Living together on tourist visas while waiting for CR-1?

[bmnics 0]

My Hungarian fiance and I (US Citizen) are planning on getting married in Ireland (where he and his family reside) this September. After that, we plan to apply for the CR-1 Visa. 

 

At first, we were thinking we could have him stay on VWP for less than 90 days and then he could go to Mexico for a few days and re-enter. I now realize that could easily constitute border hopping.

 

Anyway, some complications to our situation:

 

1) I am a full-time student and can't take longer than 2 quarters (about 5 months) off of enrolment to maintain my admission. I am currently on leave for work and will have to return in September just after we get married.

2) He is currently trying to find an EU-based remote working job so he can make money while in the US, which would mean he quits his current job. Is that an ok thing to do? Would that maintain enough of a tie to EU to eliminate issues when entering US on VWP?

4) While he has a well-paying job and mine is decent, we both have student loans and a wedding to pay for (though we're trying to keep costs to a minimum!). 

5) While we're very good at long distance, we are looking forward to finally living together. If our only option is to live apart and make short but very few visits, we'll do more than our best. But given it's a marriage, we want to do everything we can to remain physically together.

 

We're now considering the following:

- We get married in September in Ireland.

- We enter the US a few days/weeks after our wedding, fiance on VWP with a return ticket already purchased for December. I go to school and work for one quarter. Fiance works remotely from EU-based job. While living in the US, we would be staying in a studio apartment rented from my parents. No formal lease to attach him permanently to the address.

- While in US, we apply for CR-1.

- In December, before his 90 days on VWP are up, we return to Ireland and stay there while fiance continues to work remotely or perhaps at his old job? Not sure yet. I may be able to do some online coursework and care for his family members (non-paid). I may also be able to do research for my degree there (we met while I was studying abroad in Ireland). I could be there for up to 90 days on a tourist visa.

- Depending on CR-1 status at this point, we could either 1) live separately for a short time waiting on CR-1 greencard approval, me studying in US, him working in Ireland. Or we could 2) do the switcheroo back to the US so I can study in US while he's here working remotely. 

- Depending on options we would then: 1) Schedule our interview at the consulate in Dublin and he would enter US on CR-1. Would I need to be at the interview? or 2) Schedule an interview at an embassy in the US. Is it possible to do this for visitors on the VWP? Then have him fly in from Mexico or Canada (or somewhere else with inexpensive flights) on CR-1.

 

It's a little complicated, but is this situation viable? I will so appreciate any advice anyone can give. We already decided after months of back-and-forth that K-1 wasn't going to work for us so we're really trying to make the CR-1 work. And of course this is all dependent on the COVID-19 situation. Sorry if this was a headache to read! 

 

Much love

[geowrian 22,337]

20 minutes ago, bmnics said:

At first, we were thinking we could have him stay on VWP for less than 90 days and then he could go to Mexico for a few days and re-enter. I now realize that could easily constitute border hopping.

It wouldn't work anyway. Unless you are a resident of Canada or Mexico, crossing the border to Canada or Mexico, respectively, does not reset the 90 days.

 

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2) He is currently trying to find an EU-based remote working job so he can make money while in the US, which would mean he quits his current job. Is that an ok thing to do? Would that maintain enough of a tie to EU to eliminate issues when entering US on VWP?

So...the tie to return home would be working while in the US via the VWP? Think about that for a second...there's at least 2 major issues with that plan.

 

...in case it didn't click yet:

1) Clearly isn't a tie if you can do it while abroad.

2) VWP is not work authorized in the US.

 

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- We get married in September in Ireland.

- We enter the US a few days/weeks after our wedding, fiance on VWP with a return ticket already purchased for December.

Spouse at that point.*

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- While in US, we apply for CR-1.

You can do this before or after visiting.

 

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- Depending on CR-1 status at this point, we could either 1) live separately for a short time waiting on CR-1 greencard approval, me studying in US, him working in Ireland. Or we could 2) do the switcheroo back to the US so I can study in US while he's here working remotely.

#2 would involve unauthorized work, so no-go there.

 

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1) Schedule our interview at the consulate in Dublin and he would enter US on CR-1. Would I need to be at the interview?

It's not required. It sounds like you have a decent chunk of face time together already and it's not a difficult consulate, so I wouldn't be too worried. But if you can be there, all the better anyway.

 

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 or 2) Schedule an interview at an embassy in the US. Is it possible to do this for visitors on the VWP? Then have him fly in from Mexico or Canada (or somewhere else with inexpensive flights) on CR-1.

There are no US embassies or consulates within the US. There is no need for one as visas are for entering the US and one would already be within the US.

Edited March 23, 2020 by geowrian

[pushbrk 12,914]

You've got good answers, but understand that he would be "visiting" not "living in" the US.  You do not reset the 90 days with short departures.  The VWP is for visiting and he must be outside the US at least as much time as in.  Typically, after a two month visit, he would need to be gone for two months before reentering.  That's not a hard and fast rule but if it is deemed he's abusing the privilege, he is not only denied entry  that time but loses the ESTA or VWP privilege altogether.

 

In my opinion, working remotely for non USA company is not unauthorized work, but opinions can vary on that.  In nearly all cases, couple endure significant time separated during any spouse visa process.  The VWP is better than nothing but you are going to be separated for at least half the process.  So, get your head around that.

[Dashinka 24,543]

The only thing I would add to the advice above is that having the ability to visit while processing a CR1 is a privilege that not everyone has.  We see stories all the time where folks try to game the system and this privilege is revoked.  The best recommendation for those with this ability is short more frequent visits which helps to establish trust with CBP.  Working remotely for a foreign company may or may not be an issue (might be more of an issue if the foreign company also has US based facilities), but it could raise questions to a CBP officer when your then spouse attempts to enter the US on an ESTA.

 

Good Luck!

[Just Paul 4,595]

Another option is just to marry here now and adjust.  The downside being that he can't work or travel until getting AP/EAD and finding someplace to get a marriage license in Northern California is a challenge now.    But you can get married anywhere that you can get that license and in Colorado you can do it on your own apparently.

[geowrian 22,337]

4 hours ago, Paul & Mary said:

Another option is just to marry here now and adjust.

I'm not certain they are in the US right now. They have not stated where they are located at this time.

 

=====

Re: Unauthorized employment

Remote work for a foreign employer is in a gray area between tax law and immigration law. There are various factors that may or may not contribute, such as if there is a US-branch of the company, if the work is active or passive, etc.

That said, there appears to be a pretty decent increase in denial of applications for entry and and expedited removals for people for people working in the US. I believe there were at a minimum of 2 cases posted within the past month or so for VWP travelers who encountered this doing exactly what the OP planned to do.

Whether one believes it is allowed or not, CBP only needs to believe you will do it to deny entry, and I have observed them taking that stance more recently.

 

Personally, I go by the test of "if you told CBP your plans, would they allow or denial entrance?". IMHO, I think the plan here would very likely result in being denied entry. Being admitted would more likely be a result of CBP not knowing the plans (you don't have to tell them something unless asked) and relying on VWP laurels.\

 

Edit: I did try to pull up previous threads on this, but search is not cooperating with me. I used to do site-scoped searches on Google but it appears that changes to the robots.txt file and/or other changes have made this approach impossible to get useful results. I tried the VJ search but that had the opposite impact and gave lots of results but not matching what I was looking for (and no, the suggestion to search for "x AND AND AND y AND AND AND z" did not help, VJ-search #thankyounothankyou).

Edited March 23, 2020 by geowrian

[carmel34 3,638]

7 hours ago, bmnics said:

If our only option is to live apart and make short but very few visits, we'll do more than our best. But given it's a marriage, we want to do everything we can to remain physically together.

Time apart while married is part of the CR-1 process, it's unavoidable for most couples given US immigration law.  K-1 is the only way around that, but you have decided against it most likely because of the long period of time in the US for the foreign fiance/spouse, 6-9 months unable to work or leave the country during the AOS process.  For the reasons others have mentioned, spending as much time together as possible is easier if it is outside the US, so focus on those options that allow you to work or study remotely in the EU.  I would also add to the good advice you've already received that short visits to be together can work very well, and they don't have to be "few."  I flew to Brazil 9 times to be with my husband during our CR-1 process.  And if you're already very good at long distance, it should not be a problem if you really trust each other.  In our case, I found that our long-distance relationship became stronger after marriage.  Yes, it was a long painful wait, but we got lucky and it was only 11 months.  Good luck!  PS, I love the way you ended your message, "much love."  All the best and congratulations on your upcoming marriage.

[SusieQQQ 11,586]

FWIW a friend of mine (yes, a real life one not someone on the Internet) who was on a non-EAD H4 and working remotely for a foreign company, was informed by the company immigration lawyer working on their adjustment of status that such work was in violation of the law. I think it’s treated more complacently by many people here because the get-out-of-jail-free card of marrying a usc means it doesn’t matter for them.

[JFH 12,190]

Many of us endure separation during this process. It is possible. It’s not great but no one has yet died from being apart. I visited regularly on the VWP throughout the process. Shorter, frequent visits are certainly better. We have seen more than a few cases here where people tried to enter for 88 or 90 days and were denied because they could not convince CBP to their satisfaction that they were only here to visit and would not be working here and had ties to return home to. My advice on this aspect is always “don’t push your luck. Be thankful you have the option of visiting at all.”

[HKS 169]

On 3/23/2020 at 4:07 PM, JFH said:

Many of us endure separation during this process. It is possible. It’s not great but no one has yet died from being apart. I visited regularly on the VWP throughout the process. Shorter, frequent visits are certainly better. We have seen more than a few cases here where people tried to enter for 88 or 90 days and were denied because they could not convince CBP to their satisfaction that they were only here to visit and would not be working here and had ties to return home to. My advice on this aspect is always “don’t push your luck. Be thankful you have the option of visiting at all.”

Yes be very grateful you can visit at all. My husband is from a country where they will not issue a visitor visa. And yes they told him as such at an interview in a US embassy. 

This process is awful for all of us. 

I pray covid 19 will be over soon and I will be reunited with my husband. I pray everyone is reunited with their loved ones.