Terence Gorender

I am a Canadian citizen married to a non-resident US citizen (she has never lived in
the USA). We both live and work in Canada. We would like to move to San Diego
California.

From what I have been reading the I-130 is for spouses of US citizens who are
permanent residents. Is this correct?

Do we file something else?

What can we do to speed up the process of entering and working ? [Parol/probation
entry in to the US ?]

Ameriscot

Your wife can file an I-130 petition for you. She doesn't have to be a resident of the US, she just has to intend to establish residence there.

Betastar

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Nope- it is for US Citizens and permanent residents. If you're a US citizen, makes no
difference where you've spent your life, you're allowed to come live in the US, and
petition for your spouse.

Rete

I believe the original poster uses the term permanent resident to mean the USC should have their home permanently in the US. Perhaps they do not know that the term permanent resident is what he will be called when the immigration process is finished. In Canada they are landed immigrants.

I suggest you read the following URL (accept the disclaimer and go to the I-130 section):

http://www.mindspring.com/~docsteen/...o/visainfo.htm

There is much you need to know and one of those things is that speed is not in the vocabularly of the INS here in the US just as it is not in the vocabularly of the Canadian immigration process for spousal visas either.

There is a newly established K-3 which can be used to get you to the US perhaps a month or two sooner then waiting the I-130 out in Canada. First you have to have filed the I-130 and have the first notice of action before you can file for the K-3 and since it is so new there is no timelines available on just how long a process it will be to get the K-3.

Rita

Ameriscot

Just curious about the K-3 visa. Isn't it designed for families where the USC is in the US, and the spouse is abroad? Would a couple who are together be eligible?

jeffreyhy

Ameriscot,

The K3 visa is designed to allow the alien spouses of US citizens to enter the US to live with their spouses as nonimmigrants while waiting for their applications to become legal Permanent Residents to finish processing. Prior to the introduction of the K3, the alien spouses of US citizens had to wait outside the country until the Permanent Resident processing had been completed and an immigrant visa was issued.

Of course, such alien spouses could perhaps have entered the US for business or as tourists, for limited periods of time, if they had the right circumstances, while their immigrant visas were in process. But this was not a viable option for all alien spouses of US citizens.

Regards, JEff

[Edited by jeffreyhy on Oct 19th 2001 at 12:59pm]

Ameriscot

I understand that, Jeff, but if the whole point of the K3 is family unity (that's what it says on the London Embassy website), a couple who are living together outside the US don't have this problem, so are they eligible for K3?

jeffreyhy

Ameriscot,

There is a difference between eligibility and usefullness. There is nothing in the law that provided for the K3/K4 visas that makes a foreign spouse in a family living outside the USA ineligible for the K3 visa. How usefull that visa may be to such a spouse is another matter.

Recognize that the family living outside the USA does have a problem if they want to move to the USA and did not file the I-130 and I-485 far enough in advance of the moving date. The US citizen can move to the USA any time they want, but the alien spouse cannot. At which point they are no longer a couple living outside the USA, are they? They are a couple where the US citizen is living in the USA and the alien spouse is living abroad waiting for their immigrant visa to be approved.

If the couple had enough advance knowledge of the move to the USA, and the foresight to file the necessary paperwork far enough in advance so that the alien spouse could obtain the necessary immigrant visa before the moving date, then the K3 option is of no benefit to them. Or if DCF is an option then they would have no use for the K3 option. However, if they were caught short on time, or cannot DCF, then the K3 may be as useful to them as it is to a couple in which the US citizen has always resided in the USA and the alien spouse has always resided outside the USA.

Regards, JEff

Rete

Actually except for the country of Canada, I don't recall that there is any US Consulate in any other country that will not allow a family with a USC spouse living legally outside of the US to do DCF. In those instances, K-3 seems completely pointless as they can apply for and receive approval of the I-130 within a matter of weeks.

For a couple with a USC and Canadian spouse and they are living in Canada legally, they can't do DCF. However, not knowing the timeline on the K-3 with it having to go to the various other offices before going to the US Consulate, it might mean only the difference of a month or two before approval of the I-130 and in that case it seems prudent to wait out the conclusion of the I-130 rather than coming to the US and having to either return to Canada for the I-130 interview and/or waiting for the scheduling of the interview at the local INS office.

Rita

Ameriscot

Hmmm, if the USC moves ahead of his family to the US, they are indeed no longer together. But that's not the scenario I had in mind. I was thinking of a family who is together and wish to remain together until the spouse is eligible to travel to the US. It looks like gerrymandering to voluntary move to the US and force 3+ months of separation just to take advantage of a K3, only then to have to go through the I-485 process, and EAD process, if desired.

BTW, I believe that the I-485 can only be filed in the US. Outside the US, an I-130 petition and CR1/IR1 visa is sufficient to get full immigration benefits. No need to adjust status as it's already as good as it can get.

I can't see where the K3 is useful for families already unified abroad because the USC can simply petition at the local US embassy, and in most cases can complete the visa process in a matter of weeks. The only exception is Canada, which doesn't do DCF. In a Canadian situation, I was wondering if K3 was a bona fide option, or whether statements from the INS referring, in present tense, to the part of the US where the USC petitioner *is residing*, should be taken at face value - meaning that the USC, indeed, would have to split from his family and maintain two households for the duration of the I-129F and K3 visa process. Doesn't sound like a great option.

jeffreyhy

Rita,

I wasn't aware that DCF was an option everywhere, except Canada, if the US spouse was living legally in the country. Thanks for pointing that out.

In any event, as I said before, being eligible for the K3 option and getting any benefit from the K3 option are 2 different things.

What do you mean by "legally living in the country", by the way? It seems to me that this could be a can of worms depending on what is required to 'live legally' in different countries around the world.

For example, many people live in Thailand, legally, by exiting the country when their tourist or business visa expires and re-entering the same or the next day. Making such 'visa runs' is a very common practice. If a US American man marries a Thai woman while living in Thailand on a 30-day entry, can they DCF? I don't believe they can. How about if the guy has been living legally in Thailand by making visa runs for 5 years (there are many who have) before he marries a Thai woman and they decide to go to the US. Can they DCF? At what point between 30 days and 5 years does DCF become available?

The reason for visa runs is that it is rather difficult to get an immigrant visa to Thailand and become the equivalent of a Permanent Resident in the US. I would expect that every country has a different term for such status and different requirements for and restrictions on such status, if a comparable status even exists. So, if by "living legally" you really mean being a legal resident, the K3 can still be of benefit to families living abroad in certain circumstances.

Regards, JEff

Ameriscot

The answer is that it depends on the specific US Consulate in question. Some (most, I believe) allow US "tourists" to file I-130 petitions (ask the Aussies in the group), and others require some sort of residence (eg the UK, which will accept petitions on as little as a student visa). I think this is just a method of limiting numbers of petitions they wish to handle, and not related to a specific local law.

Rete

By living legally, I mean that the USC has an legal immigration right to live in that country. For instance in the UK, a USC visitor married to a Brit, cannot go to England and apply for DFC for their spouse. They have to have legal right to live in England and only then will the US Consulate allow the USC to file the I-130 for the foreign spouse at the US Consulate.

In many of the Scandinavian countries, i.e. Netherlands, Norwary, Denmark, the USC only need to appear at the US Consulate and apply for the I-130 for their foreign spouse. The USC does not have to live in those countries to do so.

As I mentioned, Canada is the only country that I am aware of that even if you have permission from the Canadian immigration department to live and work in Canada, the US will not allow you to use DCF to bring your Canadian spouse into the US if you a USC. This practice was stopped in late '97 I believe.

Rita

jeffreyhy

Ameriscot,

Originally posted by Ameriscot
I recognize that's not the scenario you had in mind, but it's a scenario that can exist. A US spouse may very well want to remain abroad until their spouse has received approval to immigrate, and if they can that's great. But if the US spouse is working for a multi-national company that says "OK, you're re-assigned to the USA starting next month," or 3 months, or 6 months, that's not enough time for the alien spouse to get immigration approval. Except possibly by DCF.

You may well be right about the use or non-use of the I-485 in this situation, and I may have been incorrect to make mention of that particular application form. The root cause of the whole problem for USCs who marry foreign women overseas is that the immigration process that a foreign fiance(e) goes through while in the US is undergone by a foreign spouse while they remain outside the US. The K3 allows a foreign spouse to be in the US while this takes place, same as a foreign fiance(e).

I don't believe that this is necessarily the case, see my response to Rita's last post. But even if it is the case, we're drifting away from the issue that began our discussion. Whether or not any particular married couple outside the US can gain a benefit from the K3 option, they are nevertheless eligible for it.


Regards, JEff

Rete

Jeff

As for the second part of your question/post, that would depend on the criteria of that particular US Consulate office. Take the gentleman earlier who is going to marry someone from the going to marry a woman in Tokyo and then do the DCF for her at the US Consulate there. He is not nor will he be a legal resident of Japan when he is allowed to do this.

So the K-3 is great but in many instances these married couples could spent the money on a round trip ticket to the country of their spouses and file directly with the US Consulate there for their entrance into the US as CR-1/IR-1's and perhaps only have a wait of 6 weeks. This goes for Russia as well. For them, if they wanted their spouses with them so bloody much, why don't they spring for the airfare and go that route?

FMPOV, the ones that could use the K-3 the most are the PR's that are waiting 3 to 5 years for their spouses quota numbers to be current.

Rita