Business Travels while waiting for AOS /Green Card

[wackodacko 0]

Hi Guys,

I think my situation is a bit non-traditional, but here it is:

I am a US Citizen, and my husband is a Philippine Citizen. However, he studied in the USA then worked from 1998 to 2004 on an investors visa. We got married in the Philippines in 2004, and stayed there because he set up a company (a call center) and its been working well. We travel a LOT to various countries, including the USA because most of his family, as well as my family live in the USA. Every time we enter the USA, the immigration officers keep hassling us because he is a tourist but comes here too often. Our pattern is.. 2 -3 mos in the USA, then 2-3 months out (out meaning traveling around Asia for both business and pleasure)

Anyways, we finally decided to take the plunge and get him a green card to avoid more hassles at the airport about why he has a tourist visa but comes to the USA often (although always in-status!!) After reading so much info and even getting info from the immigration officer at CIS, I am hearing horror stories from other people. If we file for the AOS and advance parole I-131 and travel outside the US for 2-3 months while waiting for the green card... will there be a chance getting denied entry when coming back to the USA? My husband's company is based in Manila, though 100% of his clients are in the US (outsourcing thing). He needs to be in Philippines during tax season and oversee company audits, and restructuring for 2-3 months early next year - mid january til mid march 2009 to be exact. We will come back to the USA in mid march, but depending what the company needs him for, he may need to go back maybe in June or July for 2 -3 months again. Even if the I-131 parole is valid for 1 year.. if he keeps traveling, will they cancel his green card application? Anybody have experience with this?

Its a horrible situation to be in... when you're a tourist..they say you come to the USA too much. Then when you're a green card, they might say you go OUT of the USA too much. In this day and age of global business, you'd think they would understand that business owners need to travel even if they do intend to reside in the USA and fulfil their green card residency requirements.

would love to hear your thoughts. I'm currently compiling all documents, but worried about actually sending it in for filing next week.. HMMMM

Thanks

[wackodacko 0]

by the way, the lady at CIS said that i must E-file the i-131, then go back to her at her window/office and she will follow it up ... but on the instructions on E-filing says if its an emergency, dont e-file it, use the paper document.

[Jon&Lindsey 0]

I'm not sure I understand your case... do you mean that your husband is currently in the US on a visitor visa and you want to file AOS? Did you decide to do this after his entry, or before? It is visa fraud to enter on a visitor visa with the intention to file AOS, and filing AOS from a visitor visa is therefore not an entirely risk-free procedure. Having a business in another country does look like intent to return to the other country and not remain in the US, but then you are already married, your husband has spent a lot of time here and has family here, which could look like intent to stay. You could have to prove that you did not already have the intent to do this when you and your husband last entered the US. Sure, it may well all go fine, but you should be aware of the potential risks.

To answer your question about use of AP, it is generally advised that those adjusting from visitor status do not leave, as AP does not guarantee re-entry (if you were doing AOS from an immigrant visa, like those with K1 fiance visas it would be ok). If you do file AOS now, it's highly unlikely that you will be approved by mid-Jan. I think you should research other options, for example him leaving and then filing for a spousal visa, since you are already married. This would be a correct way to do it, without the risks associated with AOS from a visitor visa. I don't know much about spousal visas, but I believe that you do not have to do the AOS process and receive the GC as soon as you enter on the spousal visa.

Edited November 14, 2008 by Jon&Lindsey

[wackodacko 0]

I'm not sure I understand your case... do you mean that your husband is currently in the US on a visitor visa and you want to file AOS? Did you decide to do this after his entry, or before? It is visa fraud to enter on a visitor visa with the intention to file AOS, and filing AOS from a visitor visa is therefore not an entirely risk-free procedure. Having a business in another country does look like intent to return to the other country and not remain in the US, but then you are already married, your husband has spent a lot of time here and has family here, which could look like intent to stay. You could have to prove that you did not already have the intent to do this when you and your husband last entered the US. Sure, it may well all go fine, but you should be aware of the potential risks.

To answer your question about use of AP, it is generally advised that those adjusting from visitor status do not leave, as AP does not guarantee re-entry (if you were doing AOS from an immigrant visa, like those with K1 fiance visas it would be ok). If you do file AOS now, it's highly unlikely that you will be approved by mid-Jan. I think you should research other options, for example him leaving and then filing for a spousal visa, since you are already married. This would be a correct way to do it, without the risks associated with AOS from a visitor visa. I don't know much about spousal visas, but I believe that you do not have to do the AOS process and receive the GC as soon as you enter on the spousal visa.

Hello Jon & Lindsey,

To answer your questions...Yes my husband is currently in the USA on a visitor visa and we are about to file an AOS next week. We decided to do it AFTER we entered of course. Otherwise, if we planned to do it prior, i would already have all my documents and filed it once I arrived, and not dilly daly around and wait til now. After immigration hassled us at the airport, we said, hey..we dont need this @#*$(..we can just file for a green card already. Besides, if we DONT file for a green card now, and we leave in January and plan to return in April /May 2009 on the visitor visa again, there is a high probability they may deny him on the grounds that he has TOO MANY entries (3x/year for roughly 2 mos each in the past 2.5 years, and combined stays of 6.5mos instead of the 6 mos limit for year 2008 due to my unforseen knee operation).

The business my husband put up in the Philippines is an outsourcing firm - 100% of the clients are in the USA, hence the multiple trips to the US yearly.

I agree that the spousal visa would be "the right" way to do it, however, it takes 2 years to get that approved. My family, and most of my husband's family is based in the USA. We are always going back and forth for both business and family matters, and its our way of life already and have racked up quite a bit of frequent flier miles in the process. There is no way that we would want him to be stuck in the Philippines by himself, nor would I want to be stuck in the Philippines with him, waiting around for it to come. The CIS told us that its OK for him to do a VISITOR to GREENCARD switch since we've been married for 5 years already. They frown upon those that do a visitor to greencard switch who have been married for less than 2 years. Lets hope it works out. Worst case scenario is, green card gets denied and he's stuck with a tourist visa... i think

[Jon&Lindsey 0]

I understand what you're saying, but if you legally reside in the Phillippines as a USC, then you may be able to do DCF (http://www.visajourney.com/forums/index.php?autocom=custom&page=dcf), which is where you file for your husband over there, and according to that VJ info sheet, the process only takes weeks-months, and you get the GC as soon as you go back to the US. If you do AOS from the visitor visa right now, you will both have to attend the interview, which could well be during the period early next year when you said you have to be in the PI. You are only allowed to reschedule the interview for life/death situations, and even then many have had problems with the local office not realizing the interview had been rescheduled, and so denying the application based on no show for the interview.

Being married for 5 years will give you lots of proof of a bona fide relationship, but doesn't really help with proving that the intention was not to do AOS and immigrate when arriving on this visit - which is what most people who AOS from visitor visas are most afraid of. Also, there are worse consequences to being denied when trying to AOS from a visitor visa - like deportation and bans from re-entry - as several people mentioned in this thread http://www.visajourney.com/forums/index.php?showtopic=162317. Worst case scenario is that you will have severe problems with him coming back to the US at all. Sure, it may be unlikely, but you should be aware of the possibility.