I-130 or Fiance Visa - which is best for us?

[AnnainCanada]

Hello,

I am a US citizen who has been living in Canada with my Canadian common-law spouse for the past 3 years. We plan to move back to the US permanently in 4-5 years, but would like to get married in the US (near my family and friends) this year (2013) before we relocate back to the US permanently. My question is, I am afraid if we get married this year in the US while on vacation, then return to Canada to live for another 4-5 years, it will be harder for me to sponsor him to move to the US with me later as he will have to remain outside of Canada while his petition is being processed.

First, may I sponsor him for a family-based Green Card while I am living in Canada? May I also sponsor my step children while I am living in Canada (they are under 18)? Or do I have to relocate to the US first, then sponsor him and my step children while they remain in Canada? (which is not ideal).

On my stepchildren, do my spouse and I also need to get their biological mother’s permission for me to sponsor them? Or can I sponsor them with his permission only?

Also, we will have our own child who has his US citizenship (the baby is due this summer). I am assuming I do not have to sponsor our own child since he will have a US citizenship and US passport. So the only children I need to sponsor are my spouse’s two children (Canadian citizens) – correct?

I understand that the Fiance Visa that might work best for us, but the problem is - we don't want to wait 4-5 years to get married right before we move back to the US -- we wanted to get married this year. If we applied for the Fiance Visa this year, would he be able to move back to Canada for 4-5 years afterwards? Or does being in the US on a Fiance visa mean he has to stay in the US from that point on? (understanding of course that after we marry, he would file for an Adjustment of Status).

Finally, if I am allowed to sponsor him while I am living Canada for the I-130, and he gets his Green Card before we move to the US in 4-5 years, will the Green Card expire if he is not employed and/or living in the US by a certain date? How can I ensure his Green Card status remains legal during our wait to move back to the US?

Basically: I want to sponsor him for a Green Card as an immediate relative (spouse) but not live apart while doing so. And we don’t plan to move permanently to the US for 4-5 more years. Since we are both currently living in Canada – which is the best possible route — the I-130 or the Fiance Visa?

Additional information: I do have a US address as I own property there.

Thank you,
Anna D.

 

[Jackolantern]

My question is, I am afraid if we get married this year in the US while on vacation, then return to Canada to live for another 4-5 years, it will be harder for me to sponsor him to move to the US with me later as he will have to remain outside of Canada while his petition is being processed.

You plan to move back in 4-5 years, so what's the problem? File the I-130 about 6-12 months in advance of when you're going to move back to the US.

First, may I sponsor him for a family-based Green Card while I am living in Canada? May I also sponsor my step children while I am living in Canada (they are under 18)? Or do I have to relocate to the US first, then sponsor him and my step children while they remain in Canada? (which is not ideal).

You can initiate the process from outside the US if you have a US address to which USCIS can send correspondence, but you will need to relocate to the US (and get a job, unless you have sufficient assets or a joint sponsor to satisfy the requirements of the Affidavit of Support) before their interviews.

On my stepchildren, do my spouse and I also need to get their biological mother’s permission for me to sponsor them? Or can I sponsor them with his permission only?

If they're still under 18 when you're ready to return to the US, and the biological mother lives outside the US and still has any custody or visitation rights, you will need permission to move them to the US.

Also, we will have our own child who has his US citizenship (the baby is due this summer). I am assuming I do not have to sponsor our own child since he will have a US citizenship and US passport. So the only children I need to sponsor are my spouse’s two children (Canadian citizens) – correct?

You won't have to sponsor that child if the baby has US citizenship. Just get a US passport for the baby through a US consulate in Canada (and optional but strongly recommended, a Consular Report of Birth Abroad) and bring him/her with the US passport. However, if the baby is born outside the US, the baby won't have US citizenship if the relevant conditions are not satisfied, and those conditions can be complex and difficult to prove. See http://travel.state.gov/law/citizenship/citizenship_5199.html

Finally, if I am allowed to sponsor him while I am living Canada for the I-130, and he gets his Green Card before we move to the US in 4-5 years, will the Green Card expire if he is not employed and/or living in the US by a certain date? How can I ensure his Green Card status remains legal during our wait to move back to the US?

Upon approval after the green card interview at the consulate, he would have 6 months to enter the US and be admitted as a permanent resident. After that initial admission, he can stay outside the US for up to 364 days (or 2 years with a reentry permit). However, that initial delay and the following absence would delay eligibility for US citizenship, as you might expect.

 

[Jackolantern]

One more thing to consider with the timing of the official marriage and how it fits in with your 4-5 year plan: If less than 2 years of marriage have been completed at the time of the consular interview*, a 2-year conditional green card would be issued after the initial entry into the US as a permanent resident, which will later require another round of hefty paperwork in a couple years when it's about to expire, plus possibly another interview.

But if at least 2 years of marriage have been completed, a 10-year card would be issued after a successful interview and admission into the US. Renewal of the 10-year card is a simple formality, much easier and less likely to be denied than extending the 2-year card, and that renewal may be made unnecessary by becoming a US citizen before the 10 years are up.

So if you want to ensure at least 2 years of marriage are completed before the interview, file the I-130 after at least 18 months of marriage are completed.


*if it's less than 2 years at the time of the interview but 2 years are later completed by the time of initial admission into the US, USCIS might have the awareness to recognize that fact and issue a 10-year card, but don't count on it. It's more reliable to have the 2 years done before the interview.

 

[AnnainCanada]

I-130 or Fiance Visa -- which is best for us?

--
There is no problem - I am asking if I should wait until right before we move to the US to apply or go ahead and apply after our marriage in a few months. You are saying that to wait until a year or so before we relocate would be best. I did not know that - that's why I'm asking.

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I still do not know if I should apply through the Fiance Visa (instead of the I-130) or not. And if not, why not?

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I wasn't asking about permission from the step children's bio mom to move the stepchildren to the US, obviously I'd need that. I am only asking about permission to sponsor them. Do I need permission from the bio mom to sponsor them on the application, or not?

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Regarding our own child, I am not confused on how to obtain US citizenship for him - as I said in my original post he will have a US citizenship and Passport asap as I plan to register the birth abroad. I myself was born abroad to US citizen parents and they registered my birth, so I am familiar with that and have already spoken to the US consulate about how do do it and it's very simple.

--

So basically, you advise to 1) go ahead and get married in the US this year, 2) wait about 3.5 - 4 years to apply for the I-130, and that would be best?

 

[Jackolantern]

I still do not know if I should apply through the Fiance Visa (instead of the I-130) or not. And if not, why not?

The main advantage of the fiance visa is the lesser wait time for moving to the US. It is normally issued within 3-6 months, whereas the I-130+immigrant visa route is about 6-12 months.

But the disadvantage of the fiance visa is that it's still necessary to file green card paperwork after entry to the US and go through the adjustment process including another interview in order to become a permanent resident. And the green card will only be a 2-year card. Whereas with the I-130/immigrant visa option, upon admission into the US the permanent resident status is instantly granted, and it will be a 10-year card if 2 years of marriage have been completed.

You're not trying to move to the US within 6 months, so the fiance visa doesn't seem like a good fit, but ultimately it's up to you to weigh the pros and cons of both and decide which is better for you.

I wasn't asking about permission from the step children's bio mom to move the stepchildren to the US, obviously I'd need that. I am only asking about permission to sponsor them. Do I need permission from the bio mom to sponsor them on the application, or not?

You can initiate the process and file I-130 without that permission, but the consulate will later expect proof of that permission by the interview date.

Regarding our own child, I am not confused on how to obtain US citizenship for him - as I said in my original post he will have a US citizenship and Passport asap as I plan to register the birth abroad. I myself was born abroad to US citizen parents and they registered my birth, so I am familiar with that and have already spoken to the US consulate about how do do it and it's very simple.

Good. It's not simple for everybody though, depending on their marital status and history of living in the US. It will be little more complex than it was for your parents when they applied for you, because both of them were US citizens but in your case you're the only citizen parent so you'll have a couple of extra requirements (in particular, proving that you lived in the US for the required number of years) that were not relevant to them. On the other hand, you're the mother so the requirements are not as stringent as if you were the father.

So basically, you advise to 1) go ahead and get married in the US this year, 2) wait about 3.5 - 4 years to apply for the I-130, and that would be best?

I'd say get married anytime between now and 1 year before you're going to move to the US (2 years in advance if you want him to get a 10-year green card), then file the I-130 about a year in advance of the anticipated move.

 

[AnnainCanada]

I-130 or Fiance Visa - which is best for us?

Awesome information; thank you so much.

As far as the baby's US citizenship, I went and spoke to the US consulate a few weeks ago and already got the information I need to establish his eligibility. I've also already obtained my proof of long-term residency in the US so I am good to go there as far as getting his US citizenship.

 

[Jackolantern]

As far as the baby's US citizenship, I went and spoke to the US consulate a few weeks ago and already got the information I need to establish his eligibility. I've also already obtained my proof of long-term residency in the US so I am good to go there as far as getting his US citizenship.

OK. I was just (over)emphasizing that point because other people have been told one oversimplified/generic thing by the consulate before applying, only to find out when they actually apply that it's much more complicated for their circumstances, with the consulate demanding additional evidence and rejecting the evidence they already provided.

For example, the consulate may tell them before applying to provide employment records as evidence of living in the US. But then when applying, they reject that evidence because it's a type of job that could have been done anywhere in the world even if the employer is in the US (e.g. financial analyst, computer programmer), therefore it doesn't count as evidence of living in the US.

But you seem to have properly figured out this so I won't mention it again in this thread.

 

[AnnainCanada]

I-130 or Fiance Visa - which is best for us?

I have been told by the US consulate to provide school records if possible, and employment records work as well. I have 20 years of school records plus 24 of employment records so all together I am fine.

Just posting this for others -- US school records are best according to the US consulate.