Left the USA before filing I-485

[lulou 0]

Well, this is a sad topic.. but I need some information.. about two years ago my "spouse" (whom I'd been with for 5 years previous in a solid relationship in another country where we were dual citizens) and I married on the K-1 visa in the USA.. then a month later, before we sent the I-485 form in, he decided that he couldn't hack this lifestyle or the people in the USA..So he left, without me! Basically abandoning the process.. I get that. Well, now he wants to come back for a visit, what sort of ropes is he going to go through in order to get a visitors visa now, as he abandoned the whole immigration process. Is it possible immigration will deny him access back into the USA? (BTW, he's the immigrant, I'm the US citizen and we're still married but have not seen each other since he left)

Any information would be of great use.. cheers..

Lulou

[NigeriaorBust 4,087]

What country is he from ? It will give us an idea of the hoops involved

[lulou 0]

What country is he from ? It will give us an idea of the hoops involved

Australia

and thank you for responding!

[Otto 83]

Well, it sounds like he left before his original 90-day I-94 expired so there is no overstay there.

We don't know anything else about his previous history so that could change things, but baring that - he should have no more problems than he might have had before the K-1 visa entrance. Ties to his home country in his possession probably wouldn't be a bad idea.

[HeatDeath 430]

Prior to AOSing, the K-1 visa is just like a 90 day single-entry tourist visa. You enter the country, you get an I-94 good for 90 days, you leave before the I-94 expires, handing in the I-94 when you leave, and the whole deal is done. A K-1 only differs from a tourist visa in that it has the additional condition that if (and only if) you marry the USC petitioner named on the visa, you are allowed to apply to adjust status to permanent residence. If you never file the I-485, there is no meaningful difference between the two.

As long as he handed in his I-94 when he left, then neither of you have any outstanding business with USCIS. Theoretically, he should be able to apply for a tourist visa, just as anyone else in his country could.

The only problem is, now USCIS know he has an American spouse. That means they are likely to see him as a significant immigration risk. In order to be granted a tourist visa, and to be granted entry by CBP with that tourist visa, he will have to prove to both the local consulate's and CBP's satisfaction that he has no intention to immigrate, by showing very strong ties to his country, primarily in the form of financial commitments: binding employment and/or lodging contracts, mortgages, family ties, etc.If you do a search on this site for posts with the phrase "ties to", you will find more detailed information on the subject.

Unfortunately, depending on his country, it could be very difficult for him to get a tourist visa now, even though he theoretically has no further obligations regarding the now-defunct K-1.

I should also point out that any future attempt by you two to get him a spousal visa, or any (hypothetical) attempt by him to get another K-1 with another petitioner (after an equally hypothetical divorce, obviously) would require him to explain to the IO, in significant detail, the circumstances surrounding his return to his home country. Depending on the country, he can expect quite a grilling from the consulate about that.

The precise level of difficulty he can expect, in any situation, depends a LOT on which country he is in. Some (Canada, most of Western Europe, Australia) are much more easy going about relationship issues like this than others. Others can be very VERY difficult to get through. In some countries, getting a tourist visa if you have any ties of any kind to the US is virtually unheard of. Some are in-between. Where is he now?

ADDED:

Australia shouldn't be too too bad. As a first-world country, he probably won't encounter the presumption of visa fraud common in many poorer countries. If he can show significant ties to Australia, as mentioned above, he should, I think, be able to get a tourist visa with relatively little trouble.

Edited March 21, 2010 by HeatDeath

[besaangel 18]

It is always a possibility that he will go through hardship in trying to return after abandoning his greencard... If he is coming back to the US as a tourist, there is always the threat that he will try to get married again so he will have to prove VERY STRONG ties to his home country

Sorry about your situation...

[lulou 0]

Prior to AOSing, the K-1 visa is just like a 90 day single-entry tourist visa. You enter the country, you get an I-94 good for 90 days, you leave before the I-94 expires, handing in the I-94 when you leave, and the whole deal is done. A K-1 only differs from a tourist visa in that it has the additional condition that if (and only if) you marry the USC petitioner named on the visa, you are allowed to apply to adjust status to permanent residence. If you never file the I-485, there is no meaningful difference between the two.

As long as he handed in his I-94 when he left, then neither of you have any outstanding business with USCIS. Theoretically, he should be able to apply for a tourist visa, just as anyone else in his country could.

The only problem is, now USCIS know he has an American spouse. That means they are likely to see him as a significant immigration risk. In order to be granted a tourist visa, and to be granted entry by CBP with that tourist visa, he will have to prove to both the local consulate's and CBP's satisfaction that he has no intention to immigrate, by showing very strong ties to his country, primarily in the form of financial commitments: binding employment and/or lodging contracts, mortgages, family ties, etc.If you do a search on this site for posts with the phrase "ties to", you will find more detailed information on the subject.

Unfortunately, depending on his country, it could be very difficult for him to get a tourist visa now, even though he theoretically has no further obligations regarding the now-defunct K-1.

I should also point out that any future attempt by you two to get him a spousal visa, or any (hypothetical) attempt by him to get another K-1 with another petitioner (after an equally hypothetical divorce, obviously) would require him to explain to the IO, in significant detail, the circumstances surrounding his return to his home country. Depending on the country, he can expect quite a grilling from the consulate about that.

The precise level of difficulty he can expect, in any situation, depends a LOT on which country he is in. Some (Canada, most of Western Europe, Australia) are much more easy going about relationship issues like this than others. Others can be very VERY difficult to get through. In some countries, getting a tourist visa if you have any ties of any kind to the US is virtually unheard of. Some are in-between. Where is he now?

ADDED:

Australia shouldn't be too too bad. As a first-world country, he probably won't encounter the presumption of visa fraud common in many poorer countries. If he can show significant ties to Australia, as mentioned above, he should, I think, be able to get a tourist visa with relatively little trouble.

Wow.. that was pretty precise! I really appreciate that! Thank you so much for the information.. He's definitely not looking to stay here.. ATM he has his own business set up in Australia and has had it set up for the past 6 to 8 months.. so hopefully that would be strong enough ties to the country, as well as his return plane ticket.

Well, thank you again.. I think you've cleared up the thoughts on all of this for me. Much appreciated!

Kindest Regards;

Lulou

It is always a possibility that he will go through hardship in trying to return after abandoning his greencard... If he is coming back to the US as a tourist, there is always the threat that he will try to get married again so he will have to prove VERY STRONG ties to his home country

Sorry about your situation...

Thx you for your reply! We're still married atm, so that will need to be dealt with before he ever considers marriage to another American again!

Cheers!

Well, it sounds like he left before his original 90-day I-94 expired so there is no overstay there.

We don't know anything else about his previous history so that could change things, but baring that - he should have no more problems than he might have had before the K-1 visa entrance. Ties to his home country in his possession probably wouldn't be a bad idea.

Many thx for your response!! It's much appreciated. =)

[besaangel 18]

All the best hon

[HeatDeath 430]

Much of what I wrote about tourist visas, while generally applicable, may not be applicable to him as an Australian.

According to this website:

http://canberra.usembassy.gov/visa_waiver_prog.html

Australia is a part of the Visa Waiver Program. As long as your husband has complied with the conditions of the VWP and any previous visa he has been issued on all trips (which he seems to have), getting permission to visit the US should be much more of a formality than a normal tourist visa can be.

He should still carry with him documentation of significant ties to Australia (as discussed above, though I would include mortgage or apartment lease/rental agreement information as well as business documentation) for the benefit of the customs officers he will be encountering, but he shouldn't have too many problems, I would expect.

The above page has detailed instructions for the process Australian citizens must use to get travel permission through the Visa Waiver Program. Both of you should read it very carefully.