I have a common law relationship to a dual citizen of US/Canada,. We are living together in Canada for 8 years. We are

Hello! My name is***** and I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. If I do not respond quickly, I promise I will reply as soon as I can. It may take a little time to research and write your answer.

You plan to immigrate to live in the U.S.?

First, let me explain that IF you have an ESTA Visa Waiver or a B visitor visa (or will apply for one), you should NOT use an ESTA Visa Waiver or B visitor visa to enter the U.S. if your intent is to stay. If they figure out your intent, one of three things can happen if they deny you entry:

a) They will allow you to withdraw your request to enter the U.S. and you can go home, no penalty.

b) They will not allow you to withdraw your request to enter the U.S. and will order you excluded. This has a 5 year penalty that you cannot come back unless you get a very hard to get waiver.

c) They will not allow you to withdraw your request to enter the U.S. and they catch you in a lie and they exclude you with a permanent bar due to fraud and/or misrepresentation and with that charge you cannot come back unless you get a very hard to get waiver.

IF you don't take my advice and you try to come in because you just can't stand to be separated for the many months it will take for you to get the correct visa to come to the U.S., and you do make it in, then you should wait 90 days or more after entry before taking any steps to stay or you could get charged with visa fraud. Take a look at this link:

https://immigrationworkvisa.wordpress.com/2019/09/17/green-card-adjustment-after-b2-entry/

What is happening is that they are cracking down on people that are using ESTAs and visitor visas inappropriately when they have immigrant intent.

IF you don't take my advice and you are lucky enough to get in, then do not marry (if you aren't married yet) until more than 90 days have passed since entry and file the following forms: I-130 (Petition for family member), I-130A, I-485 (application for Lawful Permanent Residency), I-765 (Application for work permit), I-131 (Application for Advance Parole), I-693 (Medical exam that a certified doctor must fill out), and I-864 (Affidavit of support). You will need to file each form with supporting evidence and appropriate filing fees. You can find these forms at www.uscis.gov/forms.

The supporting evidence that you would file would be birth certificates, marriage certificate, divorce certificates if either of you have been married previously, proof of your spouse's U.S. Citizenship, proof of your legal entry into the U.S., and financial documents of your spouse to prove their income over the last year at least.

In about 3 to 5 months after filing, the work permit and Advance Parole (travel permit) should be issued. About 5 to 7 months after filing the interview should be scheduled (though now it is taking longer, so maybe closer to 7 to 9 months). If all goes well, a few weeks later the U.S. Lawful Permanent Residency card (green card) should come in the mail.

If you are already married before you enter the U.S., then this may not work and you may get charged with visa fraud and your spouse would then have to file an I-601 waiver asking that the government forgive you for the fraud and to win that, which is not guaranteed, your spouse would have to prove EXTREME hardship to themselves if you are not granted the waiver and you can get deported in that case.

If you do take my advice and do it the proper way, then there are essentially three ways for you to come and none are really fast, unfortunately (one if you are not legally married yet and two if you are):

1) The K-1 fiance visa takes around 9 months, but you must have met before at least once during the last two years in order to process it. The I-129F is the form that starts the process. After you enter the U.S., then you have to marry and then you have to file the I-485 (the I-130 and I-130A are not needed) and you will have to wait about 5 to 7 months and get another interview that you attend with your new spouse so that you can get Residency. Remember, to use this method, you cannot be legally married until AFTER entry into the U.S. on the K-1 visa.

2) The K-3 spouse visa takes around 9 months, you must be legally married to start this process. The I-129F and I-130 forms are what start this process. Then after you enter the U.S., you must still file the I-485 and wait for the marriage interview about 5 to 7 months later.

3) The CR-1 visa (or IR-1 if your marriage is more than 2 years old) takes also around 9 months (making the K-3 almost obsolete). You must be married. The I-130 is the form that starts the process. But once you enter the U.S., you enter as a Resident and you do not have to file (or pay for) an I-485 nor do you have to attend an additional interview. You just get your green card in the mail a few weeks later.

So the K-1 and K-3 might be a little faster but generally more expensive. The CR-1 (and IR-1) be a little slower, but generally cheaper. And no, there is no middle-visa that you can use to enter the U.S. while that process is pending. You will most likely have to wait outside.

Here is a link to those visas:

http://travel.state.gov/content/visas/en/immigrate/family/fiance.html

and another link:

http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/I-129F%20Petition%20for%20Alien%20Fiance%28e%29.pdf

About the only other thing that I can think of that might shave off a few months from the process is Direct Consular Filing (DCF), IF it is available. Here are some links:

https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/filing-petitions-outside-the-us.html

https://www.boundless.com/immigration-resources/direct-consular-filing/

I know you do not want to wait. I know it is very inconvenient. I know you want to be together sooner rather than later, but I have this same conversation two or three times per day on this website. No one ever likes it and believe me, if there was an easier or faster way, I would tell you. I know you will probably say, "but what about this...?" or "but what about that...?" But I will most likely continue to have bad news for you. I am truly sorry. The problem is that the U.S. concerns over security and fraud in this area are more important than a 6 to 9 months inconvenience to you. The way they see it is that if it truly is a real relationship, it will survive that length of time apart. Again, I am truly sorry. I wish I had a faster and easier way to tell you about.

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