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Discussion Starter #1
Hello all,
I am a US Citizen living in England with my British husband and our 3 year old, who has dual citizenship in the UK and US.
We are looking to move to the US and need advice on which visa route my husband should take. I will have a job as soon as we arrive in the US and I have a family member that can be my co-sponsor for form I-864, as I won't quite reach the earning criteria.We don't have a lot of time on our side, so if anyone has advice on which visa route would be best.
We have been told to apply for the I-130 from here in the UK and then once that is approved me and our daughter should go to the states and be separated from my husband for however long it takes for his I-485 to be approved. We aren't really comfortable with this route as it will already be difficult enough on our daughter with the move.
Is it possible, as it states on the USCIS website, to already be in the states together as a family, him entering on the visa waiver system with us, and applying for I-130 and 1-485 at the same time? Obviously if any other visas need to be applied for while he is waiting we will, such as temporary work visas, etc.
Any and all advice will be much appreciated.
 

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From the USCIS...

If you intend taking up permanent residence in the United States, you are required to wait until the immigrant or fiancé(e) visa is issued. You cannot reside in the U.S. on a tourist visa or visa free under the Visa Waiver Program while waiting the issuance of the visa.

However, if you wish to make a temporary visit at the end of which you will return to your permanent residence outside the United States, you may travel on a tourist (B-2) visa, or visa free under the Visa Waiver Program, if qualified.

If applying for a B-2 visa, you will be required to furnish evidence of your residence outside the United States to which you intend returning at the end of your temporary stay. Although a pending immigrant or fiancé(e) visa application is not necessarily conclusive evidence of intent to abandon a U.K. residence, it is a factor considered by consular officers reviewing a visa application. If you are unable to convince the consular officer reviewing the application that you do not intend abandoning your residence, you will not be issued a visa.

When traveling to the United States either with a visa or visa free under the Visa Waiver Program, you should be sure to carry with you for presentation to U.S. immigration evidence of your residence outside the United States. If the immigration inspector is not convinced that you are a genuine visitor for pleasure, you will be denied entry into the country.
There is clearly risk in this approach, as there may be a perception that your spouse intends to stay in the US beyond visa requirement, as he will have stronger connection to the US through you and your child. So a job, home (mortage/rent), letter from his employer stating he is expected back etc... would all be strongly advised.

Its worth noting that while ordinarily all the processing of the petition is done in the US (the cause of most of the delay in processing), the USCIS may authorize the Department of State (ie. the local consulate) to adjudicate their case in certain emergency situations.

one of those grounds is:

A U.S. citizen petitioner, living and working abroad, receives a job relocation within the same company or subsidiary to the United States, or an offer of a new job in the United States with very little notice.
There will still be a separation, but shorter.
 

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Entering the US under the Visa Waiver Program with the intention of then applying for permanent residency is fraud, and if the application is refused your husband will be deported and not able to use the Visa Waiver program again. With a first refusal any future applications will be heavily scrutinised.

Consequently, this route is not recommended.

You must apply for the I-130 while in the UK and wait for the process to be completed. Currently it could take up to a year.

YOU can move over when you like, or you stay in the UK and travel over together.

Looking at your old posts, did you not get your ILR visa?
 

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Its strange isn't it...

A fiance can easily enter the US and then apply for a change of status to await the outcome of the I-130 petition, so long as they marry within 90 days, but they make it hard for a spouse to do the same.

But I agree with Crawford, the way not to do it is apply for a tourist visa and then make the I-130 petition onshore.

Applying for an Visa, after the I-130 petition will, as I posted above may be difficult, as your spouse will have to demonstrate that there is no intention to abandon his UK residence. Which can be difficult if the rest of the family is in the US.

If the job in the US is with a company that is related to the one you work for in the UK, then the expedited process I mention will reduce separation - still can take 6 months I gather.
 

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Discussion Starter #5
Moulard,
Thank you so much for your reply. The information you have given is so helpful.

Do you think it might be a shorter seperation time if my daughter and I went to the states as soon as possible and I submit the forms I-130 and I-129F at the same time? That way my husband can enter on the K-3 Visa and then apply for his green card anytime after that?

I am just trying to look into every option that makes this move easiest on our daughter.

Thank you
 

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Moulard,
Thank you so much for your reply. The information you have given is so helpful.

Do you think it might be a shorter seperation time if my daughter and I went to the states as soon as possible and I submit the forms I-130 and I-129F at the same time? That way my husband can enter on the K-3 Visa and then apply for his green card anytime after that?

I am just trying to look into every option that makes this move easiest on our daughter.

Thank you
The K-3 is obsolete .....

There is no shorter route - you submit the I-130 for the petition and then when that is approved you move onto the I-864 support forms etc.

Why are you talking about an I-129F form? That is for a fiance application and you are married ??
 

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Its strange isn't it...

A fiance can easily enter the US and then apply for a change of status to await the outcome of the I-130 petition, so long as they marry within 90 days, but they make it hard for a spouse to do the same.

But I agree with Crawford, the way not to do it is apply for a tourist visa and then make the I-130 petition onshore.

Applying for an Visa, after the I-130 petition will, as I posted above may be difficult, as your spouse will have to demonstrate that there is no intention to abandon his UK residence. Which can be difficult if the rest of the family is in the US.

If the job in the US is with a company that is related to the one you work for in the UK, then the expedited process I mention will reduce separation - still can take 6 months I gather.
To apply for a fiance visa is no shorter than applying for a spouse one - AND you then have to go through the process of adjusting status, all of which takes time and expense. During the AOS the applicant cannot work for most of the time
 

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Discussion Starter #8
Sorry I did not see your replies, Crawford and Moulard, as I was writing mine above.

Crawford, No, I did not get my ILR. We were put on the 10 year route so it is 5 more years until that happens.
You said I could remain here in UK until I-130 is approved and then travel together? Or do we need another visa approved first before we can travel together?

Moulard, my job in the US is not related to the one I held here, so that would not be an option for me unfortunately.

Thanks again for all of your help.
 

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Discussion Starter #9
The K-3 is obsolete .....

There is no shorter route - you submit the I-130 for the petition and then when that is approved you move onto the I-864 support forms etc.

Why are you talking about an I-129F form? That is for a fiance application and you are married ??
I understood it was for Spouses as well, but if it is obsolete then no worries. Thank you
 

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Discussion Starter #10
The K-3 is obsolete .....

There is no shorter route - you submit the I-130 for the petition and then when that is approved you move onto the I-864 support forms etc.

Why are you talking about an I-129F form? That is for a fiance application and you are married ??
Crawford, do I need to be in the US before I submit the I-864 forms? To show that I am working? Or can I do that from here and have my family member in the US fill out their's as well. Since I will not be earning enough, my family member will be co-sponsor.

Thanks for all info again.
 

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I understood it was for Spouses as well, but if it is obsolete then no worries. Thank you
The K & V vistas are still on the books, but they have never really filled their legislative intent. They are obsolete because USCIS now takes less time to adjudicate the Form I-130, than it does to issue a K or a V visa... I seem to recall reading somewhere that there were less than a dozen K visas issued last year.
 

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The K & V vistas are still on the books, but they have never really filled their legislative intent. They are obsolete because USCIS now takes less time to adjudicate the Form I-130, than it does to issue a K or a V visa... I seem to recall reading somewhere that there were less than a dozen K visas issued last year.
K3 is still an option BUT it poses considerable risk as there is no recourse to USCIS decisions. Processing time is the same as spousal Green Card as it uses I130. There is no adjustment of status for spouses wntering the US under VWP.

Issued visas can be viewed on travel.state.gov under bulletin. Processing times are available on uscis.gov

OP can sponsor with assets.

I do not know what you mean by V visa.
 

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Crawford, do I need to be in the US before I submit the I-864 forms? To show that I am working? Or can I do that from here and have my family member in the US fill out their's as well. Since I will not be earning enough, my family member will be co-sponsor.

Thanks for all info again.

To apply using your income to meet the financial requirements, then, yes, you would need to be in the US and earning. (Prospective employment is not relevant).
The sponsor needs to meet the US poverty level at 125%, which means you need to be earning a minimum of $20,688 per annum. If you cannot meet this level then you need to have a joint sponsor.

You say you already have a joint sponsor, so one way of not being separated is if the joint sponsor can cover the full amount of $20,688 and not just the shortfall.
Can they do this? You would not then need to move to the US before your husband.

The process is that you submit the I-130 first in the UK (the petition). This will take several months to process, and when approved you move to the next step which includes the I-864. At this stage the joint sponsor also completes this form.

https://www.uscis.gov/i-864

https://travel.state.gov/content/tr...nt-visa-process/step-1-submit-a-petition.html
 
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Discussion Starter #14
To apply using your income to meet the financial requirements, then, yes, you would need to be in the US and earning. (Prospective employment is not relevant).
The sponsor needs to meet the US poverty level at 125%, which means you need to be earning a minimum of $20,688 per annum. If you cannot meet this level then you need to have a joint sponsor.

You say you already have a joint sponsor, so one way of not being separated is if the joint sponsor can cover the full amount of $20,688 and not just the shortfall.
Can they do this? You would not then need to move to the US before your husband.

The process is that you submit the I-130 first in the UK (the petition). This will take several months to process, and when approved you move to the next step which includes the I-864. At this stage the joint sponsor also completes this form.

https://www.uscis.gov/i-864

https://travel.state.gov/content/tr...nt-visa-process/step-1-submit-a-petition.html
Yes, my joint sponsor can cover the full amount. So we will start with the I-130 asap and then go from there.
Thank you for your help, as well as everyone that has given advice.
 

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From the USCIS...



There is clearly risk in this approach, as there may be a perception that your spouse intends to stay in the US beyond visa requirement, as he will have stronger connection to the US through you and your child. So a job, home (mortage/rent), letter from his employer stating he is expected back etc... would all be strongly advised.

Its worth noting that while ordinarily all the processing of the petition is done in the US (the cause of most of the delay in processing), the USCIS may authorize the Department of State (ie. the local consulate) to adjudicate their case in certain emergency situations.

one of those grounds is:



There will still be a separation, but shorter.
There is no processing in US consulates right now and no ETA has been issued.
 

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There is no processing in US consulates right now and no ETA has been issued.
Firstly, I was talking in generalities in terms of what is allowed under the various field manuals that define policy and procedure outside of current restrictions. Secondly, that said, what you is equally not true or at best is a generality.

Whether or not a US consulate was open, and to what extent they were open has been managed on a nation by nation (and even city by city) basis for some time now. The only things where global treatment is the same are H1B, H2B, H4, L and certain J categories which are handled by exception only due to Presidential Proclamation 10052.

A case in point, in New Zealand the consulates resumed certain immigrant and non-immigrant visa services, including employment, student, petition-based, and tourist non-immigrant visas, K fiancé visas, as well as IR-1/2, CR-1/2, IR 3/4, SB-1, and EB-5 immigrant visas on the 20 of July.

I will admin things have gone backwards (as of yesterday) and that they are now encouraging the rescheduling of "routine services" in light of all of NZ returning to Alert level 2.

Closer to home, the U.S. Consulate General in Sydney resumed limited appointments for passport and citizenship services on 22 June. Again limited services.... lets face it, no need to issue visa, when Australian's are not allowed to leave the country unless granted a hard to get exemption. In Melbourne, on the other hand, it is open (mostly to support absentee voting), but current restrictions mean it is only able to service people who live within 5 km.
 
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