US citizen married to EU waiver living abroad

[Vicente C 1]

I'm new to this site so please pardon my ignorance on where to post my question.

I'm an US citizen my wife lives abroad and she comes and goes back on a visa waiver esta program.

On one of her trips we decided to get married and we did.

Due to family business and her mother advance age she can't come and stay the time required for the green card application,she can't stay for more than a couple months at a time due a miriad of family and business issues.

She keeps coming each time with her visa waiver but we want to correct that.

My question is,Is there some kind of visa or something we can apply for so we don't have to be worried each time she comes raising red flags for her multiple entries?

If we do it the regular channels she'll have to stay almost a year without going back which is impossible.

Any suggestions?

Thanks!!!

[JFH 12,191]

She can’t use the VWP (visa waiver program) to live in the USA. 

 

She has two choices:

 

-she continues to live in her home country and visits you occasionally on the VWP. Assuming she never overstays, maintains strong ties to her homeland, doesn’t work while she is visiting (not even remotely for a company back home) then she should have no issue with frequent visits. I visited my husband over 40 times using the VWP - some visits were 4 or 5 weeks apart. 

 

- she moves here permanently for which she would need an immigrant visa. The process takes approximately 12 to 14 months and she can visit you during this processing period. She cannot move here permanently until the visa has been issued. Once she arrives, she can visit her family whenever she wants but she must maintain her residence here in the USA. If she wants to continue working in her homeland this is not the correct path for you. 

 

There is no visitor visa that would allow her to stay for a year. A year is not visiting. You either live here or you are a visitor. 

[JFH 12,191]

19 minutes ago, Vicente C said:

 

Due to family business and her mother advance age she can't come and stay the time required for the green card application,she can't stay for more than a couple months at a time due a miriad of family and business issues.

 

This is a very important issue. It is against the law to enter as a tourist with the intention of applying for permanent residency. The waiting time for the immigrant visa must be spent living outside of the USA. Leisure visits are permitted during this period. But it is not possible to enter on the VWP with the intention of staying here for good. 

Edited December 14, 2019 by JFH

[Vicente C 1]

32 minutes ago, JFH said:

This is a very important issue. It is against the law to enter as a tourist with the intention of applying for permanent residency. The waiting time for the immigrant visa must be spent living outside of the USA. Leisure visits are permitted during this period. But it is not possible to enter on the VWP with the intention of staying here for good. 

Our intention is not for her to stay here,just the freedom of her being able to legitimately come and stay with me 2,3,4 months at a time and don't have to worry at entrance for questions of why you coming.

More likely in 5 or 6 years I'll retire to her country so our intent isn't her staying here.

Os there some sort of visa or status that allows that?

Thanks!

[JFH 12,191]

9 minutes ago, Vicente C said:

Our intention is not for her to stay here,just the freedom of her being able to legitimately come and stay with me 2,3,4 months at a time and don't have to worry at entrance for questions of why you coming.

More likely in 5 or 6 years I'll retire to her country so our intent isn't her staying here.

Os there some sort of visa or status that allows that?

Thanks!

She can stay up to 90 days each time on the VWP.  That’s all. But your posts are contradictory. You say she has many business and family matters to attend to that prevent her from living here. Then you say she wants to spend “almost a year” here (anything over 180 days puts her on the IRS radar if nothing else), now it’s just a few months. If she can spend “almost a year” or even 4 months here, it would suggest that her business and family commitments at home are not that important. 

[JFH 12,191]

14 minutes ago, Vicente C said:

don't have to worry at entrance for questions of why you coming.

 

Everyone is questioned upon entrance. Even with a different visa type she would still be questioned. As a visitor she has no right to entrance, she must ask permission and if the CBP agent, after questioning her, is satisfied that her intentions are genuine, then she/he will grant her the privilege of admittance. There is no way for a visitor to avoid the questions at the border.

[Canerican 242]

As @JFH has stated it is illegal to come on the ESTA/visit visa with the intent to immigrate. Your spouse already has immigrant intent as she is married to you, a US Citizen. There is no getting around being questioned when your spouse enters the US, everyone is questioned. When I was going through the K-1 process and came to the USA to visit I was questioned and I am from Canada. 

 

If you do not go the CR/IR-1 route to bring her here then she will be questioned each time she enters the USA. Even if you go through the CR/IR-1 process she will be questioned when she visits. The following are your options:

 

1. Go through the CR/IR-1 process to immigrate her to the USA. This process will take as @JFH has stated 12-14 months. While you are going through the process she can visit, but will need to prove that she is going back to her home country and provide evidence if asked that she will be going home at the end of her stay. You will have to file an I-130/I-130A with the appropriate evidence and USCIS will adjudicate your case then send it to the National Visa Center (NVC) who will process your I-864 and other additional forms. After this the petition will be sent to the US Consulate in your spouses home country. She will then do a medical at a US approved physician in her home country and an interview at the US Consulate. If approved she will be able to enter the USA and can use her visa as a green card (GC) till she receives her physical GC. Although if she uses her GC and is out of the US more than her home country CBP will start to get suspicious and suspect that she has abandoned her permanent residency status here in the US. If your spouse can tie up or have someone look after the family business as well as have someone else look after her aging mother this would be a good option. 

 

2. You do not go through the CR/IR-1 process and she continues to use her visit visa to come to the USA to see you and is questioned each time. As long as she is in her home country more than the USA CBP may not be suspicious, although each time she visits she will have to prove to CBP that she will return at the end of her visit. You wait the 5-6 years and retire in her country. This option will work if she has to be in her home country to look after family business and her aging mother often. 

 

Hope this helps. 

[Boiler 46,322]

With this sort of time one that last thing she should do is prejudice the use of the VWP, so avoid the long trips, seems her commitments would not allow those anyway, and a reasonable time gap between trips.

[Vicente C 1]

 

3 hours ago, CDN(ON)-USA(VT) said:

As @JFH has stated it is illegal to come on the ESTA/visit visa with the intent to immigrate. Your spouse already has immigrant intent as she is married to you, a US Citizen. There is no getting around being questioned when your spouse enters the US, everyone is questioned. When I was going through the K-1 process and came to the USA to visit I was questioned and I am from Canada. 

 

If you do not go the CR/IR-1 route to bring her here then she will be questioned each time she enters the USA. Even if you go through the CR/IR-1 process she will be questioned when she visits. The following are your options:

 

1. Go through the CR/IR-1 process to immigrate her to the USA. This process will take as @JFH has stated 12-14 months. While you are going through the process she can visit, but will need to prove that she is going back to her home country and provide evidence if asked that she will be going home at the end of her stay. You will have to file an I-130/I-130A with the appropriate evidence and USCIS will adjudicate your case then send it to the National Visa Center (NVC) who will process your I-864 and other additional forms. After this the petition will be sent to the US Consulate in your spouses home country. She will then do a medical at a US approved physician in her home country and an interview at the US Consulate. If approved she will be able to enter the USA and can use her visa as a green card (GC) till she receives her physical GC. Although if she uses her GC and is out of the US more than her home country CBP will start to get suspicious and suspect that she has abandoned her permanent residency status here in the US. If your spouse can tie up or have someone look after the family business as well as have someone else look after her aging mother this would be a good option. 

 

2. You do not go through the CR/IR-1 process and she continues to use her visit visa to come to the USA to see you and is questioned each time. As long as she is in her home country more than the USA CBP may not be suspicious, although each time she visits she will have to prove to CBP that she will return at the end of her visit. You wait the 5-6 years and retire in her country. This option will work if she has to be in her home country to look after family business and her aging mother often. 

 

Hope this helps. 

Thank you all for the responses.

I might have been misunderstood,she cant stay here more than 3 ,max 4 months so the issue I'm having is that I dont want her making up stories at entrance,

Obviously she can't say she's coming to visit her husband just because many think that everyone that comes wants to stay here.

This is not our case

I'm the one that'll be better off living retirement over there,and she has ample income in an established family business and the last thing would be to come here and start looking for a job at the age of 60.

That for the ones that think that everyone wants to come in and stay.

I just cant go to live there just yet because my retiring age isn't met yet.

I think personally that it should be a seccion of the law for situations like this ,when a spouse can travel freely without having to apply for a permanent residency and without having to say she's coming to visit Mickey Mouse instead of the truth.

I have a serious problem with not saying the truth.

[Boiler 46,322]

Well nobody on here has suggested or would suggest that she does not tell the truth.

 

Under the VWP the max she can stays is 90 days, so 3 or 4 months is irrelevant.

 

Having said that you should never seek to max out the VWP as you never know what might delay your return, and 90 day trips are not a good idea if you wish to retain your VWP privileges.

[Vicente C 1]

13 minutes ago, Boiler said:

Well nobody on here has suggested or would suggest that she does not tell the truth.

 

Under the VWP the max she can stays is 90 days, so 3 or 4 months is irrelevant.

 

Having said that you should never seek to max out the VWP as you never know what might delay your return, and 90 day trips are not a good idea if you wish to retain your VWP privileges.

Thanks Boiler

The time of stay isn't an issue, she's 70% of the time tending her business at her home country and never came even close to stay the 90 days they give her,even when we planned that way once we had to get an emergency ticket for her to rush back and solve problems.

That's why we can't even apply for her residency at her home consulate ,because when granted she can't stay here the most of the time to keep it.

I guess it's almost impossible to do not come here to stay.

Its either come and leave soon

Or come and stay forever

There's not an in between for the ones that don't care about moving here.

And in my case I don't want to move there and live of her plus loosing retirement.

 

[pushbrk 13,207]

She can apply for a B1B2 visitor visa that allows six month stays, but must still spend more time outside the US than inside, and is still subject to the same entry requirements.

[LilyJ 1,258]

1 hour ago, Vicente C said:

I dont want her making up stories at entrance,

Obviously she can't say she's coming to visit her husband just because many think that everyone that comes wants to stay here.

Never ever have her or let her lie at entry. Yes she absolutely can say she is coming to visit her husband and many do. Worst thing you can ever do is lie to CBP

[Boiler 46,322]

25 minutes ago, pushbrk said:

She can apply for a B1B2 visitor visa that allows six month stays, but must still spend more time outside the US than inside, and is still subject to the same entry requirements.

High risk, and as she can not stay long anyway seems an unnecessary risk.

[Quarknase 1,072]

What you describe seems to be a perfect fit for what you're doing at the moment, minus the lying.

If she spends 70% of the year in her home country and comes for plenty short trips, whenever her business allows for it, this doesn't sound like anything else is required.

I assume she can generate ample of proof that she's needed in her home country, plus her history of already having many short visits (over the past year/s?).

She can tell CBP that she's visiting her husband for XX weeks, and if asked provide proof of her ties to home to show that there's no immigrant intent. If the marriage took place before all the previous trips, she can show this too.