Immigration to US fr. Canada - can we travel btwn countries while application is pending / where do I start?

[CanadianSpouse 0]

I am, quite honestly, lost about which application process is appropriate and most expedient for my husband and I.

I am a Canadian.

My husband is a U.S. citizen who has been a Canadian permanent resident for many years.

We currently live in Montreal, Canada. We want to move to the U.S.

Direct Consular Filing seems best, but it seems the law has recently changed (April 2011) about where one can do this. So I am not sure if a I-130 can be filed on location in Montreal. (I couldn't tell on their website or get through on the phone).

I am not even sure if we should be applying for a K-3 or an IR1 / CR1.

I am also not sure if I am applying for an immigrant or non-immigrant visa.

It would be easy for us to apply in New York (where we were married) if that is better.

My main priority is being able to travel between Canada and the U.S. while the application is being processed. Does anyone know if it's possible to do so?

Can a Canadan go back and forth or stay in the U.S. while immigration is pending as long as it is within the 6 month legal period? Or does that process require a fiancee visa? Or K-3 with status to be changed later?

Any direction would be so greatly appreciated!

Really confused,

Thanks.

[DCFAMS 2]

The short answer is: yes you can

However, repeated trips in and out of the USA can create delays in the processing of your petition, as they will scrutinize this during the review process. You also risk the chance of being denied entry at the border by a CBP official in which case you will then never be eligible to use the VWP program/ESTA again and will always need to apply for a B class tourist visa to be able to enter the USA at the consulate/embassy. If you are married and he is already living in the USA the chances are of the B visa being approved are incredibly slim as you will just be seen as an immigration risk who will misrepresent themselves, enter the USA under false pretenses and apply for an AOS (Adjustment of Status) once inside the USA. You will then also need to disclose this in the later forms that you were denied entry at a POE (port of entry), which will cause them to take an even bigger magnifying lens to your application.

The best advice I have is while your petition is being processed to simply stay put and not draw unneeded attention to yourself, even if you have good intentions the immigration process is an incredibly arduous bureaucratic process and what may seem harmless to you could be seen as red flags or warnings to Immigration and Customs officials. Best to just weather the storm in the basement until it blows over, to use rural parlance.

[Ryan H 3,813]

Direct Consular Filing seems best, but it seems the law has recently changed (April 2011) about where one can do this. So I am not sure if a I-130 can be filed on location in Montreal. (I couldn't tell on their website or get through on the phone).

That change was not statutory, just procedural and it was effective August 15th of this year. Canada does not have a USCIS field office so your husband will have to send the I-130 petition to the lockbox facility in Chicago

I am not even sure if we should be applying for a K-3 or an IR1 / CR1.

I am also not sure if I am applying for an immigrant or non-immigrant visa.

How long have you and your husband been married? If 2 years or more, than you will apply for an IR-1, if less than two years, then it's CR-1. Regardless, both are immigrant visas.

K3 is a non-immigrant visa (adjustment of status would be required to obtain a green card if entered on a K3), however, don't bother going down that route. An I-130 has to be filed first, then an I-129F; USCIS ties both petitions together and both are approved at the same time. NVC usually receives the two petitions at the same time and administratively closes the I-129F in this circumstance.

It would be easy for us to apply in New York (where we were married) if that is better.

Nonstarter

My main priority is being able to travel between Canada and the U.S. while the application is being processed. Does anyone know if it's possible to do so?

You can go back and forth during this process. However, there is no guarantee that CBP will allow you entry.