Considerations in choosing K-1 - Canada to US via K-1 Visa

Because Sergio is a Canadian citizen, and I live only 40 miles from the Detroit/Windsor POE, we are very lucky and get to spend a lot of time together, and generally visit each other three out of four weekends of every month. While many couples going through the K-1 process (or other marriage-based visas) don't have that luxury, it raised special questions for us, like would Serge get flagged at the border once we filed our K-1 petition, and no longer be able to enter the US? Would it be quicker to get married ASAP and file while he was still employed in Canada, hoping it all would be finished before the "church wedding" in November? Could we do Direct Consulate Filing (aka DCF)? Should he come in and we would just get married and he would adjust his status? What was the best plan?

I did a bunch of research and asked some very knowledgeable people on the newsgroup a bunch of questions. Serge talked to some friends with immigration law experience. We decided that the best route for us was the K-1 Visa. Because we got engaged almost a year before our wedding date, we had plenty of time to wait out INS's processing time, the consulate processing time, etc. We were told that the whole process (from filing through crossing the border) could take 4-6 months, so we filed 9 months before our wedding date, just to be safe.

Instant AOS in Detroit

One reason we decided to go the K-1 process was that we would be using the Detroit INS office, which is currently offering "instant" Adjustment of Status for K-1 visa holders. That means that we file in person, after we obtain a certified copy of our wedding license, and if we have no problems, Sergio will leave the office that day as a "conditional" permanent resident. We will not have to wait the up to two years that other K-1 couples have to, nor will we have to pay for or renew temporary EADs (employment authorization document) or Advance Parole documentation. This was a huge consideration, because it will (hopefully) mean that we don't have to deal with the INS for almost two years, when we will file to remove the "conditional" status on Sergio's green card. What a wonderful wedding gift, as someone on the newsgroup pointed out!

Crossing the Canadian/US Border:

Canadians entering the US to visit do not need a visa, they just show their passport (and some border crossings require only a birth certificate, although that is changing post 9/11). It's my (albeit limited) understanding that Canadians can stay for up to 6 months in the US when they enter, although they do not have the right to work. So Serge has had not problem visiting all the time, even crossing the border twice in a weekend. But now he's going to have documented immigration intent - what would that mean? No visits for six months while the visa is processed? We asked some people who were on the NG what they thought would happen, and they all indicated that he shouldn't have any trouble crossing the border as long as he:
- Carries proof that he intended to return, including copies of his lease, his bank account statements, and a letter from his employer that he was planning to work until our wedding in November. Serge also drives a company car, so we made sure that was in the letter signed by his boss. He also has a copy of the contract from the place we are having our wedding reception at, to show the wedding isn't for several months.
- Never lies, and doesn't volunteer. The INS takes a dim view of people lying, as do the POE customs/immigration people, so it's better to answer all questions truthfully. Until we got our first NOA, he said he was going to visit his "girlfriend." After we got our first NOA, he changed that to "fiance." So far he has only been asked once about whether he was going to immigrate and he and the customs agent talked about the K-1 process for a minute.
- Doesn't bring too much luggage or personal effects on any one trip. He only brings enough clothes for the weekend.
Serge crosses at the Ambassador Bridge in Detroit, fyi.

K-1 versus getting married and filing:

Another option we explored was whether it would take less time or be easier for Serge to start working if he came to the US and we got married. The problem for us is that being Catholic, we wanted to marry in the church, so we couldn't rush that process (it takes 9 months of prep time in our diocese, which is Lansing). We also really wanted to live in the same country after we got married.

We considered waiting to do anything with the INS, just having him enter in late November, 2002, and not admit he was coming to marry, get married, and then not leave and file as my husband. However, we found out that that is about the worst way to do this. At least in our experience, when he crosses the border, US Customs always ask him how long he intends to stay. He always says a weekend, a week, whatever. Since our intent, when he crossed, would be for him to stay, he would be lying by saying he intended to leave. The INS takes a very dim view of lying and neither of us wanted to risk him being banned from the US. And, even if he did make a "clean" entry (i.e. he didn't lie because he wasn't asked about how long he intended to stay), the INS probably wouldn't believe that we "just decided" to get married since we are having a big wedding that would be clear took a lot of planning.

Another way for us to marry and then work on the INS end of things would be for us to marry immediately, and then I could file withe INS (I think via a K-3, but don't hold me to that). He would continue working in Toronto until the paperwork was approved. The problem is that he would probably not be allowed into the country (at least it was more risky than with the fiance visa process) once we married but while we were waiting for approval from the INS/Montreal consulate. Customs would probably make the assumption that the spouse of a US citizen intends to immigrate when he comes into the US, he could be denied entry. It was a risk we didn't want to take. Plus, as I said above, we want to be together after we get married, it's hard enough being apart while we're engaged. Plus we aren't getting married until November, so it would add months onto our wait.

Direct Consular Filing (DCF):

This was not an option for us, because Serge lives in Canada, and no consulates in Canada do this. But it's a great option for those in countries where the US consulates do offer it.

Our considerations in choosing K-1