Austrian wife trying to persuade US Embassy that she doesn't want to stay in US

[Gary36 0]

Hello,

I am a LPR in the US working for a US based company (British citizen). Unfortunately my wife has visited a number of times on the visa waiver program (I know that this is a bad thing, red flags, etc) and on her final visit to see me was questioned for over 5 hours then put back on a plan to Austria.

She had the usual things asked for with her:

$5000 in cash to pay for herself

A letter from myself stating that I would cover her costs

Her registration as a permanent resident of Austria (Austrian citizen)

Return tickets

Apparently she has traveled too frequently to the USA and therefore was not eligible to visit under the visa waiver program any longer. She was told by the immigration officials that if she cooperated she would be put back on a flight to Austria, where she could then go to the US Embassy, obtain a visitors visa and then be allowed back into the country to visit me. They treated her as an immigrant as opposed to a non immigrant visiting the country, probably due to the number of times that she has visited. Although she has no intentions of relocating to the US.

My position means that I travel a lot especially in Europe so I spend a lot of time over there.

Some more back ground information:

We own a property in the US

We own a property in Austria (we rented at the time of the last flight)

My wife has medical insurance in Austria (which we pay for)

All of our family is in Europe

In November I will 5 years on the green card, but with being apart for the past 3 months and living on separate continents for nearly 6 years we are growing very tired of the broken lifestyle.

She has not been to the USA in over 2 years; this is now getting to the point where we are considering calling it a day with the USA and relocating completely back to Europe. This may cause some employment problems but nothing we can not overcome.

She has applied for a visitor’s visa previously and has been turned down. We did not own the property in Austria at the time.

We would like to give it another go to try for a visa, but would like to be as prepared as possible and to have a good idea of what our chances would be.

Any help, comments or suggestions would be greatly appreciated.

Gary

[VanessaTony 3,567]

Well honestly, you need to show strong ties to your home country to get through on the visa waiver and it's obvious that your wife wasn't showing enough info THEN.

To get a visitors visa, just like with the VWP she needs to show strong ties to Austria.

I would have her take evidence of the Austrian property, have health insurance and a letter from her work stating that she works there and for how long she's worked there etc.

Here are the visa facts: http://www.usembassy.at/en/embassy/cons/niv_faq.htm Any time she travels she'll need to take this evidence of ties to Austria with her. Even WITH the visa it doesn't mean she is able to visit all the time. The visitors visa might be approved, but like I said, just because it is, doesn't mean that she is permitted entry if they think she's trying to immigrate and then it'll be cancelled.

Have you considered applying for naturalisation (I think 5 years makes you eligible) and then applying for a IR-1 visa for your wife? This will get her a 10 year greencard. I would investigate this option first personally. It means she can enter as much as she likes but there are residency requirements she needs to fulfil. After 3 years of having a greencard (and still being married to a USC) she can apply for naturalisation too... meaning you can both come and go as you please.

Best of luck in either event.

[connyk 0]

The advice you were given by Vanessa&Tony is very good.

On my last visit I took a letter from my employer stating that I work for them and the date that I would be back, pay stubs, bank account statements, my Austrian health insurance card, proof of various contracts and bills here, letters from family members that I would be back for a certain family event, etc. Didn't have to show any of this at the POE, though. Why was your wife denied the visitor's visa? At the interview, what did she show them as evidence?

[Brother Hesekiel 2,236]

Your experience is the reason why many Europeans are fed up with the US. This includes tourists who just want to enjoy a vacation, spend their money, and are treated like potential terrorists. Why does a 90 year-old Grandmother from Norway or Sweden who's in the wheelchair have to take off her shoes and socks? It's bloody insane, isn't it?

Vent over.

Unfortunately, there's nothing you can do in your current situation.

Whether your wife enters via the WVP or with a B2 visa, the requirements are identical. In either case she will have to convince the CBP Officer that she has no immigration intent. Convincing somebody who is getting paid to assume that anybody who enters the US wants to stay there of the contrary is difficult by itself. However, since your wife has a LPR husband, owns property in the US, and has now bee refused to enter makes it near impossible.

As a LPR you can't really petition for your wife, and even if you became a USC (dual citizen in your case), it wouldn't help you, as getting an IR-1 visa for your wife would require AOS at some point which in turn would make it near impossible for her to continue living and working in Austria.

The only thing I can think of is to get a B-2 from the US embassy in Austria and have the pass stamped with "No AOS possible." I don't know if they will go for it, but I have no other idea what you possibly could do otherwise.

Wish you the best.

Edited March 10, 2010 by Just Bob

[Gary36 0]

Thanks for the response and the information.

We are thinking about the naturalisation process as I am now getting close to the 5 years.

I#ll take a look at the visa facts that you have linked in below to try for a visa in the "between" time.

Thanks again,

Gary

Well honestly, you need to show strong ties to your home country to get through on the visa waiver and it's obvious that your wife wasn't showing enough info THEN.

To get a visitors visa, just like with the VWP she needs to show strong ties to Austria.

I would have her take evidence of the Austrian property, have health insurance and a letter from her work stating that she works there and for how long she's worked there etc.

Here are the visa facts: http://www.usembassy.at/en/embassy/cons/niv_faq.htm Any time she travels she'll need to take this evidence of ties to Austria with her. Even WITH the visa it doesn't mean she is able to visit all the time. The visitors visa might be approved, but like I said, just because it is, doesn't mean that she is permitted entry if they think she's trying to immigrate and then it'll be cancelled.

Have you considered applying for naturalisation (I think 5 years makes you eligible) and then applying for a IR-1 visa for your wife? This will get her a 10 year greencard. I would investigate this option first personally. It means she can enter as much as she likes but there are residency requirements she needs to fulfil. After 3 years of having a greencard (and still being married to a USC) she can apply for naturalisation too... meaning you can both come and go as you please.

Best of luck in either event.

Thanks for the response, I understand the vent as we feel it ourselves as well as the many others.

Just one more question, what does AOS stand for?

Thanks,

Gary

Your experience is the reason why many Europeans are fed up with the US. This includes tourists who just want to enjoy a vacation, spend their money, and are treated like potential terrorists. Why does a 90 year-old Grandmother from Norway or Sweden who's in the wheelchair have to take off her shoes and socks? It's bloody insane, isn't it?

Vent over.

Unfortunately, there's nothing you can do in your current situation.

Whether your wife enters via the WVP or with a B2 visa, the requirements are identical. In either case she will have to convince the CBP Officer that she has no immigration intent. Convincing somebody who is getting paid to assume that anybody who enters the US wants to stay there of the contrary is difficult by itself. However, since your wife has a LPR husband, owns property in the US, and has now bee refused to enter makes it near impossible.

As a LPR you can't really petition for your wife, and even if you became a USC (dual citizen in your case), it wouldn't help you, as getting an IR-1 visa for your wife would require AOS at some point which in turn would make it near impossible for her to continue living and working in Austria.

The only thing I can think of is to get a B-2 from the US embassy in Austria and have the pass stamped with "No AOS possible." I don't know if they will go for it, but I have no other idea what you possibly could do otherwise.

Wish you the best.

[Gary36 0]

Thanks for replying.

My wife took the usual information, proof of Austian residency, utility bills, letters from family ,etc, the one thing that we have differently now is our own property in Vienna and also more evidence of health insurance. The person who conducted the interview was not willing to view the information and proceeded to lecture her on how she should show more roots to Austria and that by my having a green card that I was intending to become a citizen. My wife tried to explain that it was for ease of travel for my work and that I had no intention of becoming a US citizen. Unfortunatley it seems as though the interviewer had already made up there mind......

We will give it a go with the information that everyone has provided and see how it goes.

Thanks again.

Gary

The advice you were given by Vanessa&Tony is very good.

On my last visit I took a letter from my employer stating that I work for them and the date that I would be back, pay stubs, bank account statements, my Austrian health insurance card, proof of various contracts and bills here, letters from family members that I would be back for a certain family event, etc. Didn't have to show any of this at the POE, though. Why was your wife denied the visitor's visa? At the interview, what did she show them as evidence?

[Brother Hesekiel 2,236]

AOS stands for Adjustment of Status (from B2 visitor to Lawful Permanent Resident [LPR]).

If you become a US citizen, and adjust status for your wife, she will become a LPR. As such, she is expected to reside in the US permanently. She can go to Austria once in a while to visit, but longer absence from the US will cause problems. As a spouse to a USC, she will even have a harder time explaining that she's just visiting her husband in the US. What kind of marriage would that be, after all?

I maintain, the only thing I can see happening, vaguely, through a cloud of smoke, is to work with the US consulate in Austria and get the B2 with the "No AOS possible" stamp. This stamp is hammered into passports of visitors, where the CBP Officer at the P.O.E. has doubts and the visitor states that he or she has no immigration intent. If the visitor is lying, this would be clearly documented by the stamp and represents misrepresentation. In your wife's case, it would help to establish that she really only wants to visit, however.

[Sc0tt28 26]

Just one more question, what does AOS stand for?

Thanks,

Gary

AOS (in the context used) stands for Adjustment of Status.

A question for you now - was she refused under what's known as a "visa waiver refusal" or just a discretionary refusal?

The difference is, with the visa waiver refusal, she can't use the visa waiver program in the future. However, if the officer gave her a discretionary refusal and just told her to go home and get some ties and equities and try it again.

I know she applied as a visa waiver applicant but the CBP officer can still give a discretionary refusal and allow the person to use the visa waiver program again in the future.

[Sc0tt28 26]

As a LPR you can't really petition for your wife

An LPR can petition for an immediate relative. Under category F2A.

Check out the "V" non-immigrant classification at USCIS.