need a TD, she's a citizen", that is definitely going to foul it up. Especially at Sweetgrass if you get the guy with the crew cut and the glasses or his boss, they're basically walking, talking copies of the Code of Federal Regulations.

I'm not sure about the I-130, I'm not sure spouses can sponsor people on I-130s when they live outside the US, it can be done for other categories though (e.g. brother sponsoring sister). But I'm pretty sure you can do K-3. But that takes seven to nine months to sort out.

From the sounds of it she's also going to have problems with the IRS, has she ever filed a US tax return? Citizens have to file tax returns regardless of where they live. So the IRS will probably require her to go back several years (seven usually) when she files. If she's never filed a 1040 that's also going to cause problems with immigration, e.g. if she ever needs to file an I-864. They use 1040s to show proof of income.

And then you're going to have a possible problem with the IRS, depending on whether you plan on staying or not. If you plan on staying temporarily, you will file 1040NR and she will file 1040, so you can't file jointly. If you plan on staying, you will jointly file 1040, but if you do that then you become a resident alien for tax purposes and then maintaining TN-1 becomes pretty tenuous - American wife and resident for tax purposes.

The way to do this quickly and messily is for her to enter as a Canadian citizen on a TD, but I suspect that may well cause various problems down the road, e.g. with the taxes and adjustment of status, depends on how long you plan on staying. I think it may also be illegal because she is misrepresenting herself to USCIS (and to the IRS if you jointly file 1040NR).

The way to do it properly is for her to sort herself out with the IRS now before she enters, and for you to apply for a K-3 visa. But that will take a long time to sort out obviously. If she's had no income for seven years it shouldn't be too massive a problem with the IRS, it's just a pile of paperwork. She'll need to get an SSN as well to do that.
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Steve.

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sofus72
New Member



Joined: 18 Jul 2008
Posts: 8
Location: Calgary, AB

Posted: Thu Aug 21, 2008 10:03 am

 

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I guess the real issue is we're already started down the TN path so it is difficult to stop now. Can I go from a TN to a K-3 or is that a major no-no? My wife will be in Ontario with the kids for the next month or so while I'm working in the US so it will be the perfect opportunity to sort things with the IRS I guess.

They definitely make this whole process complicated don't they.

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Steven
CanuckAbroad VIP



Joined: 28 Sep 2007
Posts: 1592
Location: Calgary

Posted: Thu Aug 21, 2008 10:14 am

 

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She'd have to go into the US to apply for an SSN, that's the only snag. It's only a day at the office but she needs the number to file the tax returns and she needs to talk to the IRS obviously to find out exactly what she needs to file. I suppose while she's waiting for the SSN card to show up she can do the tax returns.

Once things are straight with the IRS you can do the immigration bit. She can sponsor you, the only tricky bit is that technically you have entered with the intention to stay rather than temporarily which could be a problem come interview time.

Have a look at www.visajourney.com as there will undoubtedly be people on there who have ended up in the same situation.
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Steve.

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Reba
Moderator


Canuck in NC

Joined: 16 Jul 2004
Posts: 1451
Location: North Carolina

Posted: Thu Aug 21, 2008 3:37 pm

 

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You can't technically go from a TN to a K3, however, once you already have your TN, you can start the process for a K3 (or rather the CR1, which is the superior visa really, and processes in about the same amount of time, currently about 1 year for both actually thru Montreal).

Your TN will expire though before the K3 or CR1 is completed, so you'd have to leave the US and wait out the rest of the process, which will be a couple or few months, give or take. So if you really like your employer, you'd have to butter them up to allow you a leave of absence while you wait it out. Once an immigrant petition is in with your name on it, you wouldn't be able to renew your TN.

Your wife can sponsor you for either of the K3 or the CR1, (which both include the use of the I-130 petition, whether the US spouse is currently living inside or outside the US, doesn't matter) if she doesn't have any US income, you can get a co-sponsor. A co-sponsor can be ANY US citizen with income sufficient to support you. Doesn't have to be family, it can be a friend, or even complete stranger really, but I think that would be odd Your wife would still be the primary sponsor, however the co-sponsor would then be taking on all the financial requirements, for a committment of 10 years.

Visa Journey is great. I've also BTDT with the whole spouse sponsorship thing, so I can answer almost anything immigration related (the process has changed a little bit in the past couple of years since I've been here, but its still basically all the same paperwork).

**edit to add**
actually, come to think of it, you can do Direct Consular Filing in Canada for the CR1 visa. Don't bother at all with the K3, it sucks. CR1 via DCF can be completed in probably less than half a year.

See the DCF forum at Visa Journey for info.
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