Filing I-129F with a non-immigrant intent?

[duyen&sean 0]

Dear all,

My situation could very easily progress as follows:

Imagine someone files the usual non-immigrant I-129F petition for their spouse, whom they later marry in the US in accordance to the conditions of the K-1 visa. In addition to understand each other's native languages, both husband and wife speak a common (third) foreign language; both husband and wife have strong cross-cultural ties to each other's families and native countries. The foreign spouse's country of citizenship does not recognize dual citizenship, and renunciation is treated with extreme political and legal disfavor, causing loss of rights of entry and residence. Shortly before their wedding in the US, the US citizen spouse is randomly admitted to a somewhat prestigious doctoral program in a country speaking their common foreign language, taking at least five years to complete. Both consider this to be an excellent chance to improve their knowledge of this common third culture and its language.

In light of this new event, neither has any immediate intent of making the US their permanent place of residence, and for the time being, their intentions towards US residency are best described as temporary. However, since the US embassy in the foreign spouse's native land has one of the highest non-immigrant visa denial rates and no visa waiver program, and since the foreign spouse is married to a US citizen, it seems highly unlikely that the foriegn spouse could even consider getting a non-immigrant visa.

It seems that the foreign spouse is not an intending immigrant; yet neither is she an intending non-immigrant.

Well, no matter: assume they just change their "intention" and immigrate. So what then? Assume they file and are approved for an AOS, and then begin to live in this common foreign country while he is in school. They come back once a year, let her mail come to his parents' house, file US taxes, etc. Neither has any official permanent residence status in this foreign country or intention to immigrate there; they're on student and work visas.

Could immigration still say that she's abandoned her US residence? I've heard that, if you don't go back within six months, you're still screwed. Does anyone know about this sort of thing? My understanding of the problem here is this: it is so difficult to get a non-immigrant visa from certain countries that people who do not intend to live in the US forever get stuck applying for immigrant visas that are conditioned on maintaining a (perhaps falsely) presumed immigrant status.

I look forward to responses!

[lucyrich 19]

Sounds like you understand most of the issues.

There's no visa that's designed for the spouse of a US Citizen when the spouse doesn't really want to immigrate, and yet can't qualify for a tourist visa because of difficulty proving non-immigrant intent. You're in an area not well served by immigration law, sorry.

One choice is to get a CR-1 or K-3 visa, get the Green Card, and attempt to make it look like your primary residence is in the US. You point out how that may be difficult if the fact is you're spending most of your time away. But still, look into the information regarding reentry permits and returning resident visas.

The other strategy is to get a CR-1 or K-3 and use it as a "tourist visa", abandoning status when you leave the US, soon after entry. You might even enter on a K-3 and not even bother filing adjustment of status papers, but instead leave the US before the K-3 status expires.

If proving that you're maintaining US residence becomes too hard, there's no harm in abandoning status, other than the fact that it was a lot of time and expense for what amounts to a temporary visit. Simply apply for a new visa (perhaps via DCF?) when it comes time to live in the US permanently. If you've already been through the process once before, the second time should be easier, if anything. They won't hold it against you that you applied once and abandoned status, especially when you explain that the reason you abandoned status is so that you could live with your USC spouse, who had an opportunity in another country.

This approach may help you avoid the whole removal of conditions process, since by the time you apply for a new visa, you'll probably have been married more than two years.