Homecoming from Iraq, can she visit

[Battle Geek 0]

First time poster, long time reader, I'll keep it brief. I'm forward deployed to Iraq, filed an I-129F on my Australian fiancee's behalf that

was received by USCIS on April 24th. By the time I come home there should still be 70-90 days of waiting until K-1 approval, I am on a

tight deployment schedule, we can't afford to wait that out, we need to see each other - this deployment has been tough and we are very

eager to be reunited. The plan is to fly her to the US and seek admission with a non-visa waiver, then fly her back to Australia once we get

our 2nd NOA.

According to CBP weather or not she can be admitted while a K-1 is pending is entirely up to the discretion of the customs officer at the

airport, doesn't leave a lot to work with so I'd like some advice as to how we can convince them she intends to return to Australia. She'll

be able to provide statements from school and work that she's expected back, but will that be enough? She's basically a poor student

sharing a flat with her brother (sadly, no lease in her name), and having a K-1 on file signals intent to immigrate, I haven't heard of many

Australians having trouble entering the US, but we'd like some peace of mind here, she'd have to fly 18 hours and we're both a little

nervous about this. Thanks in advance, any advice welcome

[SCFsnoopy 0]

Hey Battle,

Statements from work and school are a great start, it might also be worth getting a letter from her brother stating that she shares a flat with him and he expects her to return (does she pay him any rent? He could note that he has received rent in advance from her or that he's expecting her to continue paying rent upon her return). Does she have any other commitments - mobile phone plan, for example? Student loans? The more stuff you have, the better. I've also heard she should carry a copy of your I-129F petition.

I had a huge amount of trouble trying to enter the US on the VWP last year, all I had was my return ticket and a letter from my employer stating they expected me back at work (which the officer never looked at, in the end). I still think I am extremely lucky that I got through, because the more I think about what happened, the more I am convinced they had already made up their minds that they wanted to bar me entry and it was only lack of evidence for immigrant intent and some heartfelt convincing on my part that got me through. I had four (FOUR) officials interview me one after the other, my luggage was searched, they found my journal and took it away to read and discuss with each other... They asked if I was pregnant (as I could therefore claim status if I gave birth to a child in the US), they asked me repeatedly WHEN I was going to get married (not IF, WHEN - we were NOT engaged at the time), they told me straight out they were positive I was intending to work illegally during my stay... It was really rough.

I think her best evidence is going to be her return ticket and a suitable amount of cash to cover her trip. I, stupidly, was in such a rush to come back to the US to see my man that I didn't stay in Aus long enough to earn spending money - I had only $500 on me for an almost three month stay. That, combined with the fact I'd been in the US for over a year on a J-1 visa only 2 months prior to the second trip threw up major red flags and in hindsight I'm not surprised I was grilled the way I was.

I can't say for certain but I think having the K-1 on files indicates that you are willing and plan to jump through the hoops to immigrate legally, and it might convince them that she plans to return home (she could argue that she needs to go back for the interview ^_~)

Edited June 9, 2009 by SCFsnoopy

[JimVaPhuong 4,863]

They asked if I was pregnant (as I could therefore claim status if I gave birth to a child in the US),

This isn't quite true. Having a child born in the US doesn't give the parents any automatic right to claim status, but it would grant US citizenship to the child. The only way this could lead to either parent getting legal status in the US is if the child petitions for them as immediate relatives, but the child would not be eligible to do this until it was 21 years old. If the parents remained in the US until that time, and did not have any other means to achieve legal status, then they would be illegal and subject to deportation.

The only other possible benefit the child might provide is if the parents were in the process of being deported, but had managed to remain undetected in the US for at least 10 years. In this case, the child might allow them to claim a Cancellation of Deportation defense, using the welfare of the child as the basis. If this defense were successful, it would only stop the deportation - it wouldn't change the legal status of the parents.

It's a commonly held belief that having a child born in the US gives the parents an easy route to legal status, but it just isn't true. Parents of US citizen children are subject to deportation, just like any other illegal alien.

[payxibka 10,045]

First time poster, long time reader, I'll keep it brief. I'm forward deployed to Iraq, filed an I-129F on my Australian fiancee's behalf that

was received by USCIS on April 24th. By the time I come home there should still be 70-90 days of waiting until K-1 approval, I am on a

tight deployment schedule, we can't afford to wait that out, we need to see each other - this deployment has been tough and we are very

eager to be reunited. The plan is to fly her to the US and seek admission with a non-visa waiver, then fly her back to Australia once we get

our 2nd NOA.

According to CBP weather or not she can be admitted while a K-1 is pending is entirely up to the discretion of the customs officer at the

airport, doesn't leave a lot to work with so I'd like some advice as to how we can convince them she intends to return to Australia. She'll

be able to provide statements from school and work that she's expected back, but will that be enough? She's basically a poor student

sharing a flat with her brother (sadly, no lease in her name), and having a K-1 on file signals intent to immigrate, I haven't heard of many

Australians having trouble entering the US, but we'd like some peace of mind here, she'd have to fly 18 hours and we're both a little

nervous about this. Thanks in advance, any advice welcome

assuming that non-visa waiver means she has a tourist visa? Requirements of entry with VWP or with an actual visa are the same

[SCFsnoopy 0]

They asked if I was pregnant (as I could therefore claim status if I gave birth to a child in the US),

This isn't quite true. Having a child born in the US doesn't give the parents any automatic right to claim status, but it would grant US citizenship to the child. The only way this could lead to either parent getting legal status in the US is if the child petitions for them as immediate relatives, but the child would not be eligible to do this until it was 21 years old. If the parents remained in the US until that time, and did not have any other means to achieve legal status, then they would be illegal and subject to deportation.

The only other possible benefit the child might provide is if the parents were in the process of being deported, but had managed to remain undetected in the US for at least 10 years. In this case, the child might allow them to claim a Cancellation of Deportation defense, using the welfare of the child as the basis. If this defense were successful, it would only stop the deportation - it wouldn't change the legal status of the parents.

It's a commonly held belief that having a child born in the US gives the parents an easy route to legal status, but it just isn't true. Parents of US citizen children are subject to deportation, just like any other illegal alien.

Ah, there you go. See, I didn't even know any of that and they still suspected I was going to try and pull one over them that way... shows how suspicious they can be

[JimVaPhuong 4,863]

They asked if I was pregnant (as I could therefore claim status if I gave birth to a child in the US),

This isn't quite true. Having a child born in the US doesn't give the parents any automatic right to claim status, but it would grant US citizenship to the child. The only way this could lead to either parent getting legal status in the US is if the child petitions for them as immediate relatives, but the child would not be eligible to do this until it was 21 years old. If the parents remained in the US until that time, and did not have any other means to achieve legal status, then they would be illegal and subject to deportation.

The only other possible benefit the child might provide is if the parents were in the process of being deported, but had managed to remain undetected in the US for at least 10 years. In this case, the child might allow them to claim a Cancellation of Deportation defense, using the welfare of the child as the basis. If this defense were successful, it would only stop the deportation - it wouldn't change the legal status of the parents.

It's a commonly held belief that having a child born in the US gives the parents an easy route to legal status, but it just isn't true. Parents of US citizen children are subject to deportation, just like any other illegal alien.

Ah, there you go. See, I didn't even know any of that and they still suspected I was going to try and pull one over them that way... shows how suspicious they can be

As I said, it's a commonly held belief, and CBP officers know this. Consequently, a lot of people try to get across the border before their children are born in the (false) hopes that it will provide them an 'anchor' to stay in the US, hence the somewhat derogatory term 'anchor baby'. If you had been pregnant, and if the CBP officers discovered this, you probably would have gotten a lecture consisting pretty much of the same information I outlined above.

Anyway, even though having a baby in the US doesn't grant any automatic immigration privileges to the parents, they still don't want people coming to the US specifically to have their children here. Some parent's desire to immigrate to the US is to provide their children the right to take advantage of the education and professional opportunities in the US. Having the child born with US citizenship would give the child that right, which might be enough for some parents. The child could legally come to the US and live with relatives, go to school here, establish a career, and raise a family.

[Battle Geek 0]

assuming that non-visa waiver means she has a tourist visa?

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I thought you could only apply for one kind of visa at a time? Wouldn't a B-1 application and a K-1 conflict?

Australia is a NVWP country, it's how she visited last time we met - THAT time we had a lot of trouble, border

agent must have asked us if we were getting married about 1,000 times. We'd been talking for maybe 6 months

online but we had actually only just met each other in real life, kind of put us on the spot, he finally took pity on

us though and issued her an I-94 (which we forgot about a month later when I drove her to the Vancouver

airport -- we had to mail that back in a hurry).

[payxibka 10,045]

assuming that non-visa waiver means she has a tourist visa?

---------------------------------------------------------------------

I thought you could only apply for one kind of visa at a time? Wouldn't a B-1 application and a K-1 conflict?

Australia is a NVWP country, it's how she visited last time we met - THAT time we had a lot of trouble, border

agent must have asked us if we were getting married about 1,000 times. We'd been talking for maybe 6 months

online but we had actually only just met each other in real life, kind of put us on the spot, he finally took pity on

us though and issued her an I-94 (which we forgot about a month later when I drove her to the Vancouver

airport -- we had to mail that back in a hurry).

Let's get some facts straight

1) Nobody has applied for a visa yet... You have petitioned the USCIS to determine eligibility of your fiancee to apply for a visa at a future date. The USCIS does NOT issue visas... that is left to the consulates

2) Australia is a VWP (visa waiver program country) not a Non visa waiver program (which would actually mean that a visa is needed)

[Battle Geek 0]

Ahhhh, that makes more sense, awesome thank you

[msu17 0]

And you can apply for a B2 and a K1 at the same time.

[nowhereman 1]

You could also meet in a 3rd country that Aussies can go to w/o a visa (just an option). I served in Iraq as well & there's an option to go on leave, but not to the USA.