Applying in the US vs Overseas

[Sammy.NZ 45]

Hi guys,

I'm a newbie and just trying to wrap my head around this process and hoping to get some insight from a few people further along in the process. Some quick background, I'm a US citizen living in New Zealand with my kiwi partner. I've been here 3 years on a partnership based residency visa. We are hoping to move over to the US in about 12 months. We currently aren't married but planning on it. 

 

My main question as of now is if there's any thoughts about if it'd be quicker to apply in the US or overseas (in NZ)? Tossing up between moving home and getting married right away (Can my partner come over on a tourist visa waiver and lawfully wed or would we have to get a K-1 first?) and apply for a spousal visa in the U.S.  OR if we should get married and apply for a spousal visa from NZ?

Really unsure the best route here, my main priority right now is getting back to the U.S. as quickly as possible so worried if we apply here we won't be allowed to leave NZ until the green card comes through (Unsure if we can go early with my partner on a tourist visa waiver while it's processing - thoughts?) Alternatively, if we apply from the U.S. is my partner allowed to remain there while the visa is processing? Assuming he'd have no working rights which we can afford but it's not ideal.

Also, what's the difference between IR1 or CR1? 

 

Any thoughts or advice welcomed. 

[geowrian 22,337]

You can either do a K-1 pre-marriage or a CR-1 post-marriage.

For a CR-1, you can marry anywhere, even in the US.

You cannot enter on a tourist visa (or VWP/ESTA) with intent to stay and get a green card within the US (AOS process). You would need to go through the visa process. Visas are only obtained outside the US.

 

IR-1 = Spouse of a USC (marriage >= 2 years)

CR-1 = Spouse of a USC (marriage < 2 years). You will get a 2 year green card instead of 10 year green card. ROC will be required prior to the 2 year green card expiration to get a 10 year green card. This is demonstrating that the marriage was bona fide again.

 

Edit: They can continue to visit during the process, but they cannot remain in the US past their legal stay. VWP entry is 90 days and subject to CBP inspection.

Edited September 1, 2020 by geowrian

[amerikelinka 16]

On 9/1/2020 at 10:54 AM, Sammy.NZ said:

OR if we should get married and apply for a spousal visa from NZ?

If you're living in NZ with your partner, then you'll have the burden of proving you intend to re-establish domicile in the U.S. You said you're living in NZ on a residency visa, which would suggest that your domicile (principal residence) is now in NZ. If you can prove you've taken concrete steps towards re-establishing domicile in the U.S. (there's a lot of good info about this in the forums), then you have a good chance that applying from overseas and waiting with your partner for their visa will work for you. If you can't do that, it might be better to get married in NZ now and then you move back to the U.S. before applying. CR1/IR1 visas are a priority during the pandemic, while K-1 visas are not.

 

For reference, I'm living overseas with my partner right now, but I'm on a temporary student visa. I submitted my visa along with lots of other evidence that I never moved my domicile from the U.S. (plus we have a joint sponsor, since my non-U.S. income can't be used for the affidavit of support) and it seems to have been accepted at the NVC stage. We haven't made it to the interview yet.