Unsure of our options, need advice/help?

[anoldjourney 1]

I've posted this question in quite a few forums and never had any real solid or helpful answers, just lots of speculation... Hopefully someone here can help me!

Anyways, I'm turning 21 in late September. A month or two ago we were going to apply for a Green Card for me based on my step-dad being a US Citizen. (Yes, he married my mum when I was about 10, so by all legal counts for visa/immigration stuff I AM the child of a USC) The situation then though was that my mum & step-dad had no intentions or plans of moving to the US, and after speaking to the US Embassy, they said I wouldn't have a GC approved due to them not moving, only me. In the end, we gave up on that option.. Until now, it's an idea again.

I've wanted to move to the US for a long time, but never had a way to do it without them moving with me. They'd never wanted to until just the other day they've been discussing it. Mum now would like to move there once she completes her PhD here, so probably in about 2 years.

Unfortunately, in 2 years, I will be 22 going on 23, and will be stuck in the longer waiting category, (6-7 years isn't it?). So, I was wondering:

Could we apply now, before I turn 21, and have the age "freeze" at me being 20? So that I don't fall in to the longer wait category? And apply for this even though they don't plan on moving for 2 years? I've been told the process can be dragged out, i.e. it takes several months anyways for the petition to be approved, then the consulate interview can be scheduled with some more time spaced out, then you're given the 6 months to enter and begin the GC, in which we could still then come back and "wrap up" our lives here?

Extra details:

- My step-dad has lived here for about 11 or so years now.

- Step-dad has his adult kids there, who are each married with their own families also.

- My step-dad and mum own a house there, however they want to sell that before moving over there, as they don't want to live in Arkansas.

- My step-dad owns his own web-hosting company online, US based. So he earns in USD$ (which isn't doing them much good anymore with the Aussie dollar being so high now)

Sorry for the long post, just trying to give people the idea of what's happening for the best advice.

I've had mixed advice, like some saying he can't petition for me until he's back living in the US. Some say he can petition for me, but he's not 'domiciled' etc. I'm fairly sure I've read that he can apply for me while still living here so that it's a process in which we all move to the US together. As I'm still in the child category, I don't see how an 11 year old child could be left behind in a country while their parents move to the new country and THEN start the application process...

So, any help or advice would be very helpful!

Thanks!

[NigeriaorBust 4,087]

I assume that your stepfather is filing his US taxes like he should. You visa is for family reunification so unless he moves you will not get a visa , that is correct. If you are fairly certain of his moving in about 2 years your plan might work , but if he drags his heels you will lose out. You can only delay so much before they will cancel the petition. The catch comes if they ask for proof of his intent to return to the US during the initial stages. That would be an RFE and you only get 30 days to show proof.

[anoldjourney 1]

I assume that your stepfather is filing his US taxes like he should. You visa is for family reunification so unless he moves you will not get a visa , that is correct. If you are fairly certain of his moving in about 2 years your plan might work , but if he drags his heels you will lose out. You can only delay so much before they will cancel the petition. The catch comes if they ask for proof of his intent to return to the US during the initial stages. That would be an RFE and you only get 30 days to show proof.

He would be moving with me, and my mum. They just won't be moving until Mum has completed her PhD she's doing here. What is required to prove his intent to return to the US? He's already got employment, and a house? They'll be listing their house here for sale next year, as to then only have to be renting for under a year. They're keeping our other property here though.

[Anh map 2,098]

The embassy where you would interview has already given you their opinion. And the interviewing CO has to be convinced that your dad will be relocating to the US at that time.

From what you are saying that will not occur soon enough for you to be under 21.

The extended family members in the US have no bearing.

[anoldjourney 1]

The embassy where you would interview has already given you their opinion. And the interviewing CO has to be convinced that your dad will be relocating to the US at that time.

From what you are saying that will not occur soon enough for you to be under 21.

The extended family members in the US have no bearing.

The embassy's opinion was for a different issue then, that my parents would NOT be moving with me, just me going alone. But they've since decided on moving...?

[aaron2020 11,651]

Have your stepfather file before your 21st birthday to freeze your age.

If you are lucky enough to stretch it out, great.

If you can't stretch it out, then you simply wait 6-7 years.

[anoldjourney 1]

Have your stepfather file before your 21st birthday to freeze your age.

If you are lucky enough to stretch it out, great.

If you can't stretch it out, then you simply wait 6-7 years.

So even if it couldn't stretch out, would it just change category itself? Or would it have to be reapplied & repaid for, restart the waiting time etc?

[aaron2020 11,651]

So even if it couldn't stretch out, would it just change category itself? Or would it have to be reapplied & repaid for, restart the waiting time etc?

I don't know because people usually try to shorten their wait for a visa. Rarely does anyone try to prolong the process. You are in uncharted territory around here.

[anoldjourney 1]

I don't know because people usually try to shorten their wait for a visa. Rarely does anyone try to prolong the process. You are in uncharted territory around here.

Haha, well I'd love to shorten it, and I'd go as soon as possible. But I wouldn't be able to go early, without my parents? Or if I went, activated and stayed, and my step dad came back to stay with my mum & brother while she finishes her PhD? I just didn't think they'd allow that. Which is why I figured stretch it...

[Mellow 8]

So even if it couldn't stretch out, would it just change category itself? Or would it have to be reapplied & repaid for, restart the waiting time etc?

Yes the category will automatically change if your case is not processed on time for the current category (you will be moved from immediate relative to F1 preference category). The important thing is to file the petition NOW.

[anoldjourney 1]

Yes the category will automatically change if your case is not processed on time for the current category (you will be moved from immediate relative to F1 preference category). The important thing is to file the petition NOW.

But if the case is processed?

I'm worried that there's a chance it will be denied as the parents are still 2 years off moving, and that then I wouldn't be able to apply for another kind of Green Card..

[Mellow 8]

But if the case is processed?

I'm worried that there's a chance it will be denied as the parents are still 2 years off moving, and that then I wouldn't be able to apply for another kind of Green Card..

Then you have no choice but to wait till you turn 21, then your petitioner should immediately file the petition. This will result in a 7-year wait, more or less.

[JimVaPhuong 4,863]

When the petition is approved it will be sent to NVC for processing. Once NVC sends out the fee bill for the affidavit of support then the petitioner has one year to submit the affidavit of support. The sponsor must be domiciled in the United States in order for the affidavit of support to be acceptable. An alternative is if the sponsor can prove, with evidence, that they've taken steps to reestablish domicile in the United States, and will reestablish domicile at the same time or before the immigrant arrives in the US. Taking steps to reestablish domicile could be as simple as making one trip back to the US and tossing out the tenants who are currently living in their Arkansas home. It could also be done by returning to the US and renting an apartment and opening a bank account. He needs to prove that he intends to return to live in the US, and that he's taken concrete steps to do so.

FWIW, your dad could come back to the US and rent an apartment and then file the petition using that address. When it comes time to file his 2012 tax return he should file it from that address. When the AOS fee bill arrives he can send the affidavit of support and complete NVC processing from that address. He can still return to Australia for the periods in between. Being "domiciled" in the US doesn't mean you have to keep your butt anchored in a home in the US 24/7/365. It just means your primary residence needs to be in the United States.

[anoldjourney 1]

When the petition is approved it will be sent to NVC for processing. Once NVC sends out the fee bill for the affidavit of support then the petitioner has one year to submit the affidavit of support. The sponsor must be domiciled in the United States in order for the affidavit of support to be acceptable. An alternative is if the sponsor can prove, with evidence, that they've taken steps to reestablish domicile in the United States, and will reestablish domicile at the same time or before the immigrant arrives in the US. Taking steps to reestablish domicile could be as simple as making one trip back to the US and tossing out the tenants who are currently living in their Arkansas home. It could also be done by returning to the US and renting an apartment and opening a bank account. He needs to prove that he intends to return to live in the US, and that he's taken concrete steps to do so.

FWIW, your dad could come back to the US and rent an apartment and then file the petition using that address. When it comes time to file his 2012 tax return he should file it from that address. When the AOS fee bill arrives he can send the affidavit of support and complete NVC processing from that address. He can still return to Australia for the periods in between. Being "domiciled" in the US doesn't mean you have to keep your butt anchored in a home in the US 24/7/365. It just means your primary residence needs to be in the United States.

No one lives in our Arkansas home, and he's already still got his bank accounts. But they want to sell the Arkansas home next year (or whenever it's finally finished properly), and put that into their bank account there as funds to buy a house in whichever town/state Mum can get a job in. That's all the stuff that really confuses me cause he's technically done all the steps to be "domiciled". He's never had a job in Australia, always been working on his US based online business.

So there's one year for the affadavit of support to be done, so really this could be stretched out and work fine? Is that what you're getting that? Thanks.

[JimVaPhuong 4,863]

No one lives in our Arkansas home, and he's already still got his bank accounts. But they want to sell the Arkansas home next year (or whenever it's finally finished properly), and put that into their bank account there as funds to buy a house in whichever town/state Mum can get a job in. That's all the stuff that really confuses me cause he's technically done all the steps to be "domiciled". He's never had a job in Australia, always been working on his US based online business.

So there's one year for the affadavit of support to be done, so really this could be stretched out and work fine? Is that what you're getting that? Thanks.

Yes, the sponsor has one year to respond to the affidavit of support fee bill and submit the affidavit of support. If they don't respond within a year then the petition is considered to have been abandoned, and it's sent to cold storage. That also closes the window on the CSPA age lock.

The ties your step-father has maintained in the United States can be used as evidence that his absence from the United States was intended to be temporary, and that he has, in fact, maintained his primary residence in the United States during his absence. Despite the fact that your step-father has maintained ties to the US, he has actually maintained his primary residence in Australia for the past 11 years. That's not a temporary absence.

He needs to actually move back to the US or prove with sufficient evidence that he has taken concrete steps to move back to the US. If the latter then he needs to actually move back at or before the time you enter the US with an immigrant visa.