Unique case

[dalyan 0]

Hello everyone. Obviously everyone's case is unique, but I had a couple of questions that I was unable to find an answer to on the official U.S. government websites. Thanks in advance for the help.

I am an American citizen whose residency has been Turkey for the past couple of years. I married my Swiss husband in Switzerland in April 2010. Previously we had lived together in Switzerland and we have proof of that relationship going back 4 years. However, I moved to Turkey to do a Master's in 2008 until now. His residency has remained in Switzerland even though he came back and forth to visit me in Turkey.

When we attempted to start the process of coming to the U.S. (I am starting a PhD program in fall 2010), we realized that we both need to be residents in the country we are filing in! I'm not a resident in Switzerland and he is not a resident in Turkey, so we decided to file in the U.S.

What I'm wondering is the following:

1. Can he enter with me on a 90-day tourist visa waiver program (Swiss don't need a visa to enter the U.S.) and apply to change his status there? It says on the website that you can as long as you enter the country legally but we're not sure if that includes those who come in with tourist status, even if we have been married.

2. About how long does it take to get the legal resident status, i.e. about how long does it take before he can work? He wants to start a business and has a degree of capital, does that help in any way?

Thanks for the help.

[Kukolka 8]

1. No, because he would be coming to the US with intent to immigrate. AOS by a tourist is only legal if they did not have intent to immigrate when they entered the US.

2. You would be petitioning for him to come on a CR-1 visa, because you've been married less than 2 years and because the K-3 now gets closed and the CR-1 is processed instead. On the CR-1, he will have LPR status as soon as he enters the country, and will be able to work. That he has capital does not affect it one way or the other, as he would be entering on a family-based immigrant visa.

[Christi85 86]

1. He can come to visit the US, but he cannot apply to change status there. That would only be possible if you were in the States, he was visiting without the intent to marry and then you got married on a spontaneous decision while he was over there. I know it sounds unfair that you can't do it, but it can get very complicated for those who do it as they have to prove that they didn't enter the country with the intention to marry (and how do you prove a negative??). Mind you that if you have a marriage-based visa pending when he visits, he may be denied entry on suspicion of immigration intent. So he should make sure he has strong proof that he intends to return to Switzerland (i.e. return ticket, proof of work, proof of apartment lease or equivalent, bank accounts showing a good balance etc.).

2. If applying in the US, it should take 8-10 months for him to get his CR-1 visa from start to finish (provided that everything is done correctly). Once he gets his CR-1 visa on his passport, he has 6 months to travel to the US on that. Once he enters the US, his details are taken from the Immigration Officers and his entry is registered on their system. That will prompt the production of the green card itself, which should reach him in the mail a few weeks after his entry. But as soon as he is in the country he is able to work, as he'll get a stamp on his CR-1 visa which serves as the provisional green card until the real one arrives in the mail. In order to work/set up a business he'll also need a SSN, so he should make sure he ticks the relevant box on the DS-230 form to apply for one. They are not likely to care about his capital, because they are processing him as the spouse of a US citizen.

Finally, I'd recommend you double-check with your Embassy in Turkey, because a US citizen is eligible to file for their spouse at their local Embassy as long as they've lived in that country for more than 6 months (which you have) and have a permit to live there legally - not necessarily a permanent resident card. I'm not 100% sure, but it's not necessarily required that the spouses live in the same country for Direct Consular Filing, so double-cehck with the Embassy. If you're allowed to do that, it can make the process quicker by a few months.

Edited July 29, 2010 by Christi85

[dalyan 0]

1. No, because he would be coming to the US with intent to immigrate. AOS by a tourist is only legal if they did not have intent to immigrate when they entered the US.

2. You would be petitioning for him to come on a CR-1 visa, because you've been married less than 2 years and because the K-3 now gets closed and the CR-1 is processed instead. On the CR-1, he will have LPR status as soon as he enters the country, and will be able to work. That he has capital does not affect it one way or the other, as he would be entering on a family-based immigrant visa.

Hi, thanks for the reply Kukolka. Something I don't get- just who is allowed to do AOS?

We are leaving for the U.S. in ten days. Any recommendations about how to go about doing this?

[dalyan 0]

1. He can come to visit the US, but he cannot apply to change status there. That would only be possible if you were in the States, he was visiting without the intent to marry and then you got married on a spontaneous decision while he was over there. I know it sounds unfair that you can't do it, but it can get very complicated for those who do it as they have to prove that they didn't enter the country with the intention to marry (and how do you prove a negative??). Mind you that if you have a marriage-based visa pending when he visits, he may be denied entry on suspicion of immigration intent. So he should make sure he has strong proof that he intends to return to Switzerland (i.e. return ticket, proof of work, proof of apartment lease or equivalent, bank accounts showing a good balance etc.).

2. If applying in the US, it should take 8-10 months for him to get his CR-1 visa from start to finish (provided that everything is done correctly). Once he gets his CR-1 visa on his passport, he has 6 months to travel to the US on that. Once he enters the US, his details are taken from the Immigration Officers and his entry is registered on their system. That will prompt the production of the green card itself, which should reach him in the mail a few weeks after his entry. But as soon as he is in the country he is able to work, as he'll get a stamp on his CR-1 visa which serves as the provisional green card until the real one arrives in the mail. In order to work/set up a business he'll also need a SSN, so he should make sure he ticks the relevant box on the DS-230 form to apply for one. They are not likely to care about his capital, because they are processing him as the spouse of a US citizen.

Finally, I'd recommend you double-check with your Embassy in Turkey, because a US citizen is eligible to file for their spouse at their local Embassy as long as they've lived in that country for more than 6 months (which you have) and have a permit to live there legally - not necessarily a permanent resident card. I'm not 100% sure, but it's not necessarily required that the spouses live in the same country for Direct Consular Filing, so double-cehck with the Embassy. If you're allowed to do that, it can make the process quicker by a few months.

Thanks for all the info!

As to your last point, I already did check that, and he has to be a resident of Turkey as well. That's why we couldn't start the process from either Turkey or Switzerland. Now I don't know what to do and am feeling the panic increase at the thought that we might have to be apart for six months or so. I'm now wondering if he should just come in and out as a tourist every three months until we can file next summer...

Any recommendations?

[Christi85 86]

If you haven't filed when he comes to visit the US, there shouldn't be a problem. If he does it often though he may get questionned, but if he's got strong proof that he'll be returning home he'll be fine. Generally speaking, it's easier to be let in as a tourist if there's no immigration petition pending - otherwise they suspect immigration intent.

Unfortunately you'll still have to spend some time apart after you file, and it'll be preferable that you go visit him in Switzerland as opposed to him visiting in the US, just to be on the safe side of things.

Before you have filed though, there shouldn't be a problem with him visiting as a tourist.