Married USC living in Canada weighing best approach for immigrant wife and two (presumed) dual children

[Burnt Reynolds 5,058]

Hello everyone,

 

I spent quite a bit of time over the last week looking at numerous threads, the process itself, etc., and surprise, still had a lot of questions and am hoping to pick at the brains of other members to better weigh options..

 

Background:

 

I am a USC in Alberta who immigrated to Canada 8 years ago (wife sponsoring me), became a Canadian citizen (so now I'm a dual US/Canadian citizen) a few years ago, wife and I married in California 10 years ago, before I moved to Canada, we had two kids in Canada, one being 8 and the other 1, but the economy here has me worried, so many friends and old coworkers are actually moving away, some down south as well, particularly those in the oil/gas industry. I tried to wait out the downturn, going back to university and am about to finish a business degree (doing full time schooling and using savings funds which are now nearly depleted, wife working), meanwhile I'm looking at jobs down south and I have no lack of confidence in finding good jobs. There are other growing issues aside of this in Canada (in a general sense) that I won't bother mentioning in this thread. The problem is figuring out what to file, understanding the process (I-130 only->then visa related forms?), and most importantly trying to minimize how long we'd be apart, as we'd basically be maintaining two residencies, and I'm sure I'm preaching to the choir concerning families being apart. 

 

In regards to us:

- I'm a US and Canadian citizen (holding two passports)

- We currently live in Alberta (Canada)

- We've been married for almost 10 years and have two children together

- Wife is only a Canadian citizen (so it would be a sponsorship for her, solely)

- Son and daughter are thus far only Canadian citizens solely because I've been too busy to get them their citizenship, but there's a US consulate here where they do this and it looks quite easy to do so not an issue getting done, so for application purposes assume both kids will be dual, unless there's some unforeseen matter that would prevent me from getting them this

- I have no criminal record or prior marriages. In Canada filed for a PR, visitor extension, then citizenship after holding PR for several years, all without help of a lawyer

- About 15 years ago, in a prior engagement, when I was in the US, I filed for a K1 visa for an ex fiancee of mine. After I was approved as a sponsor (for the I-129?) the file moved to her embassy. Shortly after this, I learned she had been lying to me the entire relationship, confronted her, gave her numerous chances over the next handful of weeks to rectify this, but she refused, so I had no choice but to break off the relationship. The application just sat there in her country until a few months later when I sent in a request to cancel the K1 application and it was granted/confirmed.

 

From what I gather there's three options:

K3 visa - Apparently makes less sense being a non-immigrant visa

IR/CR1 - Makes more sense being an immigrant visa

DCF - Despite logically being the best choice, apparently can't be done in Canada, though I keep reading posts about people saying they're doing a IR/CR1 to DCF or just DCF, though I didn't see those Canadian posters follow-up with confirmation that this route worked, so I just assume by default that this isn't an option for us. Hopefully if I misinterpreted this and it somehow *is* an option someone will let me know.

 

So questions:

 

1) I assume the IR/CR1 our only real option.. is there a way to get any of this process done while remaining in Canada to reduce the time being apart? I know wife and I would be fine, it's more this process taking a year or so and being apart from my kids, especially my 1 year old son. It seems like there's multiple steps that have different times of submitting certain forms, which to me means the possibility of reducing our time apart.

2) Does anyone know if you lose all benefits of an RESP when moving? We've put quite a bit of money into our kids' RESP accounts, does Canada do anything to these accounts if the kids move? Does the US government care about these accounts?

3) Taxes. From what I understand (or did before moving) about US taxes, we didn't need to file when making under a threshold of US income. Since I got rid of all my assets, transferred funds to mother, and filed before the move to Canada, I haven't filed for US taxes, so would I show them my/our annual CRA filings/Notice of Assessments for income verification? Do they consider my wife's income as well or just mine? Similarly, does US income only matter, meaning work in the US for a year before starting the process, or does simply having the job and the presumed income (as in, what that job would make over the span of a year) from that matter?

 

I'm sure there's things I overlooked as well, hopefully some who have experience with something similar can maybe shed light on this with what they know.

[aratamorne 165]

I would contact a US based accountant.  My understanding is that while you may not be required to pay taxes if you earn under a certain limit while in another country, you would still need to file.  While I worked overseas, I filed my taxes and the tax credit was applied during my filing.  I am not an accountant so I do not know the law for sure but here is the link to the latest IRS Guidelines.  https://www.irs.gov/pub/irs-pdf/p54.pdf

 

 

[kris&me 572]

Need to file the missing years of tax returns

the exempt amount is well over $100,000

 

You must work and reside outside the U.S. to qualify, and you must meet either the bona fide resident or physical presence test. If you do, you're eligible to exclude up to $105,900 in foreign earned income in the 2019 tax year.

 

https://www.irs.gov/individuals/international-taxpayers/taxpayers-living-abroad

[HRQX 4,145]

1 hour ago, Burnt Reynolds said:

DCF - Despite logically being the best choice, apparently can't be done in Canada

You can try if you have exceptional circumstances: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2012/May/DOS-I130May1412.pdf An example:

 

1 hour ago, Burnt Reynolds said:

K3 visa - Apparently makes less sense being a non-immigrant visa

IR/CR1 - Makes more sense being an immigrant visa

The K-3 would still eventually lead to a green card: https://www.visajourney.com/content/compare/ But the K-3 is very rare; in fiscal year 2019 only five were issued worldwide. One in Tegucigalpa: https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/MonthlyNIVIssuances/October 2018 - NIV Issuances by Post and Visa Class.pdf Page 95

And four in Ciudad Juarez:

• https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/MonthlyNIVIssuances/JANUARY 2019 - NIV Issuances by Post and Visa Class.pdf Page 26
• https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/MonthlyNIVIssuances/APRIL 2019 - NIV Issuances by Post and Visa Class.pdf Page 24; Beneficiary was a Venezuelan national
• https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/MonthlyNIVIssuances/JUNE 2019 - NIV Issuances by Post and Visa Class.pdf Page 26
• https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/MonthlyNIVIssuances/AUGUST 2019 - NIV Issuances by Post and Visa Class.pdf Page 26

There isn't an additional fee to attempt a K-3: "You may file Form I-129F together with or after filing Form I-130. If you file Form I-129F after filing Form I-130, include a copy of the Form I-797, Notice of Action, to show that USCIS received your Form I-130. There is no fee if you are filing a Form I-129F for a spouse to obtain a K-3 visa." https://www.uscis.gov/family/family-us-citizens/k-3k-4-nonimmigrant-visas Odds are it will be IR-1/CR-1.

 

The I-130 can be filed online: https://www.uscis.gov/news/news-releases/uscis-makes-another-form-available-online-filing But not for DCF.

1 hour ago, Burnt Reynolds said:

is there a way to get any of this process done while remaining in Canada to reduce the time being apart?

US domicile (or intent to establish US domicile) is required later at the NVC stage. You can be together while the I-130 is pending.

1 hour ago, Burnt Reynolds said:

Does anyone know if you lose all benefits of an RESP when moving?

"Here is what happens to the money in the RESP: your contributions are yours to keep. You do not have to pay tax on any contributions" https://www.canada.ca/en/services/benefits/education/education-savings/resp/use.html

1 hour ago, Burnt Reynolds said:

we didn't need to file when making under a threshold of US income.

The exemption from filing is if your annual income was less than $24000 (assuming Married Filing Jointly as the filing status). Otherwise, look at your US passport:

Edited November 17, 2019 by HRQX

[HRQX 4,145]

1 hour ago, Burnt Reynolds said:

because I've been too busy to get them their citizenship

Assuming you were eligible to pass down citizenship at the time of their birth, then they were born US citizens. https://ca.usembassy.gov/u-s-citizen-services/child-family-matters/birth/transmit-citizenship/ You'll apply for proof of their US citizenship.

[aaron2020 11,651]

1.  IR-1 is your only real choice.  K-3 are rarely granted.  DCF requires an exceptional circumstance which you don't have.  You could choose to stay with your wife until she is ready to submit her DS-260 visa application which would be about 3-4 months before her visa interview.  You would want to reestablish a US resident to show on the DS-260.

 

2.  Sorry, no idea.

 

3.  Oh boy.  This is going to be a long one.  All the following paragraphs is about 3. 

You are required to file US tax returns even if you made nothing in the US and you owe zero in taxes.  If your income was more than $7,000, you needed to file US tax returns.  In order to petition for your wife, you will need to file US tax returns for the last 3 years.  This is an absolute requirement.  You will unlikely owe anything, but you must file.  

Current income that will continue after you return to the US is what matters.  In your case, it's zero.  You will definitely need a Joint Sponsor who can meet the financial requirements for Form I-864 in order for your wife to immigrate.  If your mom is single, she can be your Joint Sponsor if she has an income above $21,000.

Good luck.

[Burnt Reynolds 5,058]

Thank you all for the responses, they were all very useful. I'm shocked at how few K3's they do nowadays, must have been some change during the last handful of years pushing people to the CR1 route. 

 

HRQX, is a job offer all that was needed to do a DCF? Like they said in that post all I've been reading is how it isn't possible. I wonder if there's others... also the income thing vexes me. 

 

I didn't realize that I still need to file with the IRS even if I have no assets or income in the US, so I undoubtedly will talk to an accountant. The most I made in any given year in Canada was around 85-90k in Canadian pesos so if the stats quoted above are true then I'm assuming its just late penalties I'd pay? As bad as this seems, given how often we've driven across the border for vacations in the US where I used my US passport and no one said anything about this, I'm assuming its easily rectified by filing.

 

However, with me needing to get my children their citizenship before even considering starting the I-130/IR1 (or DCF) for my wife, do I need to worry about this IRS filing matter for worldwide income when going into the consulate to get the kids' CRBA/FS-240 taken care of? It makes me wonder if doing another FPCA/absentee for voting (if still in Canada) is also risky?

 

Having someone else sponsor for me is out of the question. As far as the process is concerned, is it only US income that matters? Is my Canadian income, and my wife's, not taken into consideration? Also, if we start the process in Canada, but I get a US job (that meets the requirements when calculating annual income) by the time that the DS-260 portion needs to be filed not enough either? Or is having an entire prior year of US based income meeting that threshold required? 

[geowrian 22,337]

20 minutes ago, Burnt Reynolds said:

HRQX, is a job offer all that was needed to do a DCF? Like they said in that post all I've been reading is how it isn't possible. I wonder if there's others... also the income thing vexes me. 

A job relocation is one criteria. No guarantees if it would qualify or not...every exceptional circusmtances case is handled on a case by case basis.

 

Quote

I didn't realize that I still need to file with the IRS even if I have no assets or income in the US, so I undoubtedly will talk to an accountant. The most I made in any given year in Canada was around 85-90k in Canadian pesos so if the stats quoted above are true then I'm assuming its just late penalties I'd pay? As bad as this seems, given how often we've driven across the border for vacations in the US where I used my US passport and no one said anything about this, I'm assuming its easily rectified by filing.

No late filing or payment fees if you don't owe anything. This is a clerical issue that needs to be resolved, but you unlikely will owe any actual taxes due to the FEIE.

 

Quote

However, with me needing to get my children their citizenship before even considering starting the I-130/IR1 (or DCF) for my wife, do I need to worry about this IRS filing matter for worldwide income when going into the consulate to get the kids' CRBA/FS-240 taken care of? It makes me wonder if doing another FPCA/absentee for voting (if still in Canada) is also risky?

DCF is a process for a CR-1. A CR-1 can be filed DCF or in the US for domestic processing.

The filing requirement isn't an issue for the children.

 

Quote

Having someone else sponsor for me is out of the question. As far as the process is concerned, is it only US income that matters? Is my Canadian income, and my wife's, not taken into consideration? Also, if we start the process in Canada, but I get a US job (that meets the requirements when calculating annual income) by the time that the DS-260 portion needs to be filed not enough either? Or is having an entire prior year of US based income meeting that threshold required? 

Any income you plan to use to sponsor somebody must continue from the same source upon return to the US. That excludes most,. but not all, foreign-earned income. There is no way to support somebody on income alone that will terminate when they immigrate (although significant assets can be used).

The income requirement comes into play when the I-864 is submitted - at NVC is filed in the US, or at the interview if filed DCF.

There is no minimum amount of time that the income must be earned. That said, the CO will look at a totality of the circumstances in the public charge determination.

Montreal is notoriously strict on US domicile. You almost certainly will need to move back to the US prior to the visa being issued...intent alone is very hard to be accepted for Montreal. This could be weeks to a couple months beforehand, but it will be a period of separation.

Edited November 17, 2019 by geowrian

[HRQX 4,145]

1 hour ago, Burnt Reynolds said:

I'm shocked at how few K3's they do nowadays

"Speculation exists that the NVC and USCIS conspire to limit K3 visas by delaying K3 processing until the I-130 petition can catch up. If the I-130 is approved, there’s no reason to issue a K3 visa, and the application can be administratively closed." https://citizenpath.com/k3-visa-process/ USCIS and DOS can't completely remove the option of the K-3 because it's a path codified in immigration law. Only Congress can pass a bill and then the President sign the bill into law to remove the K-3 path. Most members of Congress would fail the pop quiz question "What is a K-3 visa?"; LOL

 

Recently, sending a I-129F after filing the I-130 seemed to have sped up the I-130 approval for some cases. But that might no longer be the case:

 

Edited November 17, 2019 by HRQX

[aaron2020 11,651]

CBP doesn't know or care if you filed tax returns when you cross the border.  Filing tax returns are an absolute requirement to petition for your wife to immigrate to the US.  With the income stated, you are unlikely to owe anything.  

 

You do not need to worry about tax returns for the CRBA.  Your children have a claim to US citizenship.  

 

If a Joint Sponsor is out of the question, then you will need to return to the US before your wife and work in the US for awhile before you can show a steady and reliable income.  Without a Joint Sponsor, you can expect to be separated from your wife for a year or two.  Your Canadian income will not count.  A recent job will not count.  You need a history of a steady and reliable income in the US.  A history will require time.  

Edited November 17, 2019 by aaron2020

[Lucky2Lucky 2,526]

I don’t think it’s been mentioned but get the two kids CRBA out of the way- less you have to worry about down the line.