POE while wife is not in US?

[Immy 0]

Hi VJers,

This is my first post on VJ. Hopefully, some one can provide guidance. I got my CR-1 visa stamped from Islamabad in December, 2010. At the time of immigration petition, my wife was living in US. However, as the approval process was taking so long, she moved to Pakistan until I got the visa. Now we are planning to move to US, however, she can't travel due to pregnancy complications.

My IR-1 visa is expiring in June, 2010. I am concerned if I travel to US when she is not there I might get my admission denied at POE. Some people are suggesting that the requirement of spouse being present only applies to DCF cases. Does anyone have any idea here if I can enter US on IR-1 while my wife is still in Pakistan?

Regards,

Immy

[Darnell 8,478]

Many ppl do POE without the spouse.

[Immy 0]

Many ppl do POE without the spouse.

Darnell, thanks for your reply. Yes indeed a lot of people do POE without spouses but the spouse is atleast in the US. My concern is if the immigration officer asks me... how long has it been since you have seen your wife or where is you wife right now? What will I say?

[canadian_wife 1,791]

You'll tell the truth. However, the POE is not an interview. They'll likely check your documents and allow you entrance into the US.

Good luck.

[aurora07 6]

how far along is your wife?

based on my experience as a flight attendant, your wife can still fly until her 8th month given that you have a doctor's certificate giving your wife permission to fly and the pregnancy is normal. things that have to be taken into consideration are: if it's single or multiple pregnancy and also the flight. i'm assuming it's a long haul flight from india. check with your airline.

[Immy 0]

how far along is your wife?

based on my experience as a flight attendant, your wife can still fly until her 8th month given that you have a doctor's certificate giving your wife permission to fly and the pregnancy is normal. things that have to be taken into consideration are: if it's single or multiple pregnancy and also the flight. i'm assuming it's a long haul flight from india. check with your airline.

She is only 6 months now but there is a potential complication in the pregnancy. Hence, the doctor is advising to travel after the delivery. Ideally, I would like to travel by myself now, enter US, and come back after a week. And then move back to US after my wife delivers. I am just concerned that the officer at POE might ask about the physical location of my wife.

You'll tell the truth. However, the POE is not an interview. They'll likely check your documents and allow you entrance into the US.

Good luck.

Canadian_wife thanks for you reply. I see that you recently entered US. Did they ask you any questions about your husband such as where is he right now? How long has it been since you last saw him etc. etc.?

[LIFE'SJOURNEY 970]

Due to the recent activities that have been happening in the US, I expect the SO will get grilled very carefully, as to why is it that he is entering the US without the petitioner being physically present in the USA. I would suggest that you don't take your entrance into the USA on a marriage sponosored visa without your sponosor being physically present in the US as a piece of cake (meainig no problem). I believe you will be questioned extensively upon entering and if you should leave directly after entering, upon re-entering it will trigger a flag on your next entrance if there is a substantial amount of time before you re-enter again.

I am sure the POE's will handle your situation in the manner inwhich they have been given directions.

[Immy 0]

Due to the recent activities that have been happening in the US, I expect the SO will get grilled very carefully, as to why is it that he is entering the US without the petitioner being physically present in the USA. I would suggest that you don't take your entrance into the USA on a marriage sponosored visa without your sponosor being physically present in the US as a piece of cake (meainig no problem). I believe you will be questioned extensively upon entering and if you should leave directly after entering, upon re-entering it will trigger a flag on your next entrance if there is a substantial amount of time before you re-enter again.

I am sure the POE's will handle your situation in the manner inwhich they have been given directions.

Yes exactly, the recent events asked for greater scrutiny especially with my Nationality. I still want to know from some one if there are any legal requirements of the sponsor being physically present? What is your sponsor is away temporarily?

[LIFE'SJOURNEY 970]

Yes exactly, the recent events asked for greater scrutiny especially with my Nationality. I still want to know from some one if there are any legal requirements of the sponsor being physically present? What is your sponsor is away temporarily?

As was stated in previously post, you need to tell them the truth if asked. The POE will follow the directions that are being given to them.

[Bobby+Umit 161]

Yes exactly, the recent events asked for greater scrutiny especially with my Nationality. I still want to know from some one if there are any legal requirements of the sponsor being physically present? What is your sponsor is away temporarily?

There are no legal requirements for the sponsor to be present when you enter the US on that visa.

By virtue of the visa, you have been granted the ability to enter the US, with immigration intent, as long as you comply with the entrance requirements of CBP (answer their questions honestly).

You should have that much of an issue.

BTW - you meant Dec 2009, not Dec 2010 (that would be in the future) - right ? '

I haven't seen any requirements for the sponsor(spouse) to be present upon US POE for a DCF either. A visa is a visa.

[payxibka 10,044]

There are no legal requirements for the sponsor to be present when you enter the US on that visa.

By virtue of the visa, you have been granted the ability to enter the US, with immigration intent, as long as you comply with the entrance requirements of CBP (answer their questions honestly).

You should have that much of an issue.

BTW - you meant Dec 2009, not Dec 2010 (that would be in the future) - right ? '

I haven't seen any requirements for the sponsor(spouse) to be present upon US POE for a DCF either. A visa is a visa.

Might not need to be present in the USA but domicile MUST be established. If the intending immigrant arrives BEFORE the sponsor has established or re-established US domicile the alien is inadmissable. In the OP's situation, if his sponsor wife maintained US domicile then all should be OK. If for some reason she did not then it could be problematic

Portion of TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) discussing domicile.

ii) Determination of domicile . (A) If the sponsor is residing abroad, but only temporarily, the sponsor bears the burden of proving, by a preponderance of the evidence, that the sponsor's domicile (as that term is defined in 8 CFR 213a.1 ) remains in the United States, (more)

(B) If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant's admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the immigration officer or immigration judge must deny the intending immigrant's application for admission or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal intending immigrant's application for admission or adjustment of status. In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the principal intending immigrant's arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph, unless the sponsor is also a permanent resident alien and the sponsor's own application for admission is denied and the sponsor leaves the United States under a removal order or as a result of the sponsor's withdrawal of the application for admission.

[Immy 0]

Might not need to be present in the USA but domicile MUST be established. If the intending immigrant arrives BEFORE the sponsor has established or re-established US domicile the alien is inadmissable. In the OP's situation, if his sponsor wife maintained US domicile then all should be OK. If for some reason she did not then it could be problematic

Portion of TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) discussing domicile.

ii) Determination of domicile . (A) If the sponsor is residing abroad, but only temporarily, the sponsor bears the burden of proving, by a preponderance of the evidence, that the sponsor's domicile (as that term is defined in 8 CFR 213a.1 ) remains in the United States, (more)

(B) If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant's admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the immigration officer or immigration judge must deny the intending immigrant's application for admission or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal intending immigrant's application for admission or adjustment of status. In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the principal intending immigrant's arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph, unless the sponsor is also a permanent resident alien and the sponsor's own application for admission is denied and the sponsor leaves the United States under a removal order or as a result of the sponsor's withdrawal of the application for admission.

Thank you for such a detailed response. I guess this answers the question. So as long as my wife has maintained US domicile, I am fine to re-enter.

The issue now is to gather evidence to show that domicile was maintained. This might be a little tricky, as she has been out of US for almost a year now. Except for the past three months, the whole time she has been out of US, she has never been in a residence status in any country. Even in Pakistan she was on a tourist visa. So I guess the first 9 months are fine. However the last 3 months are tricky. When her tourist visa ran out we got her a residence visa to avoid the hassle of renewing the tourist visa. So I guess I will need to somehow prove that she has still maintained a residence in US even though she spent the last 3 months on a residence visa in Pakistan. Seems difficult. Any ideas on what evidence I can show?

[Bobby+Umit 161]

Might not need to be present in the USA but domicile MUST be established. If the intending immigrant arrives BEFORE the sponsor has established or re-established US domicile the alien is inadmissable. In the OP's situation, if his sponsor wife maintained US domicile then all should be OK. If for some reason she did not then it could be problematic

Portion of TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) discussing domicile.

ii) Determination of domicile . (A) If the sponsor is residing abroad, but only temporarily, the sponsor bears the burden of proving, by a preponderance of the evidence, that the sponsor's domicile (as that term is defined in 8 CFR 213a.1 ) remains in the United States, (more)

(B) If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant's admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the immigration officer or immigration judge must deny the intending immigrant's application for admission or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal intending immigrant's application for admission or adjustment of status. In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the principal intending immigrant's arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph, unless the sponsor is also a permanent resident alien and the sponsor's own application for admission is denied and the sponsor leaves the United States under a removal order or as a result of the sponsor's withdrawal of the application for admission.

Thanks for the info - I agree with you.

Since the 864 must of been accepted for the visa to be given, the sponsor must of proved domicile (or will have it before the II comes to the US).

So that would be the real question.

[canadian_wife 1,791]

Canadian_wife thanks for you reply. I see that you recently entered US. Did they ask you any questions about your husband such as where is he right now? How long has it been since you last saw him etc. etc.?

I entered almost a year ago. There were no questions as to where my husband was, what he was doing, or what his status was in the US.

Good luck.

[pushbrk 12,106]

Thank you for such a detailed response. I guess this answers the question. So as long as my wife has maintained US domicile, I am fine to re-enter.

The issue now is to gather evidence to show that domicile was maintained. This might be a little tricky, as she has been out of US for almost a year now. Except for the past three months, the whole time she has been out of US, she has never been in a residence status in any country. Even in Pakistan she was on a tourist visa. So I guess the first 9 months are fine. However the last 3 months are tricky. When her tourist visa ran out we got her a residence visa to avoid the hassle of renewing the tourist visa. So I guess I will need to somehow prove that she has still maintained a residence in US even though she spent the last 3 months on a residence visa in Pakistan. Seems difficult. Any ideas on what evidence I can show?

You provided your wife's current address on your DS 230 and indicated that as the address to mail the green card. If all that is still valid, I doubt there will be any questions about the present physical location of your wife. She is not required to travel with you. In most immigrant visa cases the USC spouse is waiting for the immigrant, not traveling with them. If asked, be honest.

At this point, my concern would be the delivery of the green card and how you're going to get it in your own hands.