AOS after VWP- Married before entry

[JoannaV 174]

You can file the I-130 as soon as possible. You will file in the US but you need not wait till you return there. You will be applying for an IR-1 visa, as you have been married for more than two years. (Not that it really matters if you call it CR-1, but just so you know :-) )

It sounds like you do intend to settle in the US, so I would go ahead and file the I-130. You will have time to find a job. They will not say TODAY you must all move to America, if you see what I mean. You have time within the process. Now the financial support requirement for the visa are a consideration: if you don't have substantial savings (in the region of $60,000) and don't have US based income, then you will need someone in the US with sufficient income who is willing to sign the affidavit of support. If you have good relations with your family this will probably be easy. Otherwise, you will have to get the job in the US before your husband can get his visa.

My main quibble with any lawyer who recommends heading in on VWP and then using AOS is that they do not have much respect for the law.

Oh, and it might be a good idea to change your country (which appears in your profile information to the left of your posts) to Canada. As your husband will be interviewing in Canada you will need Canada specific advice not UK specific, and so will be useful if your posts appear in the Canada portal :-) You can always make it UK again after he's got his visa

Edited July 30, 2011 by JoannaV

[bigdog 376]

Hi all, I've been reading the forums the last few days and have not been able to find a situation like mine:

I am a USC married to a Canadian permanent resident, yet he holds UK citizenship. We have been married for 4 years, got married in the US and I went back to Canada with him. Upon my arrival, I was issued a temporary residency permit which has been renewed several times, as I have had trouble providing them with the proper documentation surrounding a DUI arrest 13 years ago, to file for permanent residency. I am currently here in Canada on simply a visitor's record which expires in November. We have a daughter, born in Canada 2 years ago. We are looking into my husband possibly immigrating into the US, since my immigrating here has become a nightmare. Am I correct in assuming DCF is not an option for us, as I am not a PR? I do have a social insurance number here and have filed taxes here since the year I arrived.

Also, as we are not absolutely certain of what we intend to do yet, we are planning to return to the States once my vistor record expires. He will enter under VWP. If it is possible for me to find a well-paying job, we would like to remain there. Would he be able to file for AOS? Or is our only option CR-1? Should I file I-130 before we leave for the States? Am I correct in assuming K-3 visa is not a realistic option?

And what about my daughter? Do I have to file an immigration petition for her, or does she automatically have US citizenship through me?

Looks like you have gotten lots of good advise, good luck.

[hikergirl 277]

From what I was reading you need to apply for US citizenship for your daughter. There is a link on the top right of the linked page for the CRBA. It also had this at the bottom of the page: After naturalization, a child can obtain a U.S. passport if so desired. I'd hate to see you waste money applying for a passport if you have to Naturalize her first.

My link

[kathump 0]

You can file the I-130 as soon as possible. You will file in the US but you need not wait till you return there. You will be applying for an IR-1 visa, as you have been married for more than two years. (Not that it really matters if you call it CR-1, but just so you know :-) )

It sounds like you do intend to settle in the US, so I would go ahead and file the I-130. You will have time to find a job. They will not say TODAY you must all move to America, if you see what I mean. You have time within the process. Now the financial support requirement for the visa are a consideration: if you don't have substantial savings (in the region of $60,000) and don't have US based income, then you will need someone in the US with sufficient income who is willing to sign the affidavit of support. If you have good relations with your family this will probably be easy. Otherwise, you will have to get the job in the US before your husband can get his visa.

My main quibble with any lawyer who recommends heading in on VWP and then using AOS is that they do not have much respect for the law.

Oh, and it might be a good idea to change your country (which appears in your profile information to the left of your posts) to Canada. As your husband will be interviewing in Canada you will need Canada specific advice not UK specific, and so will be useful if your posts appear in the Canada portal :-) You can always make it UK again after he's got his visa

I intend to file the I-130 next week then, as soon as I can find some paperwork re. my husband's previous divorce, he thinks he remembers the date, but isn't positive. I would rather have all of the information be correct than have to go back and change something later. My parents are more than happy to be a joint sponsor and submit a financial affidavit, anything to get their grandaughter back to Florida! I actually had a concern regarding my I-864. I know that I must send my tax return for the most recent year, but as I have had absolutely no income (can't work here!) I have only filed Canadian returns with my husband. I contacted the IRS and was told that I was not required to file. Would it be better to go ahead and file for 2010 and submit a US tax return instead? Would that also help to prove domicile? Or maybe that won't be an issue as I only have a visitor record to be here in Canada, not a residency permit..?

Sorry if my questions seem a bit "all over the place." This whole process is very daunting!!

[kathump 0]

Looks like you have gotten lots of good advise, good luck.

Thanks, I feel a bit better about the process with the advice I've gotten. I'm under no illusion that this will be a simple process, but it does seem more do-able

[kathump 0]

From what I was reading you need to apply for US citizenship for your daughter. There is a link on the top right of the linked page for the CRBA. It also had this at the bottom of the page: After naturalization, a child can obtain a U.S. passport if so desired. I'd hate to see you waste money applying for a passport if you have to Naturalize her first.

My link

Thanks for the link, seems like that's the right way to go about it. Maybe we can get it done when my husband goes to Vancouver for his medical.

[Boiler 45,516]

There is no right or wrong way.

I did the K1 but realised I would be in the minority.

[canadian_wife 1,822]

Thanks. Although I know lots of people are separated from their spouse/children for longer periods of time, I just hate the fact that my daughter will be away from her father for months. Will he be allowed to visit on VWP?

Canadians do not travel on the VWP.

But visitataion is possible, lots of people do it. Bringing strong ties to Canada will help but with a spouse and USC child may make it more difficult. Admittance is not a guarentee

Good luck

[Inky 1,110]

Canadians do not travel on the VWP.

But visitataion is possible, lots of people do it. Bringing strong ties to Canada will help but with a spouse and USC child may make it more difficult. Admittance is not a guarentee

Good luck

OPs future husband is not Canadian, he is a Canadian resident, he is from the UK and travels on a British passport so uses VWP.

[newlyweds2010 208]

I hope I am not giving bad advice, but isn't it illegal to have preconceived immigrant intent AT THE TIME you go through the POE? From what you are saying, you do not have the clear intent, because you don't even know if you (the USC) will be staying in the US at the time of entry. if then things change once you've been admitted, and ONLY AT THAT POINT you have a change of heart and decide to stay, I don't think that anything would prevent your husband from adjusting status.

[KittyPollitt 284]

I hope I am not giving bad advice, but isn't it illegal to have preconceived immigrant intent AT THE TIME you go through the POE? From what you are saying, you do not have the clear intent, because you don't even know if you (the USC) will be staying in the US at the time of entry. if then things change once you've been admitted, and ONLY AT THAT POINT you have a change of heart and decide to stay, I don't think that anything would prevent your husband from adjusting status.

One thing could prevent him from adjusting status- The IO, after he or she looks at their circumstances. He has a USC wife and kid, and the fact that the topic is being discussed on this forum shows that there is immigrant intent.

OP, do not put your family's future on the line for "maybe", or "I don't think". You've gotten some great advice. Hope all goes well for you.

[kathump 0]

I hope I am not giving bad advice, but isn't it illegal to have preconceived immigrant intent AT THE TIME you go through the POE? From what you are saying, you do not have the clear intent, because you don't even know if you (the USC) will be staying in the US at the time of entry. if then things change once you've been admitted, and ONLY AT THAT POINT you have a change of heart and decide to stay, I don't think that anything would prevent your husband from adjusting status.

We have basically decided that if it is possible, we will stay in the US. That all depends upon our ability to sell our house here, my finding employment, etc. So I would say while it's not definite, it is a good chance. So that WOULD be intent. I just want to go about this proper way and not have to convince someone at immigration that we are being honest. I would just rather BE honest.

[kathump 0]

I hope I am not giving bad advice, but isn't it illegal to have preconceived immigrant intent AT THE TIME you go through the POE? From what you are saying, you do not have the clear intent, because you don't even know if you (the USC) will be staying in the US at the time of entry. if then things change once you've been admitted, and ONLY AT THAT POINT you have a change of heart and decide to stay, I don't think that anything would prevent your husband from adjusting status.

Also, 4 years ago after we first got married and I had come to Canada, we planned a road trip to Seattle to see an NFL game. When crossing the border, we were pulled aside for questioning. Because we were married, and each of our statuses, we hade a VERY hard time convincing them that we were only going to a football game and then returning to Canada. After 4 hours, 2 searches of our vehicle and showig them our tickets and hotel bookings, they finally let us in. That was a very nerve-wracking experience, and we were being completely truthful. I would hate to be in a situation like that again, especially if I weren't being 100% upfront about our intentions.

[Brother Hesekiel 2,236]

From what I was reading you need to apply for US citizenship for your daughter.

Nonsense. The child is a US citizen already.

[missicy 87]

I intend to file the I-130 next week then, as soon as I can find some paperwork re. my husband's previous divorce, he thinks he remembers the date, but isn't positive.

He needs not only remember the date of his divorce, but must send copies of divorce documents with I-130. It will not be approved without them.