Going to the US while waiting on Green Card? - Complicated situation.

[LeonieJensen 0]

Hello, 

 

I'm a German citizen married to an American citizen. My husband is legally residing in Germany and we got married here, we have, however, decided to move back to the US for various reasons. 

Now, we've tried to go through the normal process but it's more than just confusing and complicated. 

 

For one, the I-130 is asking for a residence and gainful employment IN the US. Which seems to be impossible to achieve, as we are both living in Germany. My husband, could, of course, apply for a job from Germany, however I seriously doubt anyone would accept him, as a Green Card Process can take anywhere from 6 months to 2 years to be completed and thus, my husband wouldn't even know himself when he could start said job. 

Now, you may be thinking, why doesn't my husband just fly back on his own, start working in the US and file for a Green Card from there while I stay in Germany?

This is where it gets even more complicated. I suffer from a long list of mental health issues (Inlcuding Depression, Bipolar Disorder and a Panic Disorder that is so severe that I can't leave the house on my own) and leaving me on my own is NOT something anyone should do. Furthermore, I would have to stay with my mother, who ist emotionally and mentally abusive, and has driven me to the brink of suicide multiple times before. 

We've seemingly tried everything. We've also asked the Frankfurt US Embassy for DCF to speed up the process, however, for whatever reason, they simply don't do that. I repeat, as multiple people have suggested we just do DCF, we cannot do that. They also no longer answer phone calls, they just put you through to an automated voice response that says that "you can find answers to all of your questions at our homepage" which isn't the case. Sending an E-Mail will also give an automated response.

Now we've been thinking. I've learned that flying to the US on an ESTA and then filing for Adjustment of Status without applying for a Green Card first may be considered fraud and may result in me being banned from the country. (If that's not the case anymore or there's a loophole, please tell me.)

The only other thing that comes to my mind would be the following: My husband and I fly to the US, me on an ESTA. We then file for a Green Crad whilst in the US. As soon as my ESTA runs out, I fly back to Germany for a week or so, file for another ESTA and fly back to the US, and we keep doing that until my Green Card is approved and I can file for AOS. Of course this would be expensive considering the plane tickets, but it would be managable if my husband had gainful employment and we booked the tickets far enough in advance. However, I've heard that I may not be able to enter the US while my Green Card is pending. I've also heard contradicting statements to that. I've also heard about something called a "Dual Intent Visa" which, if I understood correctly, would allow me to stay with my husband in the US as a "tourist" until my Green Card is approved, without having to go back. I've heard so many things from so many different sources and I would like to know which of these things are actually true, because the Dual Intent Visa sounds like a dream come true right now. 

I know this is a lot to read, but if someone could help me out, I'd be very thankful.

EDIT: In regards to my mental health issues, in case anyone is concerned, my husband and I spent one month in America last year, and during the time I was there my mental health improved immensely, which is one of the many reasons why we decided to move to the US.

Edited January 21, 2017 by LeonieJensen

[geowrian 22,335]

2 minutes ago, LeonieJensen said:

Now we've been thinking. I've learned that flying to the US on an ESTA and then filing for Adjustment of Status without applying for a Green Card first may be considered fraud and may result in me being banned from the country. (If that's not the case anymore or there's a loophole, please tell me.)

The only other thing that comes to my mind would be the following: My husband and I fly to the US, me on an ESTA. We then file for a Green Crad whilst in the US. As soon as my ESTA runs out, I fly back to Germany for a week or so, file for another ESTA and fly back to the US, and we keep doing that until my Green Card is approved and I can file for AOS. Of course this would be expensive considering the plane tickets, but it would be managable if my husband had gainful employment and we booked the tickets far enough in advance. However, I've heard that I may not be able to enter the US while my Green Card is pending. I've also heard contradicting statements to that. I've also heard about something called a "Dual Intent Visa" which, if I understood correctly, would allow me to stay with my husband in the US as a "tourist" until my Green Card is approved, without having to go back. I've heard so many things from so many different sources and I would like to know which of these things are actually true, because the Dual Intent Visa sounds like a dream come true right now.

You are correct. What you are suggesting in red is visa fraud. There is no "may be considered" - entering the US on a non-immigrant visa/status with the intention to file AOS is clear visa fraud. Discussion or condoning of this or other illegal activities are not permitted on VJ according to the TOS. Second, filing for AOS *is* the application to get a green card. You cannot apply for a green card first....AOS it the application to become an LPR - earning the green card as proof of LPR status.

 

Your backup plan also won't work. First, it again violates the rule noted above (you cannot enter with intent to file AOS without an visa that permit immigrant intent). Second, once you file for AOS (to get the green card), you cannot leave the country without an approved Advanced Parole document. AP should usually be filed with AOS (no extra fee), and takes about 90 days to process (from the date of filing). Leaving the US without an approved AP is an abandonment of your AOS application. Once you file for AOS, you won't be able to use ESTA, either.

 

Dual intent visas are fine, but a tourist visa is not one of them. Since you are already married, K-1 does not apply to you either. Employment-based visas can work if you possess a necessary skill, but this is a very long process. Given that you are married to a USC, there will be scrutiny at POE no matter how you try to enter the US...for fear of committing visa fraud as noted above. It's certainly not impossible, but if it was simple then many, many married couples would do that instead of waiting for a CR-1/IR-1 visa to see their spouse.

 

What your husband needs to do is establish/re-establish domicile in the US. Information on options to do this are located at this link:

http://lawandborder.com/issues-for-u-s-citizens-expats-in-filing-the-form-i-130-immigrant-petition-for-alien-relative/

 

Once he can demonstrate domicile, you can apply for a CR-1/IR-1 visa using form I-130. This process takes about 10-12 months, but plan for it to take 18 months for some types of cases. Once you obtain the visa, you can enter the US with LPR status already. The green card will arrive shortly afterwards.

 

Good luck! Sorry for not having good news for you, but it is what it is. There is no "quick" or "simple" way when it comes to immigration. Well, DCF is pretty close (weeks to a couple months), but as you noted, that's route isn't available. Maybe another member here can try to help with Germany's DCF process or clarify the issue there.

[LeonieJensen 0]

13 minutes ago, geowrian said:

Once he can demonstrate domicile, you can apply for a CR-1/IR-1 visa using form I-130. This process takes about 10-12 months, but plan for it to take 18 months for some types of cases. Once you obtain the visa, you can enter the US with LPR status already. The green card will arrive shortly afterwards.

Could we technically get a sponsor with a US domicile? For example, I'm reasonably sure his uncle would be willing to let us stay with him for a few weeks.

[LeonieJensen 0]

31 minutes ago, geowrian said:

Your backup plan also won't work. First, it again violates the rule noted above (you cannot enter with intent to file AOS without an visa that permit immigrant intent). Second, once you file for AOS (to get the green card), you cannot leave the country without an approved Advanced Parole document. AP should usually be filed with AOS (no extra fee), and takes about 90 days to process (from the date of filing). Leaving the US without an approved AP is an abandonment of your AOS application. Once you file for AOS, you won't be able to use ESTA, either.

But could I go to the US on an ESTA? Not with the intent to stay. If we started filing for the Green Card now and it took about a year (which, honestly, breaks my heart as I've heard three months is the minimum, not ten) and decided to visit his family in, say, June (we would really like to celebrate our first wedding anniversay, which is June 11th, with his family) could we do that?

And if we can, what happens if my Green Card is approved while we're visiting? Would I have to go back to Germany first or could I stay?

Edited January 21, 2017 by LeonieJensen

[geowrian 22,335]

36 minutes ago, LeonieJensen said:

Could we technically get a sponsor with a US domicile? For example, I'm reasonably sure his uncle would be willing to let us stay with him for a few weeks.

I don't think you quite understand what "domicile" means. It's related to residence, but is not the same. Check out the link I sent...it does a decent job explaining what is required.

 

In short, no. Your spouse would be the one sponsoring your I-130 application, and must submit an affidavit of support (even if he found a joint sponsor) to cover you in case you became a public charge. The affidavit requires US domicile. Also, a requirement for domicile is to remain there for the foreseeable future. A couple weeks does not prove this. From USCIS's perspective, what would stop him from leaving the US and living abroad again? That's essentially the hurdle he needs to prove to them. Being married to somebody who intends to immigrate there is good evidence in itself, but having other links to stay int he US helps his case. See the link.

 

20 minutes ago, LeonieJensen said:

But could I go to the US on an ESTA? Not with the intent to stay. If we started filing for the Green Card now and it took about a year (which, honestly, breaks my heart as I've heard three months is the minimum, not ten) and decided to visit his family in, say, June (we would really like to celebrate our first wedding anniversay, which is June 11th, with his family) could we do that?

And if we can, what happens if my Green Card is approved while we're visiting? Would I have to go back to Germany first or could I stay?

Yes, you may enter via ESTA with the intent to return home. That said, and as I noted above, proving the intent to return home may be difficult for the spouse of a USC. This goes doubly once the I-130 is filed since that implies an immigrant intent. To clarify, you would be filing for a CR-1/IR-1 visa - not a green card. The green card is automatically obtained after entry for those visas, but you have LPR immediately upon admittance to the US. Sorry again for the bad news, but a CR-1/IR-1 takes roughly 10 months on average currently. I think the 3 months may have been the DCF route? Albeit 3 months is a little on the high side. It's certainly possible to get approval in less than 10 months, but the average is currently roughly 10 months. See here: http://www.visajourney.com/content/ir1cr1historical

Edited January 21, 2017 by geowrian

[Hypnos 6,576]

It's unclear what's preventing you from filing DCF in Frankfurt. 

 

This would be, by far, your best, fastest, and easiest way to proceed. 

 

https://de.usembassy.gov/visas/uscis-frankfurt/

 

"Green Card - Family Petitions I-130"

 

File by mail. 

Edited January 21, 2017 by Hypnos

[Lenchick 133]

1 hour ago, LeonieJensen said:

Hello, 

 

I'm a German citizen married to an American citizen. My husband is legally residing in Germany and we got married here, we have, however, decided to move back to the US for various reasons. 

Now, we've tried to go through the normal process but it's more than just confusing and complicated. 

 

For one, the I-130 is asking for a residence and gainful employment IN the US. Which seems to be impossible to achieve, as we are both living in Germany. My husband, could, of course, apply for a job from Germany, however I seriously doubt anyone would accept him, as a Green Card Process can take anywhere from 6 months to 2 years to be completed and thus, my husband wouldn't even know himself when he could start said job. 

Now, you may be thinking, why doesn't my husband just fly back on his own, start working in the US and file for a Green Card from there while I stay in Germany?

This is where it gets even more complicated. I suffer from a long list of mental health issues (Inlcuding Depression, Bipolar Disorder and a Panic Disorder that is so severe that I can't leave the house on my own) and leaving me on my own is NOT something anyone should do. Furthermore, I would have to stay with my mother, who ist emotionally and mentally abusive, and has driven me to the brink of suicide multiple times before. 

We've seemingly tried everything. We've also asked the Frankfurt US Embassy for DCF to speed up the process, however, for whatever reason, they simply don't do that. I repeat, as multiple people have suggested we just do DCF, we cannot do that. They also no longer answer phone calls, they just put you through to an automated voice response that says that "you can find answers to all of your questions at our homepage" which isn't the case. Sending an E-Mail will also give an automated response.

Now we've been thinking. I've learned that flying to the US on an ESTA and then filing for Adjustment of Status without applying for a Green Card first may be considered fraud and may result in me being banned from the country. (If that's not the case anymore or there's a loophole, please tell me.)

The only other thing that comes to my mind would be the following: My husband and I fly to the US, me on an ESTA. We then file for a Green Crad whilst in the US. As soon as my ESTA runs out, I fly back to Germany for a week or so, file for another ESTA and fly back to the US, and we keep doing that until my Green Card is approved and I can file for AOS. Of course this would be expensive considering the plane tickets, but it would be managable if my husband had gainful employment and we booked the tickets far enough in advance. However, I've heard that I may not be able to enter the US while my Green Card is pending. I've also heard contradicting statements to that. I've also heard about something called a "Dual Intent Visa" which, if I understood correctly, would allow me to stay with my husband in the US as a "tourist" until my Green Card is approved, without having to go back. I've heard so many things from so many different sources and I would like to know which of these things are actually true, because the Dual Intent Visa sounds like a dream come true right now. 

I know this is a lot to read, but if someone could help me out, I'd be very thankful.

EDIT: In regards to my mental health issues, in case anyone is concerned, my husband and I spent one month in America last year, and during the time I was there my mental health improved immensely, which is one of the many reasons why we decided to move to the US.

 

15 minutes ago, Hypnos said:

It's unclear what's preventing you from filing DCF in Frankfurt. 

 

This would be, by far, your best, fastest, and easiest way to proceed. 

 

https://de.usembassy.gov/visas/uscis-frankfurt/

 

"Green Card - Family Petitions I-130"

 

File by mail. 

Yes, I have the same question what is in your way to file through DCF in Frankfurt. There is a huge thread here from the people who did it. Some Americans had lived in Germany with their German wives forever and then decided to move to the states. They all got processed through DCF.

[LeonieJensen 0]

1 minute ago, Lenchick said:

 

Yes, I have the same question what is in your way to file through DCF in Frankfurt. There is a huge thread here from the people who did it. Some Americans had lived in Germany with their German wives forever and then decided to move to the states. They all got processed through DCF.

We have called them and explicitly asked for DCF. They said they don't do that?

[Lenchick 133]

4 minutes ago, LeonieJensen said:

We have called them and explicitly asked for DCF. They said they don't do that?

yes, they still do it. If you called and asked exactly to expedite it, they might not do it. You don't need expedite it in Frankfurt. They do it fast anyway. But you can still file there if you meet certain requirements. If your husband is legally in Germany and has German residence permit. He can file. Let me look at their website more and I will get back to you. What was their reason to say NO?

 

https://de.usembassy.gov/visas/family-immigration/how-to-apply/

[Lenchick 133]

9 minutes ago, LeonieJensen said:

We have called them and explicitly asked for DCF. They said they don't do that?

here what it says at their website

 

"If the U.S. citizen sponsor is resident in Germany, he/she may file the petition with the Frankfurt USCIS office. For further information please see the USCIS Frankfurt website. "

 

Also, I read some time ago they don't do it in person any more. But it is not a problem. You can send it by mail. Before husbands could go to Frankfurt and submit i-130 in person.

 

READ HERE:

https://de.usembassy.gov/visas/uscis-frankfurt/

I-130 Petition For Alien Relative

The U.S. Citizenship and Immigration Services at the U.S. Consulate in Frankfurt accepts I-130 petitions by mail from U.S. citizens who reside in Germany. U.S. citizens whose principal residence is not in Germany, and/or are abroad temporarily as a visitor or on business, must file the petition in the United States.

If you are not eligible to file in Frankfurt, you should file the petition with the Chicago Lockbox. Lawful Permanent Residents must file the petition in the United States.

Evidence Of Residence

We require evidence of petitioner’s residence in Germany, such as a photocopy of a Certificate of Residence, a Foreigners’ Permit to Stay, or a copy of the petitioner’s orders if he/she is a member of the U.S. military stationed in Germany.

[LeonieJensen 0]

8 minutes ago, Lenchick said:

yes, they still do it. If you called and asked exactly to expedite it, they might not do it. You don't need expedite it in Frankfurt. They do it fast anyway. But you can still file there if you meet certain requirements. If your husband is legally in Germany and has German residence permit. He can file. Let me look at their website more and I will get back to you. What was their reason to say NO?

 

https://de.usembassy.gov/visas/family-immigration/how-to-apply/

I don't think there was a reason. According to my husband, he called, told them he was an American residing in Germany and asked if he could file for his German's wife's Green Card via DCF. They just flat out said no and that they don't do DCF.

Edited January 21, 2017 by LeonieJensen

[Lenchick 133]

Just now, LeonieJensen said:

I don't think there was a reason. According to my husband, he called, told them he was an American residing in America and asked if he could file for his German's wife via DCF. They just flat out said no and that they don't do DCF.

Why did he say he resided in the states if from your words he is legally residing in Germany. Thats why they said no.

[LeonieJensen 0]

2 minutes ago, Lenchick said:

Also, I read some time ago they don't do it in person any more. But it is not a problem. You can send it by mail. Before husbands could go to Frankfurt and submit i-130 in person.

OOOOOHHHHHH. THAT makes a LOT of sense. Because I distinctly remember my husband asking if he could file in person with the consulate.

But is it still DCF if it's not in person? I thought that was the whole point of DCF...

[LeonieJensen 0]

1 minute ago, Lenchick said:

Why did he say he resided in the states if from your words he is legally residing in Germany. Thats why they said no.

I'm so sorry, I typed that wrong. He told them he was residing in Germany.

[geowrian 22,335]

1 minute ago, LeonieJensen said:

OOOOOHHHHHH. THAT makes a LOT of sense. Because I distinctly remember my husband asking if he could file in person with the consulate.

But is it still DCF if it's not in person? I thought that was the whole point of DCF...

Yes, it is still DCF. =___= haha  They may also have been confused by saying you are filing for a green card. You're filing for an spousal immigrant visa.