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Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 102584
Experience:  Private practice in several areas, including immigration
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When should I declare my intention to enter/remain in the country

Customer Question

When should I declare my intention to enter/remain in the country on an I130? I am a Canadian citizen, married to a same-sex partner for 7.5 years who has American citizenship. I sponsored my spouse for Canadian residency several years ago and we lived there until recently. Our combined income is $175,000 (mine is pension). I have been in the US for a lot of time recently and we now intend to make the US our principal residence due to growing business interests here.
We should have no trouble with him sponsoring me, but I'm not clear on when I should declare that to the USIS. I will be heading home to Canada soon for a brief visit where we have sold our principal residence (still own two other residential properties there, as well as several homes in Costa Rica and several properties in the US). I travel now using a Nexus card and come in as a visitor, but will probably not go home again for some time after this trip. Should I declare on entry this trip or wait and declare for a change of visa status once I am here? I have major volunteer commitments here in the US which would be jeapordized if I was refused entry.
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Ely replied 2 years ago.
Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; (B) f you receive a phone call offer while we chat, know that this is an automated test feature the site is running. Due to possible ethical issues, the site allows experts not participate in phone calls and I normally decline them. Unless the phone call offer you receive literally states "THIS OFFER IS FROM ELY" (which means I personally initiated it), please do not entertain any such offer; and (C) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am guessing you are here on a temporary visa? If so, then see here. Temporary visas by and large do not allow dual intent, meaning that one cannot (or should not) file an I-130 while here on a visitor visa.
The exception to this is if one has been in USA for 90+ days since last entry, where then the presumption that one had dual intent is no longer immediately applied and one can normally file for an I-130 without too much trouble.
As such, one wants to file for an I-130 after having been in USA for 90+ days, and without any plans to travel abroad for the next 6 months or so while the I-130/I-485 is being processed. This would be the best, ***** ***** to do this if one insists on staying in USA while the I-130 is processed. Prior to filing, there is no need to tell USCIS of any plans.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
Expert:  Ely replied 2 years ago.
You needn't open a new question if you only want to respond to me, but simply use the send/reply button as you have it available.
Additional information to your question: I'm 60, retired and a Canadian Citizen. My spouse is American, with Canadian Permanent residency (I sponsored him in 2012). Recently we came here to Missouri to visit his family and have now purchased several renovation properties, and play a key leadership role in the community. As a result, we have decided that we want to make the US our home for the foreseeable future. I think I mentioned we are same-sex couple, married in 2007 in Canada.
My answer stands as is, then. As for this being a same sex couple, see here:
Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage. The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.

Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating. Please do not just open another question - simply reply to here if needed or rate and submit when finished.