Bringing Canadian spouse of USC to US

[krp 0]

Hi everyone, thanks in advance for any help -- this forum is great.

Background: I'm a USC and just completed my PhD at an Ontario university; as such I've been in Ontario on a student visa for six years. My fiancee is a Canadian citizen, and we're getting married next week (July 15). I'm then moving to Vermont on August 1 to start my new job. (We planned the wedding over a year ago; I found out about the job a few months ago.)

Questions:

1. Is there any way for my spouse to move to Vermont with me and apply for a visa/GC within the US? (From my research it looks like the answer is no.)
   
2. Assuming my spouse can't move with me, is her quickest immigration option DCF (via Toronto)? If so, is it ok if I move to the US after the application is filed?
   
3. Assuming we DCF, is there a limit to how long my spouse's visits to the US can be while her application is pending?
   

Thanks a lot! Let me know if you need more details.

-krp

[Inky 1,111]

1. No

2. DCF can be faster but you still interview in Montreal and Montreal is slow. (View numerous threads in the Canada section about how people hate Montreal consul.)

3. The limit is set by POE officer generally. No more than 90 days as a visitor or less if the POE officer says so, 6 months if you own a residence in the USA. Bring proof of ties to Canada when trying to cross. She has to return for police clearance, medical and interview. As well as any other papers she needs etc.

[krp 0]

1. No

2. DCF can be faster but you still interview in Montreal and Montreal is slow. (View numerous threads in the Canada section about how people hate Montreal consul.)

3. The limit is set by POE officer generally. No more than 90 days as a visitor or less if the POE officer says so, 6 months if you own a residence in the USA. Bring proof of ties to Canada when trying to cross. She has to return for police clearance, medical and interview. As well as any other papers she needs etc.

Hi Inky, thanks a lot for the quick reply -- very helpful. Both our names are on the lease for our apartment in Vermont -- don't know if that makes a difference re: visitation length. But it sounds like she could effectively live with me for a large chunk of time as a "visitor" while her application is being processed? Is that true?

-krp

[Jojo92122 1,924]

Hi Inky, thanks a lot for the quick reply -- very helpful. Both our names are on the lease for our apartment in Vermont -- don't know if that makes a difference re: visitation length. But it sounds like she could effectively live with me for a large chunk of time as a "visitor" while her application is being processed? Is that true?

-krp

If the lease is longer than six months, I think that would work against her when attempting to enter the US on a visitor visa. People who intend to visit the US on a visitor visa, the VWP, or something similar do not usually sign leases for terms longer than their permitted time in the US. Having a lease beyond her permitted time visiting the US sure makes it look like she is intending to immigrate to the US.

[krp 0]

Fair enough -- I guess we won't show any border guards our US lease then.

Another quick follow-up: If my Canadian spouse had a job offer in the US, would she then be able to move with me and then apply for a green card?

[Inky 1,111]

Fair enough -- I guess we won't show any border guards our US lease then.

Another quick follow-up: If my Canadian spouse had a job offer in the US, would she then be able to move with me and then apply for a green card?

Job has to supply the work visa for her. That is a long wait time itself and VERY expensive for the company to do. It also pertains to only certain employment categories. Work visas do not get green cards.

So no having a job wont work. Best bet is DCF and if that cant be done then do CR-1/IR-1.

[krp 0]

Thanks a lot for the replies so far. After doing some more research I'm a little confused -- specifically with regard to the instructions for completing the I-485 (AoS application). In describing who is NOT eligible to file the form, the instructions for the I-485 say this:

You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years of age)

That sounds as if my Canadian wife could move to the US with me as a visitor (i.e., under the Visa Waiver Program) and then file the I-130 and I-485 together. Am I missing something?

-krp

[Jojo92122 1,924]

Thanks a lot for the replies so far. After doing some more research I'm a little confused -- specifically with regard to the instructions for completing the I-485 (AoS application). In describing who is NOT eligible to file the form, the instructions for the I-485 say this:

That sounds as if my Canadian wife could move to the US with me as a visitor (i.e., under the Visa Waiver Program) and then file the I-130 and I-485 together. Am I missing something?

-krp

Laws are full of conflict so be careful.

It is illegal to enter the US on the VWP with the intent to immigrate. A person who enters the US on the VWP waives all rights to appeal immigration orders.

While it is permissible for an immediate relative of a US citizen to adjust status after entering the US on the VWP, it is still illegal to enter the US with the intent to immigrate.

For example; a person who enters the US on the VWP without the intent to immigrate and later adjust his status is okay while a person who enters the US on the VWP with the intent to immigrate and attempts to adjust his status will be denied. The intent to immigrate will be determined based on the totality of the person's circumstances; did he quit his job at home, tell friends that he is immigrating to the US before his trip, etc.

[krp 0]

Thanks for the clarification, Jojo. It seems wildly unfair that a VWP visitor could by chance meet and marry a spouse in the US and get to stay with the spouse while adjusting status, whereas my wife, whom I've lived with for 3 years already, has to be separated from me while she applies for a GC. I've come close to punching a hole in my monitor a couple times today... but I guess that's our government at work.

Venting aside, one more question: If we DCF, will my wife be able to visit me while her application is pending? In particular -- assuming she satisfies the border guard that she has ties in Canada and will return -- can she spend two or three months at a time living with me before she returns to Canada for a bit? (She's finishing her PhD in Ontario, but she can do a lot of her work remotely.)

[Inky 1,111]

Thanks a lot for the replies so far. After doing some more research I'm a little confused -- specifically with regard to the instructions for completing the I-485 (AoS application). In describing who is NOT eligible to file the form, the instructions for the I-485 say this:

That sounds as if my Canadian wife could move to the US with me as a visitor (i.e., under the Visa Waiver Program) and then file the I-130 and I-485 together. Am I missing something?

-krp

That is immigration/visa fraud. Entering as a visitor with intent will get you denied and banned from the USA.

Venting aside, one more question: If we DCF, will my wife be able to visit me while her application is pending? In particular -- assuming she satisfies the border guard that she has ties in Canada and will return -- can she spend two or three months at a time living with me before she returns to Canada for a bit? (She's finishing her PhD in Ontario, but she can do a lot of her work remotely.)

Yes she can visit, bring strong ties to Canada show them return ticket, school papers, a job expecting her back etc. Up to CBP really if they allow her to stay 2-3 months but if she brings strong ties and proof of the DCF she has a good chance to be allowed into the USA for that long.

[krp 0]

Thanks Inky!

Regarding DCF: Can we still take that route if I move back to the US after we file the initial application with the Toronto consulate? (I've been residing in Ontario for six years but I'm moving back to the US a week after our wedding.) Or is the idea of DCF that the USC remain in Canada until the beneficiary's visa is approved?

Regarding visiting: Does anyone have experience with long (2/3 month) visits while an application is pending? Is it possible for the foreign spouse to have multiple long visits?

[Krikit 1,165]

There is quite a bit of misinformation in this thread. I'm going to move it to the Canada regional forum to try to eliminate that.

Laws are full of conflict so be careful.

It is illegal to enter the US on the VWP with the intent to immigrate. A person who enters the US on the VWP waives all rights to appeal immigration orders.

While it is permissible for an immediate relative of a US citizen to adjust status after entering the US on the VWP, it is still illegal to enter the US with the intent to immigrate.

For example; a person who enters the US on the VWP without the intent to immigrate and later adjust his status is okay while a person who enters the US on the VWP with the intent to immigrate and attempts to adjust his status will be denied. The intent to immigrate will be determined based on the totality of the person's circumstances; did he quit his job at home, tell friends that he is immigrating to the US before his trip, etc.

Canada is not part of the VWP so please ignore the above information.

Canadians can stay up to six months in the US, but it is always up to the CBP officer. Link Most Canadians do not encounter any problems. She will need to refer to her entry as a "visit" as opposed to living here. Terminology is everything.

Welcome to VJ.

[krp 0]

There is quite a bit of misinformation in this thread. I'm going to move it to the Canada regional forum to try to eliminate that.

Now I'm confused again. Krikit, do you have a recommendation re: my wife's immigration procedure? Is it possible for her to enter the US as a visitor and apply from within the US, or does she need to remain in Canada until she gets approved?

If she does need to remain in Canada, can we DCF even though I would be moving back to the US a week after sending in the application to Toronto?

[Krikit 1,165]

Now I'm confused again. Krikit, do you have a recommendation re: my wife's immigration procedure? Is it possible for her to enter the US as a visitor and apply from within the US, or does she need to remain in Canada until she gets approved?

Yes, it is possible for her to enter as a visitor and adjust status from within the US. The problem lies in whether USCIS wants to prove she had immigrant intent, which will result in a denial. See this link for more information.

If she does need to remain in Canada, can we DCF even though I would be moving back to the US a week after sending in the application to Toronto?

I believe you are eligible as you fit the criteria. As a DCF applicant you are required to prove that you have domicile intent in the US, so that falls in line with your plans. See this link for more information. However, I am not an expert on DCF applications so, hopefully, someone who is will be along to answer. Personally, I would call the Consulate in Toronto and ask them.

Edited July 5, 2011 by Krikit

[Flames9_RN 358]

One can Adjust status (AOS) as a visitor----if you entered the USA with NO INTENTION of staying. Thats all I will say on that,lol

When your wife is coming to the USA--she is coming to VISIT--NOT to live!! HUGE difference in the eyes of the border people. 1 thing you want to never do is LIE!!! They catch you lying, and things can get very complicated.

No 1 cares more about your situation than YOU!! So take some time, read over the DCF forum (there is even a CDN section there) and read over the CR-1/IR-1 forum, there are guides there. They explain the situation step by step. Welcome to VJ