China: K-1 or CR-1 DCF – Circumstances suit neither

[Molldrew 0]

Hi everyone,

We are a couple who has spent a bit of time trying to work out which visa option to take.

We are

• an engaged couple (US citizen and Australian citizen) living in China, but we are happy to get married to facilitate the best visa process.

• The US citizen has lived in China for about a year and a half on business F visas.

• In terms of income and assets, we have no assets in the US. The US citizen has no assets and no co-sponsor available. The Australian citizen has about US$110,000 in liquid assets (cash and shares) part in China, part in Australia, available to bring into the US.

The visa options we have been considering are the K-1 visa or the direct consular filing for the CR-1 visa. The problem is that we don’t seem suited for either visa.

Our issues with the visas are:

K-1 visa

• We don’t have a US source of income. We would need to pass the income and assets test purely based on assets. To make this easier we could bring these assets into the country, but would need to do this after getting married to avoid gift tax.

• The Australian citizen needs to spend three months unemployed in the US.

DCF CR-1 visa

• The US citizen does not have the right type of Chinese visa to apply for a DCF CR-1 visa. To do this, the US citizen would have to change jobs and visas to make this work. Finding the right type of job to get the visa could be quite difficult.

Does anyone have any advice on how to deal with this issue? Any thoughts would be greatly appreciated.

Molldrew

[Harpa Timsah 13,258]

You can do a normal CR-1 visa, not the DCF part. You would submit the petition from China to USCIS in the US and proceed from there. It's a bit slower - 10 months-ish, but you could stay in China and live as you are now. When you got to the US, as you know, you would trigger your Permanent Resident status and be able to work right away. Your assets would cover the Affidavit of Support. Hope that helps.

[Anh map 2,098]

If you can't qualify for DCF and you need the immigrant to be able to work right away, get married now. File the CR'1 spouse visa petition at the US address. USC goes home and gets a job earning at least $18,387 per year. ...time passes, processing takes place, interview in China (or OZ if the spouse returns home), visa issued, spouse enters US and is able to work.

Any US citizen or Green Card holder can be a joint sponsor.

Assets used to offset income shortfall are factored at a 3:1 ratio ($3 assets = $1 income). 5:1 if the assets are located outside the US. So that means at least $55,161in US based assets.

[Anh map 2,098]

Take a look at this I-864 FAQ from the State Dept. website regarding the affidavit of support >>> http://travel.state.gov/visa/immigrants/info/info_3183.html

You can do a normal CR-1 visa, not the DCF part. You would submit the petition from China to USCIS in the US and proceed from there. It's a bit slower - 10 months-ish, but you could stay in China and live as you are now. When you got to the US, as you know, you would trigger your Permanent Resident status and be able to work right away. Your assets would cover the Affidavit of Support. Hope that helps.

USC would have to establish a US domicile though.

[Penguin_ie 5,993]

***** Moving from DCF to General immigration, as OP has not decided on visa type yet. *****

You have another option, you can get married and file for the CR-1 via the USA. All you need is a US mailing address for paperwork- a friend or relative maybe? This would be the slowest of all your options, but it is worthy of consideration.

I would not advocate it because I am a bit of a pessimist, but one option may be to transfer the assets into the USC's name- dicuss with an accountant the best way to do this if you are worried about gift tax.

You should also contact the US embassy for advice, to make absolutely sure your visa type does not qualify for DCF (some embassies are more lenient than others).