Sponsoring a New Spouse (merged topics)

[SteveInBostonI130 3,483]

6 hours ago, AmeriCanadian91 said:

I met my first husband [Canadian Citizen] online in 2013. In March 2015, he came to stay with me in the US. We hadn't necessarily planned on him staying, we were just taking it one step at a time and seeing if our relationship would work after living together, and didn't think far enough ahead as to how he'd stay if things worked out. We got married and applied for AOS 4 months later and were approved in January 2016. In June 2017, however, we decided to move to Canada to live near his family, so I got my Canadian PR. As such, we never applied to remove conditions from his green card, nor did we surrender his green card or any of that. Honestly, we didn't really know if we had to do anything, since we didn't plan on moving back to the US. We eventually separated in June 2019 and subsequently divorced in February 2021 (we had to be separated at least a year to apply for divorce, and the divorce process took a looong time due to the pandemic).

 

I met my current spouse [UK/Australian Citizen] in November 2019. We moved in together (in Canada) November 2020 and got married August 2021. I received a job offer in California, so we moved to the US a month later. We attempted to apply for Direct Consular Filing, but it took a while to receive a response. My spouse came to the US as a visitor so he could help me move and settle into the new home, and since it wouldn't be financially viable for us to now pay for 2 homes, cars, etc. We expected to be approved for DCF, so we planned for him to leave the country before getting his green card. He didn't plan to stay and adjust status (we didn't even know he could do that, given the situation).

 

We soon found out that the moment I had left Canada, we were no longer eligible for DCF (which is a bummer because I initially contacted the consulate 3 months earlier to start the process!). Now we are preparing to apply for Adjustment of Status. From what I'm told, he should be ok to do that because he didn't enter the US with the intention of staying and adjusting status (and our emails with the Consulate are proof of that). However, I'm concerned that we may run into issues because I previously sponsored a spouse. We have plenty of proof of a bona fide marriage, and we were living together almost a year before we even got married, but should I be worried? Any advice on how to confront this possible red flag, such as attaching a letter explaining everything, like above? Also, is there something I'm supposed to file to remove my ex as my beneficiary? Meaning, am I still technically his sponsor, or is that all settled since he lives in Canada? I read somewhere that you still need to count them as part of your household on your I-864 and that you'd still be financially responsible for them, but that was for someone whose ex still lived in the US and didn't remove conditions. Does that apply to me?

 

 

Hello,

 

I see 2 red flags based on this new information.  The first is the previous AOS.  That first one seems proper - your boyfriend visited, you realized you wanted to be married, you married and he adjusted status.  This second time, you are aware of the AOS process and the limitations - mainly that it is fraudulent to enter the US with intent to adjust status, rather than it being something unforeseen.   That leads to the second red flag - your husband "visiting" you to help you move, yet you also relinquished your home and cars (?) in Canada.  So, in effect, he actually moved to the US with you with nothing in Canada to return to.

 

I am not sure what he stated at the POE.  I believe this time USCIS will take a hard look at this second AOS and investigate if your husband misrepresented himself when he entered.  

 

With your previous experience with immigration, it seems to be a hard sell to state that you didn't know that DCF cannot be done if you have already moved to the US.  

 

This is just my observation.  I may be incorrect and there may be no issues with your AOS.  I welcome others to chime in with their views.  

 

[HRQX 4,145]

3 minutes ago, SteveInBostonI130 said:

I believe this time USCIS will take a hard look at this second AOS and investigate if your husband misrepresented himself when he entered.

Per the BIA's precedent decisions in Matter of Battista and Matter of Cavazos intent is not determined at the AOS interview for IR cases.

[Redro 4,611]

On 10/16/2021 at 1:38 PM, SteveInBostonI130 said:

 

Hello,

 

I see 2 red flags based on this new information.  The first is the previous AOS.  That first one seems proper - your boyfriend visited, you realized you wanted to be married, you married and he adjusted status.  This second time, you are aware of the AOS process and the limitations - mainly that it is fraudulent to enter the US with intent to adjust status, rather than it being something unforeseen.   That leads to the second red flag - your husband "visiting" you to help you move, yet you also relinquished your home and cars (?) in Canada.  So, in effect, he actually moved to the US with you with nothing in Canada to return to.

 

I am not sure what he stated at the POE.  I believe this time USCIS will take a hard look at this second AOS and investigate if your husband misrepresented himself when he entered.  

 

With your previous experience with immigration, it seems to be a hard sell to state that you didn't know that DCF cannot be done if you have already moved to the US.  

 

This is just my observation.  I may be incorrect and there may be no issues with your AOS.  I welcome others to chime in with their views.  

 

The marriage might be looked at a little more closely as OP is petitioning her second foreign spouse. That might slow down the process, but if it's a bona fide relationship I don't think they'll have an issue acquiring the visa. And work authorization usually happens before the interview, so they'll be able to live a fairly normal life. 

[AmeriCanadian91 3]

On 10/15/2021 at 9:38 PM, SteveInBostonI130 said:

 

Hello,

 

I see 2 red flags based on this new information.  The first is the previous AOS.  That first one seems proper - your boyfriend visited, you realized you wanted to be married, you married and he adjusted status.  This second time, you are aware of the AOS process and the limitations - mainly that it is fraudulent to enter the US with intent to adjust status, rather than it being something unforeseen.   That leads to the second red flag - your husband "visiting" you to help you move, yet you also relinquished your home and cars (?) in Canada.  So, in effect, he actually moved to the US with you with nothing in Canada to return to.

 

I am not sure what he stated at the POE.  I believe this time USCIS will take a hard look at this second AOS and investigate if your husband misrepresented himself when he entered.  

 

With your previous experience with immigration, it seems to be a hard sell to state that you didn't know that DCF cannot be done if you have already moved to the US.  

 

This is just my observation.  I may be incorrect and there may be no issues with your AOS.  I welcome others to chime in with their views.  

 

Thanks for pointing that out, that's why I'm worried and want to proactively explain my situation. Is there a form where I can spell everything out, to show that I'm not doing anything fraudulently?

 

For my first marriage, nothing was planned, we just decided to get married and found a site (RapidVisa) to help us stay together. We just did what they advised and never really knew too much about the process. Since then, I've applied for Canadian PR, on my own. After meeting my second husband (who's familiar with immigration himself, as he was a UK citizen who applied for Australian PR/Citizenship), we navigated Canadian immigration again, this time via a work permit (no sponsorship on my end). When we decided to move back to the US, we did a lot of research and began the process for DCF. We were confident that this would work and I researched it a lot. I found that the Montreal Consulate is usually really difficult to get approval because they need concrete proof of the US Citizen returning to the US. Someone on this forum literally said "you practically have to be LIVING in the US already for it to be sufficient proof." I took that to mean that it would be better if I moved to the US. I had applied for DCF back in June, sent the requested documents, and followed up several times when I didn't receive a response. It wasn't until after I had moved that I tried sending a brand new email to the Consulate, which is when I realized that their email requesting info stated "Change the subject line to XXX when you reply to this email." So essentially, I wasn't able to get DCF approval all because I never changed the email subject line! I didn't know that being in California would disqualify me, so my spouse and I were back to square 1.

 

As for my spouse's intent entering the US, we were sure we'd qualify for DCF, but knew that it could take 4+ months. His visitor status only lasts 90 days, so we figured he'd have to go stay with family for a bit in the UK if he didn't get his green card by then. Our plan, however, was always that he'd leave the country before his 90 days are up. Worst-case scenario, we thought we'd have to do "normal" processing where he waits outside the country during the process. I thought he didn't qualify for AOS because I assumed that would only be for people who never intended to immigrate and just so happened to get married while in the US (as was my case previously). So it was never an option to us. 

 

As far as leaving Canada, my spouse only moved there to be with me. I earned enough money to where he could get a minimum wage job for the time being (he works in the airline industry and couldn't get any jobs in that field, obviously), but he wouldn't be able to afford living there on his own and I can't afford 2 rents. As far as the car goes, we only needed 1 in Canada. I was financing a car there, so I wouldn't be able to import it to the US, and we wouldn't be able to keep making payments AND get another car. So we sold it and I was able to buy a cheap, used car with the "profit". We needed a car that was capable of towing a large trailer anyway (since a Uhaul truck would've ran us $5k), so that worked for us. That's why we relinquished our home and car (he never had a car in the first place).

 

Side note: our car broke down a day after we arrived to California and I had to get a rental, before buying another car in this crappy market. Sooo, we've essentially spent 10's of thousands of dollars in the past month on this move and would struggle having to move him into a new place in the UK or flying him to Australia. He also would've happily moved back to Australia, where he'd be able to stay with family indefinitely, as opposed to UK where he'd struggle to make ends meet right now. However, Australia has been closed and the only way he'd be able to get back would be to pay $10k for a flight and $3k for quarantine hotel. So that's impossible too! (the government really didn't want travel in/out of Australia).

 

Anyway, once the DCF fell through, we began looking into "normal" consular processing. It was a terrible option for us, financially, but we thought we had no other choice. My husband is a law-abiding man and would never want to unlawfully overstay his visa (despite knowing several friends that are illegal or have illegal family). The California Governor even banned deportation at the moment, I believe. But it wasn't until someone on Reddit pointed out to us that we should do AOS that we looked into it. Again, I assumed it wouldn't apply because he always had the intent to immigrate, but I found out that that's not what makes it fraudulent. Only if he intended to adjust status would that count as illegal intent or lying to CBP (and apparently intent isn't considered with the spouse of a US Citizen anyway?). Since my husband truly just came here to help me move, he never lied. I mean, I had to drive 3,000 miles with 2 crazy huskies in the back of my car, while towing a massive trailer with my old, crappy Jeep. The drive alone warranted much-needed help from him. Not to mention moving furniture into the new place and helping the dogs transition when I went to work, as I couldn't afford to pay someone for all this. It just made sense financially and logistically for him to leave Canada and stay with me until he had to leave to do medical/interview stuff.

 

TLDR: We never intended to adjust status and have proof of his intent to leave the country (correspondence with Montreal Consulate, flight booked to London, letter from family that they were expecting him to stay with them temporarily). Now that things have changed and we've learned that he's legally allowed to apply for AOS, it makes the most sense, financially, for him to stay here.

[arken 4,197]

7 minutes ago, AmeriCanadian91 said:

Thanks for pointing that out, that's why I'm worried and want to proactively explain my situation. Is there a form where I can spell everything out,

You are worrying for no reason. Just go with AOS full package and you are good. Trying to detail/explain such stuffs will only make your case doubtful. Don't include anything that's not required or create more confusion.

[AmeriCanadian91 3]

12 minutes ago, arken said:

You are worrying for no reason. Just go with AOS full package and you are good. Trying to detail/explain such stuffs will only make your case doubtful. Don't include anything that's not required or create more confusion.

So I don't need to explain how my spouse had no intent to adjust? Could they deny our application if they sense fraud, or do they need to give us a chance to explain if it comes to that?

[HRQX 4,145]

37 minutes ago, AmeriCanadian91 said:

The California Governor even banned deportation at the moment, I believe.

Governors do not have that power. Only DHS (i.e. ICE) and DOJ (i.e. EOIR) manage deportation decisions.

 

What governors could do (subject to respective state laws) is to pardon (or commutate, etc.) convicts of state charges: https://cis.org/Arthur/California-Governor-Newsom-Issues-22-Pardons

[AmeriCanadian91 3]

11 minutes ago, HRQX said:

Governors do not have that power. Only DHS (i.e. ICE) and DOJ (i.e. EOIR) manage deportation decisions.

 

What governors could do (subject to respective state laws) is to pardon (or commutate, etc.) convicts of state charges: https://cis.org/Arthur/California-Governor-Newsom-Issues-22-Pardons

Oh, I see. In any case, we weren't planning on overstaying his visa anyway. We'll submit our AOS package before then. And to clarify, the 90 day rule doesn't apply to us, correct? So if we try to adjust his status within 90 days of entering, he won't be penalized because I'm a US Citizen?

[Boiler 46,000]

I remember reading your previous posts about DCF and thinking then you would go for the VWP Express.

 

90 day is a DoS rule not USCIS.

[HRQX 4,145]

17 minutes ago, AmeriCanadian91 said:

And to clarify, the 90 day rule doesn't apply to us, correct?

There is no "90 day rule" for Adjustment of Status process: https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

Technical Update - Removing References to the U.S. Department of State’s 90-Day Rule

July 16, 2021

This technical update to Volume 8 removes all references to the U.S. Department of State’s 90-day rule.

[AmeriCanadian91 3]

12 minutes ago, Boiler said:

I remember reading your previous posts about DCF and thinking then you would go for the VWP Express.

 

90 day is a DoS rule not USCIS.

What's the VWP Express?

[arken 4,197]

1 hour ago, AmeriCanadian91 said:

So I don't need to explain how my spouse had no intent to adjust? Could they deny our application if they sense fraud, or do they need to give us a chance to explain if it comes to that?

Yes you don't need to explain. If you explain it, it may be perceived in a negative way.

 

They will deny if they see the evidence of fraud but not just sensing fraud. One example of such evidence could be:

1. You two chatting about him coming over to live with you and adjust status and you unknowingly including such conversation as a part of bonafide relationship.

 

Edited October 19, 2021 by arken

[AmeriCanadian91 3]

17 minutes ago, arken said:

Yes you don't need to explain. If you explain it, it may be perceived in a negative way.

 

They will deny if they see the evidence of fraud but not just sensing fraud. One example of such evidence could be:

1. You two chatting about him coming over to live with you and adjust status and you unknowingly including such conversation as a part of bonafide relationship.

 

Thanks, that clarifies things and makes it easier for us! 

[AmeriCanadian91 3]

Do I have to do anything with regards to my ex-husband? As in, was I supposed to file something saying we won't be residing in the US after we moved, or that I'm no longer supporting him after we divorced? Will I need to add him to my household size for the financial sponsor affidavit or anything else? Since he never removed conditions on his green card, is his PR essentially revoked, meaning I wouldn't have to do anything in addition for my current spousal application?

[Boiler 46,000]

If you can evidence he left the USA then he is no longer your financial responsibility under the I 864.