Filed in USA, now would like to DCF

[hunymstard 0]

Hello,

The short of it is: I am a US Citizen living in Germany with my German husband and our newly born son. We have a petition ON FILE in the USA, but would really love the expedited processing of DCF through Frankfurt so that the baby and I do not need to return to the US without him. How to make this happen? Are there consequences for withdrawing our petition in the US? Can we transfer our paperwork to Frankfurt? Or simultaneously apply from here?

Longer story below

The move to Germany has been a good decision but only happened because it was the only place we could be together when our son was born. I am a medical student in the USA and will need to return in March to finish my last year. Our baby will be six months old then, and our petition could require another 5+ months from then to finish processing and allow husband to join us. We'd really like to be able to stay together as a family or reunite asap. Our I-130 was filed in the US at the middle of July, just AFTER we arrived in Germany, and has yet to be approved. Just found out we're eligible for DCF--or would be if we hadn't already filed in the USA--and that this could be completed in as soon as 3 or 4 months, start to finish! Soooo I'm trying to figure out what it's all about.

Details of our situation are:

-End 2009/beginning 2010 then-fiance living in Canada on work/travel visa and visiting the US on weekends on Visa Waiver Proram

-February 2010, initial 90-day VWP entry expired; attempt to get a second one was denied. Fiance can no longer enter the US without a formal tourist visa. I start traveling to Canada to visit him, instead.

-April 2010 Married in Canada

-April 2010 Contacted US lawyer; chose this route because of husband's denial of US entry and because I planned to leave the US during processing and wanted a solid address and a responsible eye on the process...

-Took FOREVER to get all of the requested paperwork to the lawyer for I-130 completion

-July 2010--8 months pregnant, I was denied entry into Canada (too pregnant, they didn't want the baby to be Canadian); needed a new way to be with husband

-July 15th: moved to Germany together

-July 20th: the lawyer filed the I-130 with the California Service Center

-Nov 2nd: notice that our petition has been transferred to Texas (presumably to even out case loads?)

-24 November: speak to a friend here who is a former paralegal for an immigration law office who is APPALLED that our lawyer didn't mention DCF to us...

All of our forms are already completely complete and all of our evidence has been gathered. It's all sitting in the office of our Oregon-based lawyer. If we can get it all here and file in Frankfurt, things should move pretty quickly! The question is... can we file in Frankfurt?

Thanks in advance for sharing anything you may know...

[payxibka 10,047]

While the paralegal might be appalled... On July 20th the USC was not yet eligible for DCF.

Their is no transfer of paper work option. Their is no option for two actively filed I-130 petitions either. By the time you get the current petition canceled and re-apply and pay the fees again to Frankfurt, you might find the current petition will approve during this time.

[Deputy Purple 1,294]

Don't you have to be a RESIDENT of the country for 6 months to qualify for DCF?

Resident doesn't mean living there on a Visitor's entrance (VWP, Visa etc) but actually have been admitted to the country as a Resident.

[hunymstard 0]

I know we were not eligible for DCF at the time of the filing, and I don't blame the lawyer for doing things the way she did... but it would have been nice to have had a discussion that included the ability to file DCF after a few months! Nothing that I can find for Germany denotes a six month--or any other--time requirement. If you have other information I'd love to see it!

An email to the Consulate asking specifically about whether we qualify was (of course) returned with this link: http://germany.usembassy.gov/visa/uscis/i130/ where we find:

"The U.S. Citizenship and Immigration Services at the U.S. Consulate in Frankfurt accepts I-130 petitions by mail or in person from U.S. citizens who reside in Germany. U.S. citizens whose principal residence is not in Germany, and/or are abroad temporarily as a visitor or on business, must file the petition in the United States."

I am not abroad as a visitor or on business and I posses the "Evidence of Residence" required to file. Right now, I have no other home than Germany, and as of September I have lived here longer than I would have been able to had I not been admitted as a Resident (a super easy process given that I am married to a German. Seriously... incredible.) We will be headed to the Consulate in Berlin on Thursday to register our son's birth and I hope to confirm our eligibility with someone there, but from everything I can find, we qualify.

The question then is how to go about it!

payxibka-Thank you for confirming that the only way to do it is to cancel and reapply. I figured as much, but cannot find information about cancelling/withdrawing and especially importantly, cannot tell if there might be consequences?

When we started the process we were told "8-12 months" was the average. The short end of this would have us finishing at the same time as Restarting a "3-4 month average" process--but were it to take the whole 12 months, restarting and doing DCF could make our lives much much easier, much much sooner. I know there are no guarantees. I know it's a gamble...

I read something on a .gov about there being a minimum 12 week time period between my husband's approved I-130 reaching Germany and his interview, which seems to be the same amount of time that it's taking from petition initiation-to-visa in Frankfurt right now. So--yes.

I guess current questions are:

-has anyone else on here done similarly?

-what is involved in cancelling a petition?

-are there consequences for this?

We already have all of our evidence compiled and our paperwork filled out for all of the steps involved. I believe I've seen in at least one person's timeline that his I-130 was approved on the spot. Is this common at all?

thank you.....

[hunymstard 0]

Apologies for my "baby brain". Not functioning at a 100% these days. Good thing these babies are so darn cute. I realize this thread could have a couple of potential homes and that perhaps I ought to search the archives a little harder. Thanks for reading and any advice or experiences you can share!

Searching the forum DOES give some advice as to how to withdraw my application, but I can't seem to find anyone who wanted to then resubmit another way? Might there be consequences? Could withdrawing cause us to be ineligible to immediately refile? The citations about how to withdraw include the statement, "However, a withdrawal may not be retracted"--what does that mean, exactly?

Furthermore, thoughts on how this step might affect the timeline of it all would be hugely appreciated....Saving two weeks might not be a huge deal, but saving four really would be.

Also--I do realize we'd have to pay double the fees, but doing so is going to be way cheaper than living in two different homes in two different countries and trying to attend medical school without the support of my spouse/baby's papa...

[Christi85 86]

Sorry, no idea if and how you can do that, but I'm not sure if it's a good idea at this point even if you qualified for DCF.

If you filed in late July and it's now been 4 months, it looks like you're pretty close to being approved for your I-130 (it takes 4-5 months on average). No point in filing DCF now, in my opinion, as you'd only end up saving maybe a couple months but you'd be spending a lot of money and you'd possibly complicate your case. After the I-130 approval, you're looking at another 4 months or so till the interview, so we're really talking about just a month or two after March that you'll have to live separately until you're reunited.

In my opinion, it's not worth the pain and the money for just a month or two of living away from each other.

Good luck whatever you decide!

[Christi85 86]

Just noticed that you moved to Germany in mid-July.

Even if the Frankfurt Embassy accepted your current visa for DCF (normally a visitor's visa isn't enough - you'd need a resident visa such as a work permit), you'd have to wait until at least mid-January to file (the 6-month residency rule). And if Frankfurt is as picky as London with DCF, then 6 months in reality may still not convince them that your principal residence is Germany, especially since you're a student in the US (i.e. in their eyes, temporarily resident in Germany).

Really, even if all the above was overcome and you were allowed DCF, by the time you were able to file in Frankfurt, the timeline would probably come to the same as it is now.

But as I said above, I don't know if all this is even possible and I wouldn't try to change things with the risk of adding extra layers of bureaucracy and thus complicating my case.

[hunymstard 0]

I really appreciate all your replies. Even if there isn't anything I end up being able to do, it sure feels good to talk about it...

- you'd need a resident visa such as a work permit), you'd have to wait until at least mid-January to file (the 6-month residency rule).

The residence permit issued to me by Germany on account of my marriage includes the ability to work without anything further required. In many ways it's akin to the US Green Card, except that it's handed over on the spot after very minimal paperwork and a simple interview. It is the evidence listed on the German US Embassy website to prove eligibility.

I keep seeing the "six month rule" posted on VJ, but cannot find any mention of a time requirement here ... confirmation that I really do need to reside in Germany for six months before being eligible for DCF would be good information!

[Deputy Purple 1,294]

I keep seeing the "six month rule" posted on VJ, but cannot find any mention of a time requirement here ... confirmation that I really do need to reside in Germany for six months before being eligible for DCF would be good information!

The minimum residency requirement seems to be something that is set by each Consulate. It also appears that some Consulates might not even require legal residence for limited circumstances.

Edited November 29, 2010 by Bob 4 Anna

[hunymstard 0]

It's possible that I don't completely understand the process? As I understand it:

1)I-130 gets accepted, approved, sent to NVC

2) NVC requests more $ and more evidence, gives some sort of approval and sends it to Germany

3) German Embassy hosts the interview

Does this sound right?

Then, according to http://germany.usembassy.gov/visa/iv/faq/#IV

"There is a delay of at least 12 weeks between the date the file is dispatched by NVC and the date the Immigrant Visa Section receives the file and completes action on the case. The Immigrant Visa Section will be in contact with the applicant once they are able to schedule the visa interview."

I understand this to mean that the time between steps two and three amounts to three months, not counting whatever time we have left at Step One or how long Step Two would take. (Any ideas how long step 2 takes?) Do you read it the same way? Three to four months is about what DCF through Frankfurt seems to be taking...

But as I said above, I don't know if all this is even possible and I wouldn't try to change things with the risk of adding extra layers of bureaucracy and thus complicating my case.

The risk of layers of bureaucracy... exactly. I guess the question is, will this make things harder or might it be super simple? Re-paying the fees shouldn't amount to more than $900, if I'm finding everything I need to be finding, which would definitely be less than us living one month in two different places (considering two rents, his habit of eating out if I'm not cooking, and the childcare I'd require...) so the money is not the issue... the issue is Papa having to watch his baby learn to crawl--and perhaps walk, and start talking--via Skype. (Oh, thank GOODNESS for Skype) I feel super blessed to have the resources we do have--Skype, separation for months and not years, etc--but I'd still like to do what I can to keep us together. I'm sure you understand!

[Anh map 2,098]

Take a look here on the Frankfurt Consulate (they will process your petition regardless of where in Germany you live) site about filing, etc. >>> http://germany.usembassy.gov/visa/iv/step2/

[hunymstard 0]

I've found the source of the "6 month rule": the Adam Walsh Act. However, the last update I can find is from 2007--when the act changed from not allowing petitions to be submitted abroad, to allowing it but requiring consulates to require a 6 month waiting period. Laws change quickly, however, and there is no mention of a time requirement on the German-US Embassy websites.... so yes.

I've also found a couple of personal accounts on other immigration forums of couples doing DCF while they simultaneously had an I-130 pending in the USA. In at least one of these accounts the Consulate told them it was fine and to come in and file.

I've re-contacted the Consulate in Frankfurt with the direct questions:

-must one be in Germany 6 months before filing? and,

-may one file DCF while another I-130 is pending?

I'll let you know what I hear back!

(If my track record has anything to say for it, the answers will be, "yes" and "no" respectively, and then I will meet a couple one month from now who did just as I wanted to do, but didn't ask ahead of time, and all worked out perfectly for them. Ah well...)

[hunymstard 0]

UPDATE--it seems to have worked

I never did hear back from Frankfurt, but we made a trip out there anyway. I'd found enough accounts (uhm, 2) of other people filing DCF after filing in the US that I felt safe trying it.

In short: petition accepted, DS-230 submitted and interview checklist given! Verbose details below.

Highlight: SIX MONTH RULE is from the date on your residency permit. Don't waste time getting this if you want to avoid a hassle!

We showed up a half hour late for our 8am appointment due to the snowy weather. Our four month old baby qualified us for a front-of-the-line pass, and security was quick and easy. Once our number was called, we proceeded upstairs to a gentleman who did not seem super pleased to see us. He shuffled our papers as far as my residency permit and said, "This is dated XXXX do you have another one of these?" "Another residency permit?" "yeah, this one is dated XXXX" "right, that is the date we got that" "so you don't have another from before that?" "no, that is my only one" "you have to have been here six months to file here". Heart. Stopped. Beating. I was afraid of that. The conversation continued, me sighing and saying that I looked for that information specifically, that the website only says you need a res permit, that my email was replied to with only a link back to the website, that we've been in Germany longer than the date on the permit.... "so then how'd you get to come here?" "When we decided we wanted to move here we called up Germany and they said to just come on over! As an American spouse you enter on a tourist visa and you have 90 days to have made your appointment for the quick little visit it takes to get your residency permit; allows you to work and everything (uhm... no hard feelings here... USA COULD TAKE SOME POINTERS FROM THESE FOLKS!) we would have done it way sooner if we new the date on the permit mattered"

I told him that we'd decided I should finish med school and so that I needed to return in March, that it would be ideal if we could stay together as a family (gesturing to our sweet baby boy in his papa's arms) and was there any other way?

He said there wasn't.

And then he proceeded to accept the petition, to have us pay the fee, and to send us downstairs to submit the DS-230 (I had brought it along prepared). He told me that I "may or may not be contacted about the residency permit thing".

The guy at the DS-230 window was super friendly as he told us what would be required for the interview, marked March 2011 as our intended date of departure and shared that he couldn't imagine it being a problem to have everything processed by then.

Hooray!!

The letter on the cover of the interview checklist begins, "This office has received an approved petition..." Thrilling, no? But I don't take it too seriously. Judging from the fact that the couples in line ahead of us also went from I-130 upstairs to DS-230 downstairs, I'm guessing they've incorporated that expedited step whether or not the petition is approved. I realize that there's still a chance we get sent to the US for processing, which could take forever, or that they decide to hang on to the petition until I have been here six months or something else strange like that... but here's hoping.

Now waiting for the packet of important documents, originals, tax forms, etc. to arrive from our lawyer (mailed two weeks ago; was supposed to take 3-5 days, egad) so that we can fax over the signed checklist and await word of approval and an interview.