DCF or employment-based visa and then marriage-based AOS??

[whattodo 0]

My husband and I have been married for two and a half years. I am a US citizen and have a carta di soggiorno (residence) in Italy. We intend to move to the US next year. My husband works in Italy as a manager for a multinational company and has a strong chance of getting transferred to the US with his current employer. He has already discussed this intention with them and has received assurances, but of course nothing is guaranteed! I'm trying to figure out the best way to manage the immigration process. I'll list the options, as I see them, and ask for your feedback, advice, and warnings about what trouble we might run into and what is most advisable:

1) DCF in Rome for marriage-based immigration. If we go this way and are granted the immigration visa based on our marriage before his employer is ready to transfer him, what happens? Can he simply visit the US, obtaining his permanent residence status and green card, and then continue working in Italy for some months, as long as there's good evidence that he is making effort to transfer his employment or seeking employment in the US? He has to continue to support his college-age children here and can't afford to abandon his work and move to the US before finding a job there. Do we risk losing his immigration status and, if so, would that make it difficult to obtain it again in the future?

2) Employment-based visa for transfer with his current employer and then adjustment of status based on our already-existent marriage once we've arrived in the US. Is this possible? Any problems with it? An advantage I see is that, in this case, we could probably use his income in the I-864, whereas I doubt we can include his Italian income if we apply for DCF from here, and my own income is borderline...

3) Employment-based visa and AOS based on employment, disregarding the fact that we're married. If I understand, the AOS for employment may be slower than AOS for marriage, so this doesn't seem to make sense unless I'm missing something. Also, this would make him more dependent on his current employer which doesn't seem like the best option either, does it?

From what I'm reading, the DCF is generally easier than the adjustment of status and wouldn't burden him with travel limitations, etc. But I'm concerned about getting it and then not being quite ready with the employment at the same moment the visa is granted. Any suggestions would be greatly appreciated.

Thanks!

[MargotDarko 0]

Your best route is DCF. As you've been married for more than two years, your husband will receive a 10 year green card as soon as he enters the states for the first time. And he will start to build up his three years needed for citizenship application from the moment he enters on the IR1.

If you file the I-130 within in the next few months, it would probably take a few months for approval. The approved petition is good for a year. You delay the process by not submitting your "ready for interview" document for a few months. Once that's submitted you'll have another month or so wait for medical and interview, and then once the visa is granted he'll have six months to enter the states for the first time using that visa. That activates his PR status and generates a green card - you'll need a US address for this, such as a trusted family member. If his job hasn't transferred yet, he can easily return to Italy for several months. It supposed to be up to a year without compromising his PR status or needing to ask for special permission, but I would keep it as short as possible for your own peace of mind.

[whattodo 0]

... The approved petition is good for a year. You delay the process by not submitting your "ready for interview" document for a few months.

... If his job hasn't transferred yet, he can easily return to Italy for several months. It supposed to be up to a year without compromising his PR status or needing to ask for special permission, but I would keep it as short as possible for your own peace of mind.

Thanks for your response, Margot! The fact that the approved I-130 petition is valid for a year is good news and something I was completely unaware of. And even if we move ahead immediately with the interview and get the visa, your sense that it would be okay for my husband to return to Italy for some months while completing his employment transfer is reassuring.

If anyone else disagrees or has a different point of view, please let me know!

One more question:

Is true that a prospective immigrant should not enter the US as a visitor while the I-130 or any other part of the visa process is pending? We have a 10-day vacation to the US planned for October. My husband would not need a visa for that visit, as he enters under the visa waiver program. Will he encounter problems if we've already begun the DCF process? Do we have to wait until after that visit to submit the petition?

[MargotDarko 0]

... The approved petition is good for a year. You delay the process by not submitting your "ready for interview" document for a few months.

... If his job hasn't transferred yet, he can easily return to Italy for several months. It supposed to be up to a year without compromising his PR status or needing to ask for special permission, but I would keep it as short as possible for your own peace of mind.

Thanks for your response, Margot! The fact that the approved I-130 petition is valid for a year is good news and something I was completely unaware of. And even if we move ahead immediately with the interview and get the visa, your sense that it would be okay for my husband to return to Italy for some months while completing his employment transfer is reassuring.

If anyone else disagrees or has a different point of view, please let me know!

One more question:

Is true that a prospective immigrant should not enter the US as a visitor while the I-130 or any other part of the visa process is pending? We have a 10-day vacation to the US planned for October. My husband would not need a visa for that visit, as he enters under the visa waiver program. Will he encounter problems if we've already begun the DCF process? Do we have to wait until after that visit to submit the petition?

Glad to help. It was a while into my researching before I discovered that an approved I-130 was good for a year.

It's definitely not true that your husband couldn't enter on the VWP after starting the immigration process. As long as he shows proof of his return to Italy (return tickets, letter from employer, mortage/lease) he'll have no problem at all. In your case, it should be even less of a problem since you will be travelling with him and returning as well. The concern that the immigration officer might have is that he would enter and not leave - but you'll have plenty to show that that isn't the case for your holiday.

[whattodo 0]

Glad to help. It was a while into my researching before I discovered that an approved I-130 was good for a year.

Thanks again. Can you give me a reference for where you learned that the I-130 approval is good for a year? I know that's a lot to ask. These research projects meander in and out of so many sources that it's often hard to know where we learned something. But I'd like to verify it independently if I can, in case it does really turn out to be necessary for us to stall a bit (I hope not...).

Thanks also for your view on the in-process travel.

And good luck with your own process!

[whattodo 0]

Glad to help. It was a while into my researching before I discovered that an approved I-130 was good for a year.

Thanks again. Can you give me a reference for where you learned that the I-130 approval is good for a year?

Oh, I think I found it. Immigration applicants have one year from when their priority date is current to apply for a green card or immigration visa. Since a spouse's priority date is immediately and automatically current, we should have one year from I-130 approval before the govt. thinks we have abandoned our petition. I guess you can ignore my last question.