K-1 Confusion

[nymory 0]

My Boyfriend is from the USA. I am from Canada, but currently staying with him for a few months, a visa is not necessary - Canadians are allowed to visit for 6 months.

I'm wondering if we can apply for a k-1 while I am in the USA, and if I have to leave for Canada for the interview or can I do this from the US. I've been told so many different things and read so many posts that i'm confused. Some have said once you file the papers, you cannot leave the country. Other posts said you have to interview in Montreal?

If we file for a K-1, I am able to work in the USA (I've read that I can apply for jobs with an Alien number on the application-I don't know if that is correct though). That process is around 5 months, then we receive a notice of approval, and we then have 4 months to deal with that. Once we have the visa, we then have 90 days to get married. Is this all correct? Because I'm not here on a Visa, by that time I would be over my 6 month limit. Would I be considered staying illegally while the paperwork goes through or does my time automatically extend?

Can anyone else fill me in on things we should be concerned about?

Thanks!

[SunDrop 59]

As long as you are both currently free to marry, your fiance can file a K-1 petition while you are still in the US. You would apply and be interviewed and undergo your medical in Canada, however. I believe a lot of Canadians who are granted up to 180 days entry file and wait out most of the petition approval, returning to apply for the visa itself and interview. If you'd go through Montreal there is a backlog for interviews at the moment, and you don't need to leave the country as soon as your NOA2 (the petition approval) comes through. You don't want to overstay your I-94 however.

Technically, if you didn't plan to get married while you were visiting this time, there is nothing stopping you from getting married and simply filing to AOS. This is a very controversial way of getting through what many feel is a 'loophole' in US immigration law. The important issue is that you are confident you have not misrepresented yourself and your intentions at any time. This can be as simple as the IO at the border saying, "not planning on getting married are you?" to which you replied "no!" truthfully and then you go ahead and get married. Because the potential risk associated with doing it this way, many people opt to get married, file for a CR-1 and complete the process in Canada, much as you would the K-1. The difference being it's a cheaper way to a green card and you are able to work upon entry.

If you go the K-1 route or the AOS route, you cannot work until your Employment Authorisation Document has been granted. So with the K-1, you would enter and get married within 90 days then file your AOS and wait the 60-90 days it takes for the EAD to come through. With the AOS route, you would have to wait the same amount of time. With a CR-1, you could work within a couple of weeks of entering (time it takes for you to show up on the SAVE system and apply for a social security number).

As for 'overstays' my understanding is that if you go the K-1 or CR-1 route, staying beyond would cause problems because you'll be leaving the country to return to complete the process. If you were to marry and file for your AOS from the US, your overstay accumulation is stopped the moment they accept your filing. It then starts again if processing is suspended for any reason (e.g. they send an RFE, request for evidence) and then once you response is logged, the counter stops again. If your AOS is approved, then the overstay is forgiven. However, if your AOS is denied, your overstay comes into immediate effect for all the days you've extended by from the get go. You'd then be faced with having to return to Canada AND having an overstay on your immigration record that you'd have to contend with overcoming, no doubt at great emotional and dollar cost.

So, your best advice is choose whether you want to be able to work asap once you are back in the US with a visa and what is important to you wedding-wise. If you don't mind a practical, legal 'quickie' for the sake of lower cost and quicker employment, then the CR-1 is worth considering. If you want to wait to get married and plan more of a to-do, file a K-1 petition and get married upon your return to the US in about 7-8 months time.

Good luck

Edited March 19, 2010 by SunDrop

[Kathryn41 3,205]

My Boyfriend is from the USA. I am from Canada, but currently staying with him for a few months, a visa is not necessary - Canadians are allowed to visit for 6 months.

I'm wondering if we can apply for a k-1 while I am in the USA, and if I have to leave for Canada for the interview or can I do this from the US. I've been told so many different things and read so many posts that i'm confused. Some have said once you file the papers, you cannot leave the country. Other posts said you have to interview in Montreal?

Yes, you can start the process for the K-1 while you are in the US because it is not you starting it - it is your fiance. He needs to file an I-129f petition to the immigration service center for where he lives. When this is approved - and it will take several months - he will receive a notice called an NOA2. At this stage, the whole process moves to Canada. You will receive a letter telling you there is an approved petition for you and inviting you to apply for the K-1 visa. The package will include instructions about what you need to do next. You will need to do this part in Canada - it cannot be done from the US. The end stage of this process is an interview either in Montreal if you live in Eastern Canada or Vancouver if you live in Western Canada. Once you are approved after the interview, you get the K-1 visa placed in your passport. The visa is valid for 6 months - which means you have 6 months in which to use it - and it is good for a one time entry into the US with your belongings. Once you enter the US you have to get married within 90 days and then file for permission to remain in the US as a permanent resident (called Adjustment of Status aka AOS aka 'green card').

I think you are getting several different stages of the process confused- or the people who you have been talking with are confused. Once you enter the US on the K-1 visa you cannot leave until one of two things happens - you receive your green card or you receive special travel permission after you have filed for but before you have received your green card. If you do, you will be refused re-entry to the US and have to start the immigration process over again with a spousal visa.

If we file for a K-1, I am able to work in the USA (I've read that I can apply for jobs with an Alien number on the application-I don't know if that is correct though).

Actually this is no longer true. K-1 visas are 'work-enabled' but you still need to have specific authorization known as an EAD - Employment Authorization Document - before you are allowed to work. You apply for the EAD the same time you apply for your green card. It usually takes about 60 to 90 days to receive. This is also true for the special travel permission I mentioned above (called an Advance Parole - AP). You also need to have a Social Security Number in order to work and you apply for this after you enter the US on the K-1 visa. The A number ("alien" registration number) is only a tracking number used for immigration purposes and has nothing to do with employment.

That process is around 5 months, then we receive a notice of approval, and we then have 4 months to deal with that. Once we have the visa, we then have 90 days to get married. Is this all correct?

Yes and no. The timeline has a great deal of variability. The petition stage - the I-129f petition filed by your fiance - can take anywhere from 3 or 4 months to 7 months or more. 5 months appears to be an 'average' - it could be faster or slower. When the petition is approved (NOA2) the process moves to Montreal. It takes several weeks to get there from the US. When it does, they send you an information package of what you need to do next. There are a number of documents you need such as your passport, a long form birth certificate, death or divorce papers for previous marriages, a Canada wide police security check (through the RCMP - name check is fine unless you have any charges in which case a fingerprint check is required), and an immigration medical from an approved Panel Physican (a doctor selected by US immigration to do the medicals). When you have these things done or arranged, you notify the Consulate and they put you in the line up for an interview. Interviews are currently taking about 5 or 6 months to schedule, so assuming you get everything else done really quickly and notify them right away you have a minimum of 5 or 6 months wait plus however long it takes for you to get your 'stuff' together. You leave your passport with the Consulate if your application is approved and they mail it back to you within 1 to 2 weeks. It is valid for 6 months. Once you use it to enter the US, you receive a document called an I-94 stapled into your passport that is valid for 90 days. You need to get married before the I-94 expires, and you need to apply to become a permanent resident.

Because I'm not here on a Visa, by that time I would be over my 6 month limit. Would I be considered staying illegally while the paperwork goes through or does my time automatically extend?

You are not here on a technical visa but you are here on a de-facto B2 visitor status even as a Canadian. You cannot stay beyond the 6 months time in the US. You are not allowed to be 'living' in the US during this process. You are also expected, as a visitor, to spend at least an equal amount of time in Canada as in the US. Two other considerations - you lose your access to Canadian health benefits coverage if you are outside of Canada more than 6 months, plus the IRS now considers you a tax resident of the US and you will either need to file a US tax return or prove to them you have closer financial ties to Canada than to the US.

If you go over your 6 months visitor's status, you are out of status and start accumulating out of status days. If you have more than 180 out of status days, then when you leave the US you automatically incur a 3 year ban. If you have more than a year of out of status days, when you leave the US you automatically incur a 10 year ban. Visa petitions will be approved but you would be denied at the interview if you have a ban.

Can anyone else fill me in on things we should be concerned about?

You can visit your fiance during the process but you will need to be prepared to show strong evidence of your ties to Canada - letters from employers stating your date of expected return, a lease or mortgage, ongoing expenses that you are regularly paying such as utilities, insurance, etc. If US border authorities ever suspect you are living in the US or are trying to evade immigration policy and procedure (ie are an immigration risk) they will deny your entry to the US. That is why you try to reassure them that you need to return to Canada. Having a K-1 visa in process also acts as very good evidence that you are following the correct immigration process.

Thanks!

Come on over the to Canada Regional Forum as well - you will find lots of Canadian-American couples who are going through the same process as you are at various different stages. It is one of the best ways to find out exactly how long things are taking right now.

Edited March 19, 2010 by Kathryn41

[jken 2]

Come on over the to Canada Regional Forum as well - you will find lots of Canadian-American couples who are going through the same process as you are at various different stages. It is one of the best ways to find out exactly how long things are taking right now.

Thanks so much for taking the time to do this, i am sure many will find it beneficial, including myself!