B2 for Fiance of USC

[k8mate 0]

Hello and thanks for any help, it's greatly appreciated!

 

So I'm an Australian citizen engaged to a US citizen.  In December of 2017, My american fiance  applied for the off-shore Australian de-facto partner visa.  Processing time for the partner visa is between 12-16 months.  We anticapate the visa to be granted between January - April 2019, in which we plan to return back to Australia permanently.

 

My american fiance has been with me in Australia since January of 2018 on a tourist visa, leaving every 3 months together during his stay to renew his visa, and has to return back to the states for work in August.  We've been engaged since January of 2018 and our relationship is over 5 years old.  I lived in the USA for over 4 years, working full-time on an E3 visa and forfeited my E3 in December of 2015.

 

My fiance and I would like to stay together in America while we wait for the Australian de-facto partner visa to be granted,  which requires us to travel back to australia once granted.

 

We have no interest in applying for the green card, or settling down in America, and I will not be working while I'm there.

 

We're wondering the best way to provide evidence for his application for the de-facto visa and proof that we fully intend on living in Australia once his visa is granted. 

 

Do we attach documents during the online application, and if so what are the best documents to provide to prove my ties to home and my fiances application for the australian de-facto partner visa?

 

My fiance works full-time online for an American company as an employee so we can provide all recent pay and bank statements.

 

I have my own online business in Australia and a bank account with sufficient funds.  I do live at home with my parents since we're saving for a house in Australia, but I have car and insurance in my name, phone number, mail, etc.

 

We're really hoping someone could provide some more insight into if our situation sounds doable for a B1/B2 visa.  We met with an US Immigration lawyer yesterday and he said our situation is perfect for the B2 Visa because the fact that we applied for my partner's Australian visa and not the K1 visa proves that we fully intend on living in Australia together.

 

We're just really concerned after reading all the denial posts on this forum and we want to make sure this is a viable option, or if anyone has any experience in a similar situation.

 

Thanks so much for any help!   

Edited July 6, 2018 by k8mate

[geowrian 22,338]

There's no way to attach documents to the DS-160 (non-immigrant application). He can carry documents with him to the interview and the CO may or may not request to view them (more often not doing so).

What he does for a living and his other circumstances are not relevant to your tourist visa application. Nobody can sponsor a tourist...you must qualify entirely on your own.

 

It personally sounds like you do not have many strong ties necessary for a tourist visa. Normally I would just say apply and find out, but in this case since you're from Australia I would suggest sticking with an ESTA even with the 90 day limit. If you apply for a B-2 and it is denied, you must update your existing ESTA (if you have one), and would almost certainly be denied. Then you would be left with no path to the US for a visit.

 

If you decide to try despite the above warning, I would carry documentation that you applied for permanent residency in Australia for your fiance, and be sure to bring it up.

Edited July 6, 2018 by geowrian

[JE57 239]

Remember that in any tourist application the CO is required to assume that you have immigrant intent and can only legally grant the B2 if there is reason to believe that there is no immigrant intent.   So in your case.... If you have a ESTA privileges you could visit the USA for 3 months without applying for a B2 visa, why do you need a B2?  The assumption might be that you are intending to live with your US  fiance   in the USA and if the Australian Visa does come thru that you'll simply marry and adjust status in the USA.   It seems like your ties to Australia are week.  Your business is an Online business so presumably could be done from anyplace in the world.  You don't own property and you live with your parents.  I disagree with your lawyer,  the Defacto Visa application doesn't prove anything other than you want to live with your fiance.  If he was already resident in Australia and you were married ( fiance  isn't a legal status only a stated intention to get married) then you conceivably use his ties to Australia and your ties to him to bolster your ties.   In this case, as stated above I think your chances of getting a B2 are very small and if you have ESTA privileges than you should definitely NOT apply as you would likely lose your ESTA.  To be fair your purpose for wanting the B2 seems to be to LIVE in the USA which is *NOT* the intent of a tourist visa.  Also note, that even if you got the B2 that the length of stay in the USA is determined at the Port of Entry and while most people get stamped for 6 months there is no assurance that you would get the 6 months or even any assurance that even with the VISA that you would be granted entry to the USA at all.  All-in-All if you have ESTA privileges I think it is definitely better to not risk that.   If you don't have ESTA than no harm in applying.   

[k8mate 0]

Thanks for the reply guys! 

 

I do have an ESTA and its set to expire on August 8th of this year.  If i was to apply for the b2 and be denied after my ESTA expired on Aug 8th, would that prevent me from applying for a new ESTA after its expired?

[Boiler 45,931]

Do you have someone to look after your business whilst you are away?

[geowrian 22,338]

1 minute ago, k8mate said:

I do have an ESTA and its set to expire on August 8th of this year.  If i was to apply for the b2 and be denied after my ESTA expired on Aug 8th, would that prevent me from applying for a new ESTA after its expired?

You would be permitted to apply, but the recent B-2 denial would almost certainly result in a denial still.

[k8mate 0]

@Boiler No, I work for clients around the world as a graphic designer and they pay me into my australian bank account through my australian business.  I would be taking the time off while I'm in america

[k8mate 0]

20 minutes ago, JE57 said:

Remember that in any tourist application the CO is required to assume that you have immigrant intent and can only legally grant the B2 if there is reason to believe that there is no immigrant intent.   So in your case.... If you have a ESTA privileges you could visit the USA for 3 months without applying for a B2 visa, why do you need a B2?  The assumption might be that you are intending to live with your US  fiance   in the USA and if the Australian Visa does come thru that you'll simply marry and adjust status in the USA.   It seems like your ties to Australia are week.  Your business is an Online business so presumably could be done from anyplace in the world.  You don't own property and you live with your parents.  I disagree with your lawyer,  the Defacto Visa application doesn't prove anything other than you want to live with your fiance.  If he was already resident in Australia and you were married ( fiance  isn't a legal status only a stated intention to get married) then you conceivably use his ties to Australia and your ties to him to bolster your ties.   In this case, as stated above I think your chances of getting a B2 are very small and if you have ESTA privileges than you should definitely NOT apply as you would likely lose your ESTA.  To be fair your purpose for wanting the B2 seems to be to LIVE in the USA which is *NOT* the intent of a tourist visa.  Also note, that even if you got the B2 that the length of stay in the USA is determined at the Port of Entry and while most people get stamped for 6 months there is no assurance that you would get the 6 months or even any assurance that even with the VISA that you would be granted entry to the USA at all.  All-in-All if you have ESTA privileges I think it is definitely better to not risk that.   If you don't have ESTA than no harm in applying.   

Thanks for the reply!  My intention is not to live in the USA, but is to be with my fiancee, visit his family, and do some traveling while we wait for his Australian visa to be granted.  We paid a lot of money for his australian visa and we have all intentions to start a life together in Australia which is why we applied for the partner visa. for Aus instead of america

Edited July 6, 2018 by k8mate

[GreatDane 366]

3 minutes ago, k8mate said:

@Boiler No, I work for clients around the world as a graphic designer and they pay me into my australian bank account through my australian business.  I would be taking the time off while I'm in america

Having a business that you can work on remotely is going to work against you. It's not solid ties if it's a bank account and a laptop. It's a real downside to self-employment.

[GreatDane 366]

Wouldn't there be a way to re-apply for ESTA so it doesn't expire on your trip? Either way, I wouldn't assume you could be here for more than three months.

[k8mate 0]

3 minutes ago, GreatDane said:

Wouldn't there be a way to re-apply for ESTA so it doesn't expire on your trip? Either way, I wouldn't assume you could be here for more than three months.

Yes, I can reapply for the ESTA before it expires, i was mostly wondering if it helps my chances of getting another ESTA if I don't currently have one while i apply for the b2 and it was denied.  I want to stay in the USA longer than 3 months because my fiancee's visa won't be granted until early 2019 and we want to travel and visit family.

[Boiler 45,931]

Stick with the VWP.

[GreatDane 366]

2 minutes ago, k8mate said:

Yes, I can reapply for the ESTA before it expires, i was mostly wondering if it helps my chances of getting another ESTA if I don't currently have one while i apply for the b2 and it was denied.  I want to stay in the USA longer than 3 months because my fiancee's visa won't be granted until early 2019 and we want to travel and visit family.

Honestly, you might need to look at third party countries. You had a previous visa that's usually a 24 month maximum temporary work visa and extended to be here 4 years. With you current plan to go on vacation, while saving for a house, and a flexible job, I think you'd have a hard time getting a more permanent visa. ESTA is it or a third party country.

[Boiler 45,931]

VWP is 90 days not 3 months.

[k8mate 0]

7 minutes ago, Boiler said:

VWP is 90 days not 3 months.

Yes, thats what i meant, sorry.