Question on IR1 and Change of Status

[bob-c 0]

Hello all,

A little background. I'm a US-born US citizen (with American parents) and my wife and I were married in the US over three-and-a-half years ago. She's an Italian citizen though she lived in the US with her parents (as a minor) from about 1986-1990. For what it's worth, our son is a US citizen, as is her brother.

We lived together in the UK after getting married and are currently living in Shanghai, China where I have been re-located for work. I recently acquired a new job in Texas and of course would like to move there with my family and not alone! The job starts at the beginning of July and can't be postponed any further.

We were told by a friend that we needed to petition via IR-1 in Beijing and then my wife would have her visa interview in Guangzhou. We weren't thrilled about it but resigned ourselves to this. We had an appointment with the consulate in Beijing to submit our petition and we traveled all the way there for it.

At the Beijing US consulate, we were told that it was impossible to apply for the IR-1 in China because I need to move to the US soon and we won't have a permanent residence in China at that point, so there will nowhere to send the packet.

The agent said that what we should do is go to the US, with my wife on a tourist visa, acquire a permanent address in the US (which will take us a few weeks), and then send the IR-1 application to the Chicago Lockbox, as well as applying for a Change of Status. She said that policies had recently changed (since February 2012) which allowed this.

We traveled all the way to Beijing with our son because of a lack of accurate information. We would of course like to avoid any similar mistakes. Could someone with genuine and recent knowledge on this subject please be so kind as to help out with the following questions:

- Is is advisable for my wife to come with me to the US on a tourist visa at all? (if not we simply won't be able to emigrate)

- Is it possible to apply for IR-1 and Change of Status together?

- Is this petition/Change of Status likely to be successful?

Really appreciate any knowledgeable advice! It's been difficult to impossible to get good information here in China.

Thanks again!

Bob

[Benpm 0]

Hi Rob,

My wife and I share a similar situation. She is a USC and I am a French citizen. She was living with me in Paris (had been there for over 8 months after our wedding) and returned to the US for an amazing job opportunity. When we consulted our lawyer a few months ago, she said I could just fly to the US and immediately submit an application for change of status. She said the operation would take 4-5 months. Of course, during that time, it is not possible to work. I also imagine health coverage to be limited.

Regarding your wife, she should not need a tourist visa as she can stay for 90 days in the US without specific paperwork (I believe it is the same for most European Union citizens). But then, as long as the process is pending, she can remain in the US. You can hopefully get it done sooner than later.

We chose not to go that way as I did not want to be spending all these months waiting without an activity (I have a good job in France). We also thought the file would go faster (but it will probably drag until the end of year, still manageable when you look at the greater picture). However, the lawyer file our case using my wife's address in the US... this means we will not get NOA2 until a few months... what you should do, is check a thread called "USC petitioner living abroad". A lot of couples residing abroad (no limitation of countries) file using their abroad address in the I-130 (very important not just to mention it in the G-325). As a result, they get their NOA within a couple of weeks!! Of course this is not the end of the road but it sill looks better than 5 or 6 months. I am really mad at our lawyer for not knowing this and having us wasting a few months during which we have to be away. At this point, there is no way to re-submit the file as my wife is back in the US nor is it possible to amend it (sadly).

My advice is for you to check this forum thoroughly as it is full of useful information and should have we done it, our NOA2 would be there...

All the best to you and your family,

Ben

[Ryan H 3,819]

The agent said that what we should do is go to the US, with my wife on a tourist visa, acquire a permanent address in the US (which will take us a few weeks), and then send the IR-1 application to the Chicago Lockbox, as well as applying for a Change of Status. She said that policies had recently changed (since February 2012) which allowed this.

Agent gave you bad information, there is no such policy that would permit misuse of a tourist visa or the VWP. If your wife were to be asked by CBP how long she plans to stay, she would have to tell the truth and the truth would result in her being denied entry by CBP and told to obtain the proper visa.

Really appreciate any knowledgeable advice! It's been difficult to impossible to get good information here in China.

I'm assuming you have been in Shanghai for 6 or more months with a Chinese residence permit, they should have allowed you to file at the USCIS field office in Beijing, but if not, well, they are the ones making the call.

Here is what you need to do. Send the I-130 and accompanying documentation to the lockbox in Chicago ASAP. Since you are currently residing in China, use your Chinese address on all the forms. This should result in quick adjudication of your file by USCIS. Once your file is at the NVC, you can submit the required forms and documents by sending them via email as a PDF attachment.

The process will likely not be completed by July in the best case scenario, however, if all does go well, separation should be minimal. However, I must stress that there are no guarantees.

Edited June 4, 2012 by Ryan H

[JNEKG 4]

I agree with Ryan H.

We applied from Australia and were approved in 8 days. In fact the whole process from the time we sent in the I130 to case closed is less than 3 months for us. If we were prepared we could have made it through NVC in a few weeks.

All the best and I hope the separation to your family is minimal.

[Penguin_ie 5,996]

Agree with Ryan also.

The Adjusting Status plan is visa fraud.

[pushbrk 13,043]

Agree with Ryan also.

The Adjusting Status plan is visa fraud.

Unfortunately, Ryan is wrong about filing DCF in Beijing. If the couple could do that, they would have already. The USCIS official in Beijing was correct in declining to accept the petition BECAUSE the beneficiary is NOT GOING TO REMAIN IN CHINA. She doesn't have to go to the USA with her husband but since she won't have an address in China, she can't complete the IR1 visa process there.

If she is Italian, she can visit just about anyplace including the USA without a visa. Once she's in the USA, they certainly CAN file to adjust her status to permanent resident. This, in and of itself, is not visa fraud. However, the difficulty is actually entering the USA without lying to a CBP agent about the length of the intended stay.

This couple needs professional assistance.

[Penguin_ie 5,996]

he USCIS official in Beijing was correct in declining to accept the petition BECAUSE the beneficiary is NOT GOING TO REMAIN IN CHINA.

Ok I didn't read the OP like that, just that the petitioner needs to move to the USA by July. However, it doesn't really matter as Ryan's advice regarding filing via the Lockbox is correct, as long as they have a foreign address for the beneficiary to receive papers in.

Edited June 4, 2012 by Penguin_ie

[pushbrk 13,043]

Ok I didn't read the OP like that, just that the petitioner needs to move to the USA by July. However, it doesn't really matter as Ryan's advice regarding filing via the Lockbox is correct, as long as they have a foreign address for the beneficiary to receive papers in.

Key sentence in the OP is " we won't have a permanent residence in China at that point, so there will nowhere to send the packet. " The beneficiary is Italian, not Chinese.

[bob-c 0]

Many thanks all for your replies.

Pushbrk is correct, the devil is in the details here: neither of us is Chinese and as soon as I move to the US neither of us will be allowed to live in China, since we are only in China by virtue of my Chinese job and work permit. So filing an I-130 in China is apparently a non-starter. That said, I know someone who did exactly this, but she flew back to China from the US for her interview. (The agent in Beijing believed this was not the correct way to do it.)

After being somewhat alarmed by the responses here, we called the USCIS/HLS 800 number yesterday and the helpful agent there confirmed exactly what we were told in Beijing: we should file in the US for an I-130 and a Change of Status. The tricky bit is coming into the US without lying to the officials, which we never intended (we've been together for 12 years and have a child so it would be counterproductive). She suggested that we get the advice of the Beijing agent in writing, and also contact the CBP (border patrol) in advance and let them know of our plan and perhaps get their approval in writing. This way we will fully disclose what we are doing, but she said that given our circumstances/situation this was the most reasonable path forward.

We'll be contacting the CBP as soon as we hear back from the consulate in Beijing, it will be interesting to see if they likewise understand the full context of our situation.

By the way, regarding my wife entering as a tourist without committing fraud--is it possible to come in for 90 days at a time and then leave and re-enter the country on that interval? I get the impression that is NOT done in this case but it IS allowed in many other countries, including China.

Edited June 5, 2012 by bob-c

[pushbrk 13,043]

Many thanks all for your replies.

Pushbrk is correct, the devil is in the details here: neither of us is Chinese and as soon as I move to the US neither of us will be allowed to live in China, since we are only in China by virtue of my Chinese job and work permit. So filing an I-130 in China is apparently a non-starter. That said, I know someone who did exactly this, but she flew back to China from the US for her interview. (The agent in Beijing believed this was not the correct way to do it.)

After being somewhat alarmed by the responses here, we called the USCIS/HLS 800 number yesterday and the helpful agent there confirmed exactly what we were told in Beijing: we should file in the US for an I-130 and a Change of Status. The tricky bit is coming into the US without lying to the officials, which we never intended (we've been together for 12 years and have a child so it would be counterproductive). She suggested that we get the advice of the Beijing agent in writing, and also contact the CBP (border patrol) in advance and let them know of our plan and perhaps get their approval in writing. This way we will fully disclose what we are doing, but she said that given our circumstances/situation this was the most reasonable path forward.

We'll be contacting the CBP as soon as we hear back from the consulate in Beijing, it will be interesting to see if they likewise understand the full context of our situation.

By the way, regarding my wife entering as a tourist without committing fraud--is it possible to come in for 90 days at a time and then leave and re-enter the country on that interval? I get the impression that is NOT done in this case but it IS allowed in many other countries, including China.

Unfortunately, there are MORE details that haven't sunk in yet. You'll be dealing with three separate government agencies to execute the plan you described. Not one of those agencies has any authority over either of the other two. No matter what USCIS or a Consular official says, CBP is NOT going to pre-approve entry to the USA on the Visa Waiver Program for a declared intending immigrant. Trying to get that approval is not going to do anything but put a target on your foreheads.

[bob-c 0]

Unfortunately, there are MORE details that haven't sunk in yet. You'll be dealing with three separate government agencies to execute the plan you described. Not one of those agencies has any authority over either of the other two. No matter what USCIS or a Consular official says, CBP is NOT going to pre-approve entry to the USA on the Visa Waiver Program for a declared intending immigrant. Trying to get that approval is not going to do anything but put a target on your foreheads.

That did occur to me. I was thinking about asking about it anonymously first.

So you recommend getting professional help I gather? From what I've read elsewhere on these boards it sounds like they can do as much harm as good. What would you suggest? Just give up? We haven't done, or plan to do, anything wrong or illegal. We've been legitimately together for many years, I just acquired a job in the US, I need to move with my family, and we're not citizens of China. Surely it should just be a matter of explaining the situation to someone with some authority, as we've done so far with apparent understanding. I understand the CBP is not subject to these other agencies but then they should be able to tell me what should be done.

Thanks again!

[bob-c 0]

For what it's worth, I found this in the I-485 instructions:

Who is NOT eligible to adjust status:

K. You were admitted to the United States as a visitor under the Visa Waiver program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years of age)

Still I get the point about the CBP.

[pushbrk 13,043]

For what it's worth, I found this in the I-485 instructions:

Who is NOT eligible to adjust status:

K. You were admitted to the United States as a visitor under the Visa Waiver program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years of age)

Still I get the point about the CBP.

Right, CBP is the issue. Once you're in without lying, no problem.

[bob-c 0]

Right, CBP is the issue. Once you're in without lying, no problem.

Stupid question: say we book a ticket for my wife to go back to her home country (Italy) within 90 days of arriving in the US. So she is coming into the US with the genuine intention of leaving within 90 days. And she leaves for Italy within 90 days, but in the meantime we have applied (as USCIS recommended) for an I-130 and/or I-485.

No need to lie to anyone about anything. I'm sure I'm missing something here though.

[Penguin_ie 5,996]

If she leaves within 90 days, no problem, but then you are not Adjusting Status, and so no I-485 needed. You would simply file the I-130 and accompanying documents and petition her for a CR-1 visa.