AOS or Consular Processing

[rowingdan 2]

Hi all,

 

My wife and I recently got married and we are standing before a major decision. Should we do the green card process in the U.S. (AOS) or my home country Germany (consular processing).

 

Even though we would prefer AOS, the issue we have with AOS is the long waiting time for the work permit (I-765).

 

I am currently in the U.S. on a J-1 without work authorization and my personal funds are coming to an end very soon. My wife wouldn’t be able to financially sustain both of us because she pays a lot for student loans. So we cannot wait 5-7 months until I would potentially receive the work permit.

 

If we move to Germany while waiting for the green card, I would be able to work and financially maintain both of us. However, we are not pleased with the long wait times for consular processing either (up to 2 years). Our goal is to live in the U.S. together, not Germany.

 

Do you have any suggestions or recommendations?

 

 

 

[JeanneAdil 6,505]

You do not AOS in US if married / that is for fiancee (K1)

you need to go thru the spousal visa petition process (CR1 - I 130)

guides above will give u the information you need to follow/ or USCIS under spousal visa

 

only LPR or USC can apply /  you are not either yet?

[iy2020 118]

1 minute ago, JeanneAdil said:

You do not AOS in US if married / that is for fiancee (K1)

you need to go thru the spousal visa petition process (CR1 - I 130)

guides above will give u the information you need to follow/ or USCIS under spousal visa

 

only LPR or USC can apply /  you are not either yet?

I assumed OP's spouse is the USC? In that case, they could definitely AOS (as long as the J-1 doesn't have the 2 year home residency requirement).

 

OP, it is definitely up to you and your partner's priorities and possibilities. But you are correct in that the EADs are taking several months to be approved. You could always try to expedite them after biometrics, but it is not a given that you'll get the expedite approved, and that still might take months.

 

If you do consular processing, just be aware that you might potentially need a joint sponsor, since foreign income normally does not count to meet the minimum guidelines (unless it will continue after you move back to the US). If your spouse moves back before you interview and secures a job that meets the income guidelines, then you won't need a joint sponsor.

 

Good luck in this process, whatever you decide!

[USC4SPOUSE 506]

@rowingdan it really is up to you whether to pursue AOS or consular processing. If you choose AOS, you could always request to expedite your EAD/AP - specially if you have a job offer. You would need to wait until you get your biometrics appointment. Then, you would call, request to expedite and provide evidence of job offer. (It does not need to be a fancy job. It could be anything). If that fails, you could always reach out to your US Senator or Congress representative. 

 

It sounds like your wife is employed. That would make it easier for her to sponsor your I-864. By the way, federal loans are deferred until Sep 2021 - I think. She could always consolidate them to bring down her interest and payment. She could also switch to a more favorable payment plan. There are several. She could also ask for a deferment. 

 

I would set up a spreadsheet and compare $$$ for both routes. If you move back to Germany, you will face some start up costs. You would need to fly there - not cheap , get an apartment, get work permit for your wife. She would need to get a job unless she can work remotely. 

 

Those are all things to consider. If your goal is to live here, and you are already here, why not just stay here and make it work? 

[Scandi 4,166]

Up to 2 years for DCF? I was always under the inpression DCF was very fast, maybe it differs between embassies.

 

Sounds like you have done your research, which is nice to read as so many come here and haven't done any research at all before starting to ask a million questions. 

 

If your financial situation is that bad then I guess there's only one option left for you guys. But I do believe DCF is available for those whose US spouse is actually living in the foreign country, I assume you guys can't DCF if she's only there as a tourist? I could be wrong.

[arken 4,197]

I believe OP is talking about typical i130-NVC-CR1 route not the DCF for consular processing. At present DCF is only allowed for exceptional situations anyway.

[rowingdan 2]

1 hour ago, iy2020 said:

I assumed OP's spouse is the USC? In that case, they could definitely AOS (as long as the J-1 doesn't have the 2 year home residency requirement).

 

OP, it is definitely up to you and your partner's priorities and possibilities. But you are correct in that the EADs are taking several months to be approved. You could always try to expedite them after biometrics, but it is not a given that you'll get the expedite approved, and that still might take months.

 

If you do consular processing, just be aware that you might potentially need a joint sponsor, since foreign income normally does not count to meet the minimum guidelines (unless it will continue after you move back to the US). If your spouse moves back before you interview and secures a job that meets the income guidelines, then you won't need a joint sponsor.

 

Good luck in this process, whatever you decide!

Thank you for the insightful response!

 

I am not subject to the 2 year requirement. My wife has a fully remote job here in the U.S. and her employer has no problem with her working temporarily from Germany. I am assuming in our case my wife wouldn't have to leave to the U.S. before me to secure a job?

 

Also, we were thinking about to do AOS and try to expedite the work permit. In case the expedite request would be denied, we would switch to consular processing and move to Germany. The only thing is that we only have one more month until my personal funds will run out. Do you think this approach would be realistic? I am also not sure about a refund for the I-485 in case we switch to consular processing. I know this form costs a lot..

[carmel34 3,631]

9 minutes ago, rowingdan said:

I am not subject to the 2 year requirement. My wife has a fully remote job here in the U.S. and her employer has no problem with her working temporarily from Germany. I am assuming in our case my wife wouldn't have to leave to the U.S. before me to secure a job?

 

Also, we were thinking about to do AOS and try to expedite the work permit. In case the expedite request would be denied, we would switch to consular processing and move to Germany. The only thing is that we only have one more month until my personal funds will run out. Do you think this approach would be realistic? I am also not sure about a refund for the I-485 in case we switch to consular processing. I know this form costs a lot..

Sounds like moving to Germany and doing a regular spousal visa process is the way go to if you only have a month left before your savings run out and you have to go back to Germany to work.  AOS is a very long process, and even if you filed the AOS package today, you would have to wait quite a while before you could ask for an expedited EAD (1-3 months), then you would need a written job offer, submit that, wait some more...  and it ultimately may or may not be approved.  If you wife can work remotely from Germany, and do it legally according to German laws, I recommend that you go back together and start the spousal visa process.  The process will take between 1 and 2 years, so she would need to let her US employer know as that length of time is not really "temporary."  Keep in mind that your wife should maintain ties to the US such as current driver's license, bank account, voter registration, etc.  Eventually at the NVC stage and at the visa interview the officers will ask about her US domicile or intent to re-establish a US domicile.  Good luck!

Edited July 2, 2021 by carmel34

[rowingdan 2]

1 hour ago, arken said:

I believe OP is talking about typical i130-NVC-CR1 route not the DCF for consular processing. At present DCF is only allowed for exceptional situations anyway.

Correct. However, I was looking into DCF as well and noticed you can potentially get approved if a change in employment happened for my wife which requires her to relocate to the U.S. on short notice. I was thinking that maybe her employer could write a statement for her to come back to the U.S. asap and then send this statement to the Frankfurt consulate for a request of DCF.

 

What do you think? Has anyone had experience with DCF?

Edited July 2, 2021 by rowingdan

[USC4SPOUSE 506]

26 minutes ago, rowingdan said:

Thank you for the insightful response!

 

I am not subject to the 2 year requirement. My wife has a fully remote job here in the U.S. and her employer has no problem with her working temporarily from Germany. I am assuming in our case my wife wouldn't have to leave to the U.S. before me to secure a job?

 

Also, we were thinking about to do AOS and try to expedite the work permit. In case the expedite request would be denied, we would switch to consular processing and move to Germany. The only thing is that we only have one more month until my personal funds will run out. Do you think this approach would be realistic? I am also not sure about a refund for the I-485 in case we switch to consular processing. I know this form costs a lot..

@rowingdan The I-485 fee is not refundable but it is cheaper than moving back to Germany. Up to you. USCIS typically approves requests to expedite EAD/AP if you have a job offer. In fact, sometimes they approve them without even asking for evidence. 

It seems to me like it would be cheaper to join forces financially with your wife and pursue AOS. Paying rent for 1 person is no different than paying rent for 2 people, unless I am missing something here. 

[iy2020 118]

36 minutes ago, rowingdan said:

Thank you for the insightful response!

 

I am not subject to the 2 year requirement. My wife has a fully remote job here in the U.S. and her employer has no problem with her working temporarily from Germany. I am assuming in our case my wife wouldn't have to leave to the U.S. before me to secure a job?

 

Also, we were thinking about to do AOS and try to expedite the work permit. In case the expedite request would be denied, we would switch to consular processing and move to Germany. The only thing is that we only have one more month until my personal funds will run out. Do you think this approach would be realistic? I am also not sure about a refund for the I-485 in case we switch to consular processing. I know this form costs a lot..

I think one month is WAY too tight a timeline for your proposed plans, unfortunately. Until very recently, just getting a receipt notice was taking at least a month, not to mention biometrics. And you need biometrics before being able to expedite the EAD.

 

If she can keep her job and legally work in Germany for the 1-2 years consular processing would take, you should be fine.

 

I don't believe USCIS fees are refundable.

[rowingdan 2]

11 minutes ago, USC4SPOUSE said:

@rowingdan The I-485 fee is not refundable but it is cheaper than moving back to Germany. Up to you. USCIS typically approves requests to expedite EAD/AP if you have a job offer. In fact, sometimes they approve them without even asking for evidence. 

It seems to me like it would be cheaper to join forces financially with your wife and pursue AOS. Paying rent for 1 person is no different than paying rent for 2 people, unless I am missing something here. 

I understand your point. In our case however, we could live for a significantly cheaper rent at an apartment in Germany (my parents in Germany own a few apartments). The current rent here in California is only doable because my wife and I are sharing the apartment. She would not be able to carry the costs on her won once my personal funds run out.

Edited July 2, 2021 by rowingdan

[USC4SPOUSE 506]

3 minutes ago, rowingdan said:

I understand your point. In our case however, we could live for a significantly cheaper rent at an apartment in Germany (my parents in Germany own a few apartments). The current rent here in California is only doable because my wife and I are sharing the apartment. She would not be able to carry the costs on her won once my personal funds run out.

Well, then it is a no brainer, mein Freund. Germany is the obvious answer.  

[Boiler 45,516]

You can certainly try for DCF, just do not assume it is a given.

[Chancy 6,241]

*** Moved from AOS Progress Reports to AOS from Work/Student/Tourist Visas -- OP is on J1 visa, asking about the GC process ***