K1 for Partner while I get PR in Australia?

[Newhawaiki 20]

Hello VJ-ers, I wanted some thoughts about an outside of the box hypothetical situation my partner and I thought of that I haven't seen anywhere (in my own research, and most likely because it's simply not possible):

 

I submitted my fiance's I-129F in March with me being here in Australia with her, I'm still here with her and we're looking at various plans and pathways. 

 

We have been looking into doing an Australian partner visa for me and perhaps cancelling the I-129F petition.

We were thinking about getting married here in Australia and then me lodging a CR1 visa for her.

 

Yesterday we had a consultation with an immigration lawyer who informed us that we don't have to get married in order to lodge an Australian partner visa, that we will meet the de facto requirement (which I didn't think we would meet) and we should formally register our relationship and get a registered relationship certificate from the Australian government.

 

After the consultation my fiance had a lightbulb moment and asked if we could keep the I-129F going for her (since she feels bad with me cancelling because of the work I put into it) while we submit an Australian partner visa for me (having our cake and eating it too?). We would both rather get married in Hawaii where I'm from anyway. We sketched out the scenario on the whiteboard and wonder if there's a way where this is somehow possible? 

 

The areas of concern we saw would be in the area of establishing domicile which would be in relation to the scenario of if she had to be in Hawaii on the K1 without me there while I stay in Australia awaiting my Australian partner visa decision (you can travel in and out, but have to be in Australia when the decision on the visa is made). I personally think even if it were somehow remotely possible, it would be a huge red flag for an adjudicator with either of us not being in the same country together while they're processing.

 

Long story short:

We both would like to have dual citizenship and always saw it as playing the game for one "citizenship/PR" at a time, as in:

1)the American greencard for her first, and then once she gets a U.S. greencard for me to get Australian permanent residency and/or citizenship

2)or vice versa with doing the Australian PR for me first then her American greencard through a CR1 with us still getting married in Hawaii but for my fiance to be on a tourist visa with us going back to Australia after the wedding and waiting for her CR1.     

 

but now an unlikely but altogether interesting scenario 3) which is somehow doing both at the same time through a K1 for her in Hawaii (with her staying with my family) and an Australian partner visa for me here in Australia.

 

*P.S. I'm aware that citizenship involves spending a certain amount of time in each country 

 

 

Edited June 13, 2020 by Newhawaiki
clarification

[Lucky2Lucky 2,526]

So what you listed isn’t going to work. You can only be a permanent resident in one place..due to residency requirements . You guys need to think of where you want to live- everything else comes next.
If you want to live in the US then she comes to the US whether It’s k1 or cr1. She can file for citizenship after 3 years. Once she obtains her citizenship and then you guys can move to Australia and you can work on your Australian residency (I have no idea how that works). She can’t get her green card and then you move back to Australia to live- she would be abandoning her residency. Remember as both a US citizen and permanent resident you would both be required to report worldwide income and still file taxes. 
If you would rather live in Australia then forget the US immigration and have her work on you getting your residency. Once you get your Australian citizenship and you want to go back to the US you would petition her for CR1 and once GC obtained she can file for US citizenship after 3 years. That’s all I can think of if you both want dual citizenship. It will take a significant amount of time- don’t plan for it to happen quickly.

Edited June 13, 2020 by Luckycuds

[Newhawaiki 20]

18 minutes ago, Luckycuds said:

You guys need to think of where you want to live- everything else comes next.

Thank you @Luckycuds! This is the bottom line. I also think when it comes to immigration to do what Thoreau advises... "Simplify, simplify, simplify." And the situation I just outlined is anything but that! 

[Lucky2Lucky 2,526]

Haha yes. And I am a bit jealous; I love Australia and Hawai’i you guys are lucky you literally have the best of both worlds to me 😀

[Timona 4,207]

Getting K-1, getting married in Hawaiii and then going back to Australia to wait for the GC? 

 

I'm not telling you how to do your stuff, but I think that's on overkill in terms of time and $$. Furthermore, since you're already in Ausie, I'd just do the CR-1 and have that time that you're spending down there count towards the CR-1 process. Time difference between K-1 and CR-1 is like 4 months anyway. I'd just abandon the K-1 and do CR-1 and avoid AOSing all together 

 

[Newhawaiki 20]

4 hours ago, Luckycuds said:

Haha yes. And I am a bit jealous; I love Australia and Hawai’i you guys are lucky you literally have the best of both worlds to me 😀

Yes @Luckycuds I feel very blessed and lucky! I always tell my partner I don't know what I did to deserve her and such a situation, especially coming from Hawaii where people can feel trapped and stuck. It's humbling.  

 

Thank for taking the time to respond @Timona , I appreciate the feedback and can always use advice! It is a wild scenario!

 

The CR-1 certainly seems like the simplest of routes available. She's afraid of not being able to work right off the bat in Hawaii but really wants to be in Hawaii ASAP and isn't sure which voice to listen to. 

[Timona 4,207]

7 hours ago, Newhawaiki said:

Yes @Luckycuds I feel very blessed and lucky! I always tell my partner I don't know what I did to deserve her and such a situation, especially coming from Hawaii where people can feel trapped and stuck. It's humbling.  

 

Thank for taking the time to respond @Timona , I appreciate the feedback and can always use advice! It is a wild scenario!

 

The CR-1 certainly seems like the simplest of routes available. She's afraid of not being able to work right off the bat in Hawaii but really wants to be in Hawaii ASAP and isn't sure which voice to listen to. 

Then the CR-1 is your option. Add that to the fact that you are currently in Australia for a good amount of time. 

 

If you'd ask me, I'd rather wait the additional 3/4  months for a CR-1 and start working as soon as I land, than getting to Hawaii ASAP,  then having to wait another 1.5 years for AOS. 

 

Go to the local courthouse or get married tomorrow, wherever. You don't need a fancy wedding. A $2 wedding will just as much do as a $100K one. File a CR-1, forget it and enjoy your time in Australia. When it's time reaches, get your interview and you've avoided a tonne of headaches. Trust me, you won't want the AOS headache 

Edited June 13, 2020 by Timona

[Orangesapples 1,954]

I don't know how immigration laws in Australia work but in the US you can get citizenship after 3 years as a permanent resident married to a US citizen. One thing you may not have considered - if at the time when your green card is issued you're married for less than 2 years, you get a conditionals green card card and you have to remove conditions in two years. It's usually not a big concern if you don't have any plans to leave the US but it's annoying to deal with and can lead to delays with you getting your citizenship depending on your local office. If you use a CR1 you are considered a permanent resident at the time you enter the US with the visa. That's when it matters how long you've been married. A CR1 is valid for 6 months usually. So if you time it right, she can get an unconditional green card upon entry, live in the US for 3 years, apply for citizenship, then get citizenship. If she has a conditional card, this timeline is also possible, just more annoying and less certain. 

 

A K1 is a terrible choice. You will have to wait for a year on average after entry before she gets a green card. Really not good for your situation. 

[Newhawaiki 20]

7 hours ago, Timona said:

Add that to the fact that you are currently in Australia for a good amount of time. 

 

Go to the local courthouse or get married tomorrow, wherever. You don't need a fancy wedding. A $2 wedding will just as much do as a $100K one. File a CR-1, forget it and enjoy your time in Australia. When it's time reaches, get your interview and you've avoided a tonne of headaches. Trust me, you won't want the AOS headache 

@TimonaThat is a wonderful plan, it's about delayed gratification, going to Hawaii is delayed but when that time comes what will make it a better experience.

 

Forgetting the visa woes for a while and enjoying some workable stability in a single place sounds like heaven to me and is enough to cherish that plan! But it's doing the dance with everyone else. I'm also practicality minded which leads me to... 

 

The wedding idea is been a bit of a Pandora's Box for us at the moment! (we were in the process of planning a little wedding here in Aus. but my fiance's parent's severely disagree and want a big one in Aus; my fiance doesn't want one here and is set on having the small one in Hawaii... another story altogether that I will save you the reading of!)

 

Edited June 13, 2020 by Newhawaiki

[Newhawaiki 20]

3 hours ago, Orangesapples said:

I don't know how immigration laws in Australia work but in the US you can get citizenship after 3 years as a permanent resident married to a US citizen. One thing you may not have considered - if at the time when your green card is issued you're married for less than 2 years, you get a conditionals green card card and you have to remove conditions in two years. It's usually not a big concern if you don't have any plans to leave the US but it's annoying to deal with and can lead to delays with you getting your citizenship depending on your local office. If you use a CR1 you are considered a permanent resident at the time you enter the US with the visa. That's when it matters how long you've been married. A CR1 is valid for 6 months usually. So if you time it right, she can get an unconditional green card upon entry, live in the US for 3 years, apply for citizenship, then get citizenship. If she has a conditional card, this timeline is also possible, just more annoying and less certain. 

 

A K1 is a terrible choice. You will have to wait for a year on average after entry before she gets a green card. Really not good for your situation. 

Thank you for this high level of clarification @Orangesapples! Just the sheer level of complexity is enough to make it untenable, and what sounds good now may not be so in reality. A year on paper is different then actually living that whole year in that situation.

[Timona 4,207]

11 minutes ago, Newhawaiki said:

@TimonaThat is a wonderful plan, it's about delayed gratification, going to Hawaii is delayed but when that time comes what will make it a better experience.

 

Forgetting the visa woes for a while and enjoying some workable stability in a single place sounds like heaven to me and is enough to cherish that plan! But it's doing the dance with everyone else. I'm also practicality minded which leads me to... 

 

The wedding idea is been a bit of a Pandora's Box for us at the moment! (we were in the process of planning a little wedding here in Aus. but my fiance's parent's severely disagree and want a big one in Aus; my fiance doesn't want one here and is set on having the small one in Hawaii... another story altogether that I will save you the reading of!)

 

 

You can always do another big wedding. Had I been you, I'd try explain to the parents why I'd be going to the courthouse/ looking for an officiant ASAP for a small wedding. Hopefully,  they see the sense. After I put my paperwork in the mill, I'd then go ahead and plan for the big wedding and invite everyone. People have gone this route.

 

Think about it. Make a wise decision and save $$$ and 🤯🤯

Edited June 13, 2020 by Timona

[Orangesapples 1,954]

8 hours ago, Newhawaiki said:

@TimonaThat is a wonderful plan, it's about delayed gratification, going to Hawaii is delayed but when that time comes what will make it a better experience.

 

Forgetting the visa woes for a while and enjoying some workable stability in a single place sounds like heaven to me and is enough to cherish that plan! But it's doing the dance with everyone else. I'm also practicality minded which leads me to... 

 

The wedding idea is been a bit of a Pandora's Box for us at the moment! (we were in the process of planning a little wedding here in Aus. but my fiance's parent's severely disagree and want a big one in Aus; my fiance doesn't want one here and is set on having the small one in Hawaii... another story altogether that I will save you the reading of!)

 

Get married legally and you can always have a party at any time, anywhere. If family members are going to cause drama, they don't need to know you're legally married. And remember, it makes sense to try and make it so that when she enters the US on a spousal visa, you've been married for two years. So the sooner your date of marriage is, the better. 

[Newhawaiki 20]

@Timona @Orangesapples this is the merry-go-round of plans we currently are on, since the wedding is proving to be a source of consternation for my fiance, her family, and I (and you both are very wise, and may add an insight unknown to us but don't feel obliged to reply to this soap opera):

 

1. (Before Covid) Get married in Hawaii on K1, AOS, stay in Hawaii.

 

2. (After Covid) Maybe it would be better for us to do Aus. Partner Visa since I'm here in Aus and the possibility of travel is unknown. Partner and I felt good about this, and so did her family. Parents said we should do courthouse wedding and do a big one in Hawaii later. We all agree, courthouse marriages are closed due to Covid. I thought we can have a tasteful small wedding at the beach since that was one of the only wedding services still operating. I start planning the wedding and paid the celebrant. Celebrant and I start communicating about the details (who, what, when, where, how). I'm 100% ready to get married here. Fiance gets cold about the idea. Parents then say that "running off to elope is sleazy, what's the point of two weddings, you can only have one, you can't have a wedding in Hawaii anymore due to the state of the world" and "where is the guest list."  

 

3. (As of now) I talk to a lawyer about the Aus. Partner Visa. He says we don't have to get married to lodge one (we can register our relationship and since it will be a year we can put in De Facto partner status). Fiance and I go away for the weekend to think and have clarity. (After a few wines) She says that she feels relived that we don't have to get married to do Aus. Partner Visa and only wants to get married in Hawaii. She says let's just do K1 since I lodged it already. We sleep on it. Next day I ask her what would wisdom do(esp. since she has car payments and wants to save more), and agree that CR1 is the wisest but hardest pill to swallow emotionally (hence the idea of getting married in Hawaii on a tourist visa and then coming back to Aus. to wait out a CR1, I'm trying to find a middle ground for everyone). 

 

The only certainty we have is that we both ultimately want to be in Hawaii, it's just the span of time for when and how that happens.     

Edited June 14, 2020 by Newhawaiki

[Lil bear 4,189]

26 minutes ago, Newhawaiki said:

@Timona @Orangesapples this is the merry-go-round of plans we currently are on, since the wedding is proving to be a source of consternation for my fiance, her family, and I (and you both are very wise, and may add an insight unknown to us but don't feel obliged to reply to this soap opera):

 

1. (Before Covid) Get married in Hawaii on K1, AOS, stay in Hawaii.

 

2. (After Covid) Maybe it would be better for us to do Aus. Partner Visa since I'm here in Aus and the possibility of travel is unknown. Partner and I felt good about this, and so did her family. Parents said we should do courthouse wedding and do a big one in Hawaii later. We all agree, courthouse marriages are closed due to Covid. I thought we can have a tasteful small wedding at the beach since that was one of the only wedding services still operating. I start planning the wedding and paid the celebrant. Celebrant and I start communicating about the details (who, what, when, where, how). I'm 100% ready to get married here. Fiance gets cold about the idea. Parents then say that "running off to elope is sleazy, what's the point of two weddings, you can only have one, you can't have a wedding in Hawaii anymore due to the state of the world" and "where is the guest list."  

 

3. (As of now) I talk to a lawyer about the Aus. Partner Visa. He says we don't have to get married to lodge one (we can register our relationship and since it will be a year we can put in De Facto partner status). Fiance and I go away for the weekend to think and have clarity. (After a few wines) She says that she feels relived that we don't have to get married to do Aus. Partner Visa and only wants to get married in Hawaii. She says let's just do K1 since I lodged it already. We sleep on it. Next day I ask her what would wisdom do(esp. since she has car payments and wants to save more), and agree that CR1 is the wisest but hardest pill to swallow emotionally (hence the idea of getting married in Hawaii on a tourist visa and then coming back to Aus. to wait out a CR1, I'm trying to find a middle ground for everyone). 

 

The only certainty we have is that we both ultimately want to be in Hawaii, it's just the span of time for when and how that happens.     

One problem with #3 .. marrying in HI and returning to Australia to wait out the CR1...   
Currently Australian citizens and permanent residents are not being granted exit permits to leave Australia .. I do not see that changing for at least 12 months ..  I doubt the reason ( going overseas to get married and then returning ) will meet the Dept of Homeland  Security(Aust) exemption clauses. You can leave as a USC .. but you then have a mandatory 14 day isolation in Australian POE on re entry .  The only reason you would be allowed to reenter would be as the spouse of an Australian citizen 

[Newhawaiki 20]

7 minutes ago, Lil bear said:

One problem with #3 .. marrying in HI and returning to Australia to wait out the CR1...   
Currently Australian citizens and permanent residents are not being granted exit permits to leave Australia .. I do not see that changing for at least 12 months ..  I doubt the reason ( going overseas to get married and then returning ) will meet the Dept of Homeland  Security(Aust) exemption clauses. You can leave as a USC .. but you then have a mandatory 14 day isolation in Australian POE on re entry .  The only reason you would be allowed to reenter would be as the spouse of an Australian citizen 

Thank you for this added level of clarification! We were wondering about the details of her leaving, even if was on a K1 leaving Aus. for good and if that would meet the exemption (leaving with my fiance to relocate to Hawaii and get married, not coming back to Aus.). 

 

To add more info to this plan we wouldn't get married in Hawaii till way down the track, as in a year or more and after my Aus. partner visa would be decided so we could go back to Aus. with no issues and from there I would file a CR1 for her.   

Edited June 15, 2020 by Newhawaiki