My wife & children

[Dual National 0]

My wife and I were married outside the United States in 1994. I am a native-born US citizen. My wife is an Indian national.

Since our marriage we have never lived in the US. Until now, we've never spent more than a couple of weeks a year in the country. My wife has always obtained tourist visas for the US without problem.

We have two children, ages six and eight, both of whom are US citizens with US passports and social security numbers.

We recently bought a house in the US and would like to remain there for the next few years. My wife and kids entered the US in December, with my wife using her multiple-entry tourist visa on her Indian passport. I am still overseas and won't be back in the US for another few weeks. I'm unsure how long an entry her tourist visa is valid for. We'd like to enrol the children in school now.

Is there a step-by-step guide somewhere to help us decide how to proceed? My wife has not decided whether she wants to be a US citizen.

Any suggestions would be appreciated.

[Kazulie 132]

She would stay in the US and adjust status. This would take quite a few months and she would have to stay in the States while her case is being processed. You will need to file an I-130 and a I-485. Both of these can be found at the top of this page under "guides" or on uscis.gov with instructions.

This will give your wife a green card. she does not have to become a citizen if she doesn't want to.

You have lots of studying to do and good luck!!!

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[Darnell 8,478]

I say don't formalize it , at all.

Just move with her out of the country again, after you're done on those few years you'd like to live in the USA.

[VanessaTony 3,567]

She should return to India and you should follow the proper immigration process of filing the I-130 (DCF if it's available). Entering the US with intent to remain is immigration fraud. As you are married the assumption of intent would be high for her. Though intent is rarely asked, with 2 USC kids it's simply not worth the risk of a permanent ban for fraud.

[Dual National 0]

She should return to India and you should follow the proper immigration process of filing the I-130 (DCF if it's available). Entering the US with intent to remain is immigration fraud. As you are married the assumption of intent would be high for her. Though intent is rarely asked, with 2 USC kids it's simply not worth the risk of a permanent ban for fraud.

Hi:

That's alarming. We're quite intent on following the law, and we were quite clear about our intentions with the US consulate in our country of residence (which is not India).

I wrote the US consulate explaining that we had bought a US property and would like to transform it into a business, and asked them for advice on my wife's status. The pre-written reply we received was unenlightening, but my letter was clearly visible in her file when she appeared to renew her visa.

We're quite mobile and it is easy enough for her to travel outside the US at any time. But if we follow the procedure you suggest, would that mean she would not be able to enter the United States during processing?

Surely the intent of immigration law wouldn't be to separate us, or delay our children's enrolment in school. We've been married for 18 years.

Edited January 1, 2013 by Dual National

[Darnell 8,478]

actually, your wife is allowed to file for adjustment of status, regardless of the intent and regardless of anything else Vanessa might wish to write about.

Seriously, she could file asap.

[VanessaTony 3,567]

Hi:

That's alarming. We're quite intent on following the law, and we were quite clear about our intentions with the US consulate in our country of residence (which is not India).

I wrote the US consulate explaining that we had bought a US property and would like to transform it into a business, and asked them for advice on my wife's status. The pre-written reply we received was unenlightening, but my letter was clearly visible in her file when she appeared to renew her visa.

We're quite mobile and it is easy enough for her to travel outside the US at any time. But if we follow the procedure you suggest, would that mean she would not be able to enter the United States during processing?

Surely the intent of immigration law wouldn't be to separate us, or delay our children's enrolment in school. We've been married for 18 years.

As Darnell stated she would be allowed to file. It's not illegal to file, but it IS illegal to enter with intent to remain and that is clearly what she intended to do (AND you have a letter in your file stating as much!) I personally wouldn't risk it, but the choice is yours.

Yes she could remain in the US "visiting" while it's processing and just return to India for the final parts of the process.

I certainly hope a few more experienced members come and comment. I might PM a couple. The letter you wrote is the most troubling part because it clearly explains your intent, which, as I stated, is illegal.

actually, your wife is allowed to file for adjustment of status, regardless of the intent and regardless of anything else Vanessa might wish to write about.

Seriously, she could file asap.

Really? With the letter in his file showing they have intent? That would incredibly stupid in my opinion.

**Edit - I should mention, there is debate on the forum about intent. It is my understanding that the KNOWLEDGE of intent (i.e. proof) is enough to deny because it's fraud. However the assumption of intent (no knowledge but they just think it) isn't.

Before you make your choices, speak with an immigration attorney. Tell them about your letter to USCIS. Tell them you saw it in your file so you know they have it. Follow their advice.

Edited January 1, 2013 by Vanessa&Tony

[Dual National 0]

I really don't get it. As we clearly expressed our intent before my wife arrived -- specifically that we would like to stay in the US for a few years while we build a business -- how can there be any issue? Obviously there was no intent to deceive any one or break the law. She isn't working now, and isn't violating the status of her visa. I would not think enrolling the children in school violates her visa, either. That's the only task on her agenda, and I'll be back in the US soon.

If she needs to leave the country, she can at any time after I arrive. We still own property and pay taxes overseas.

But surely there must be some means of formalising her status. The idea that we have in any way violated US law seems absurd.

As Darnell stated she would be allowed to file. It's not illegal to file, but it IS illegal to enter with intent to remain and that is clearly what she intended to do (AND you have a letter in your file stating as much!) I personally wouldn't risk it, but the choice is yours.

Yes she could remain in the US "visiting" while it's processing and just return to India for the final parts of the process.

I certainly hope a few more experienced members come and comment. I might PM a couple. The letter you wrote is the most troubling part because it clearly explains your intent, which, as I stated, is illegal.

Really? With the letter in his file showing they have intent? That would incredibly stupid in my opinion.

**Edit - I should mention, there is debate on the forum about intent. It is my understanding that the KNOWLEDGE of intent (i.e. proof) is enough to deny because it's fraud. However the assumption of intent (no knowledge but they just think it) isn't.

Before you make your choices, speak with an immigration attorney. Tell them about your letter to USCIS. Tell them you saw it in your file so you know they have it. Follow their advice.

[VanessaTony 3,567]

I really don't get it. As we clearly expressed our intent before my wife arrived -- specifically that we would like to stay in the US for a few years while we build a business -- how can there be any issue? Obviously there was no intent to deceive any one or break the law. She isn't working now, and isn't violating the status of her visa. I would not think enrolling the children in school violates her visa, either. That's the only task on her agenda, and I'll be back in the US soon.

If she needs to leave the country, she can at any time after I arrive. We still own property and pay taxes overseas.

But surely there must be some means of formalising her status. The idea that we have in any way violated US law seems absurd.

I know it SEEMS absurd. Read this: http://www.hooyou.com/familybased/exceptions.html

The issue that arises for non-immigrant visa holders who may want to apply for a Change of Status or Adjustment of Status is that in doing so, it brings into question whether or not the applicant had a “preconceived intent” at the time that they were granted their non-immigrant visa; this is the basis for the 30/60 day rule. According to the Department of State’s Foreign Affairs Manual (9 FAM 40.63, N 4.7), the 30/60-day rule is meant to be used for guidance only, since it is not governed by the statutes or regulations. Thus, it should not be used in a denial. However, as a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her non-immigrant visa. If an alien files an immigration petition or applies for an adjustment of status within 30 days’ entry into the United States, the USCIS would likely find that the alien entered with “fraudulent intent” to remain in the U.S. and the non-immigrant visa would be classified as fraudulently obtained under the laws. If the alien applies for a change of status or adjustment of status after 30 days but before 60 days after entry, the USCIS could view the change or adjustment with an assumption that he/she had a “preconceived intent” to enter as a non-immigrant. However, the assumption may be rebutted by the applicant with evidence showing a change of circumstances. While it is not a guarantee, if the alien applies for the change of status or adjustment status after 60days of entry into the U.S., USCIS may not look upon the application negatively. The best practice regarding non-immigrant visas, however, is to abide by the time restrictions that are allotted on the NIV assigned to the alien. [iNA 214]

Read the whole passage but I bolded important parts. Basically, you have STATED your intent. You can see here that you can be denied for preconceived intent, or "fraudulent intent".

Like I said, personally I wouldn't risk it. Talk to an attorney.

I'm not being rude when I say - being your spouse gives her no rights to live in the US. It gives YOU the right to petition for her, but it does not guarantee her approval. With 2 kids to worry about, I would not risk it. Others would. Whatever you decide, you need to live with the consequences, not us.

Edited January 1, 2013 by Vanessa&Tony

[AnotherLostSoul 167]

What Darnell meant about "don't formalize" she meant that if you guys planning to stay only for a couple years and the wife does not mind on not working but you guys have no intention of settling in the US why apply for her for green card...since even if she gets her green card if you guys stay for a couple years and then leave back to wherever you guys have lived before then she'll lose her green card due to "abandoning her permanent residency", so that's why she mentioned this post...anyway, I see you've got plenty of info here already so it I won't repeat the same thing what people have already posted up here. Decision is yours, think it through and act the way you would like. Either way, good luck, happy new year for you and your family!

[Dual National 0]

The link you provided is helpful. Basically what you are saying is that if we apply for a change of status from within the US, there could be a problem, whereas if we do so from outside the US, there is not, correct?

If so, this is understandable. We assumed that she may have to leave the country early next year. In fact she still has professional commitments abroad best satisfied if she travels.

The first time my wife received a US tourist visa back in 1994, she was asked if she had intent to move to the US. She replied: "eventually, but not now." It was entirely truthful. It's only been the past two years or so that we've made more concrete plans to raise our children in the US.

I know it SEEMS absurd. Read this: http://www.hooyou.com/familybased/exceptions.html

Read the whole passage but I bolded important parts. Basically, you have STATED your intent. You can see here that you can be denied for preconceived intent, or "fraudulent intent".

Like I said, personally I wouldn't risk it. Talk to an attorney.

I'm not being rude when I say - being your spouse gives her no rights to live in the US. It gives YOU the right to petition for her, but it does not guarantee her approval. With 2 kids to worry about, I would not risk it. Others would. Whatever you decide, you need to live with the consequences, not us.

[VanessaTony 3,567]

The link you provided is helpful. Basically what you are saying is that if we apply for a change of status from within the US, there could be a problem, whereas if we do so from outside the US, there is not, correct?

If so, this is understandable. We assumed that she may have to leave the country early next year. In fact she still has professional commitments abroad best satisfied if she travels.

The first time my wife received a US tourist visa back in 1994, she was asked if she had intent to move to the US. She replied: "eventually, but not now." It was entirely truthful. It's only been the past two years or so that we've made more concrete plans to raise our children in the US.

Correct. I'd do DCF myself as you live overseas as well. This will make the process significantly quicker for you. Even if there isn't DCF available they tend to fast-track i-130 when the USC spouse is overseas. There's nothing stopping her from continuing to visit during the process or even remaining there for a bit then returning to India to process a bit.

She'll enter the US with an IR-1 visa which will result in a 10 year greencard. She can work, travel etc immediately.

[Dual National 0]

Thanks, that's good to know.

Our current country of permanent residence isn't India and that's not where I would petition. I assume this isn't a problem.

Correct. I'd do DCF myself as you live overseas as well. This will make the process significantly quicker for you. Even if there isn't DCF available they tend to fast-track i-130 when the USC spouse is overseas. There's nothing stopping her from continuing to visit during the process or even remaining there for a bit then returning to India to process a bit.

She'll enter the US with an IR-1 visa which will result in a 10 year greencard. She can work, travel etc immediately.

[VanessaTony 3,567]

Thanks, that's good to know.

Our current country of permanent residence isn't India and that's not where I would petition. I assume this isn't a problem.

I just assumed. My bad. But nope doesn't matter for your process but would depend on whether there's DCF or not.