Australia DCF

[Ashton & Ben 1]

Hi there! I have a quick question about whether my fiance and I would be eligible to file for DCF in Australia. I know there's a pinned thread in this forum that deals with Australian DCFs but it's so out of date that I'm hoping someone will have more up to date information.

Anyway, we filed for the K-1 nearly two months ago but we're worried about it not being done by when I need to leave the country in July (I am currently living in Australia with my fiance). After having discussed our options, we decided that we would be willing to bend by getting married in Australia and filing for DCF so we don't have to be apart while he is waiting on his visa.

The main reason I ask if we are eligible, is because I am in Australia on a temporary visa (a Working Holiday) but I have lived here since July of last year. The Sydney consulate's website says that 'temporary visitors' are not allowed to apply but if you've lived here for six months, you can apply.

So I emailed the embassy asking this question and all they did was copy/paste the two confusing passages. Deciding to be proactive, I called the next day but apparently the Sydney consulate doesn't take any visa questions. So I sent them another email asking for clarification and still haven't gotten a response.

So I'm just wondering if anyone knows whether we would be eligible for the DCF filing. I would hate for us to get married and then find out that we can't do the DCF because we'll have to switch to the K-3. But we would also like to be able to return to the U.S. sooner rather than later if possible without being apart from each other for months at a time again.

Any help/suggestions would be appreciated! Thanks!

[YuAndDan 153]

You must have resided legally in the consular district of the U.S. embassy or consulate where you wish to file an immigrant petition abroad for at least the past six months, with several exceptions explained below.

http://travel.state....rants_5254.html

OR

Petitioners must be able to show that they have permission to reside in the consular district and that they have been doing so for at least six months before filing the petition. U.S. citizens whose principal residence is not in the consular district, and/or who have entered the consular district as a temporary visitor, student, or with limited leave to enter and remain, must file the petition with the appropriate (USCIS) Service Center in the United States.

http://canberra.usem....gov/i-130.html

Also there is no switching from a K-1 to K-3, the K-1 petition gets canceled and you have to file an I-130 for a spouse visa.

Forget the K-3, improved processing at USCIS and NVC have eliminated it.

USCIS WILL pull the I-130 from the queue and then tie the I-130 and I-129F together and approve on same date, then NVC WILL close the I-129F and proceed on with the CR-1.

Filing an I-129F will only slow the process down when they pull the I-130 out of the queue to combine the two petitions.

K-3 served only one function, it was derived at a time when I-130 was taking years to get approved, however now since I-130 is approved at same time as I-129F the function of K-3 (Entry to USA and WAITING for I-130 approval) no longer exists, so NVC kills the K-3 in favor of the superior CR-1 or IR-1 visa.

NVC WILL CANCEL the K-3 if they receive the two petitions from USCIS together.

How will the Department of State process my K-3 visa petition?

Important Notice: Effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions:

• The nonimmigrant K visa will be administratively closed.
• The application process explained below will not be applicable and cannot be used.
• The NVC will contact the petitioner and you with instructions for processing your IR-1 (or CR-1) immigrant visa. For more information on the immigrant visa process review the Immigrant Visa for a Spouse webpage.

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality.

http://travel.state.gov/visa/immigrants/ty...pes_2993.html#4

Edited February 22, 2011 by YuAndDan

[YuAndDan 153]

Permission to reside usually means having some sore of residency permit, or visa that allows residency, a visitor's visa usually does not qualify.

[Ashton & Ben 1]

Thanks for the response, but I'm still a bit confused. My visa does allow me to legally live in Australia and I have done so for six months. So does this mean we can get married and apply for DCF?

I didn't mean 'switch to' necessarily though that's how I said it. I meant we would have to change the form that we were using as we would no longer be eligible for a Fiance visa if we get married.

We are just trying to figure out what out what our best option would be at this point so we don't have to be apart again.

[YuAndDan 153]

Thanks for the response, but I'm still a bit confused. My visa does allow me to legally live in Australia and I have done so for six months. So does this mean we can get married and apply for DCF?

I didn't mean 'switch to' necessarily though that's how I said it. I meant we would have to change the form that we were using as we would no longer be eligible for a Fiance visa if we get married.

We are just trying to figure out what out what our best option would be at this point so we don't have to be apart again.

Your visa has to be type that allows residence in Australia, for example a work or student visa to be able to file petition at the consulate. A visitor is not residing in country, they are visiting.

This does not mean you cannot marry, you can, only you will need to mail the petition to the PO box in Chicago.

[Barbara J 115]

Hi there! I have a quick question about whether my fiance and I would be eligible to file for DCF in Australia. I know there's a pinned thread in this forum that deals with Australian DCFs but it's so out of date that I'm hoping someone will have more up to date information.

Anyway, we filed for the K-1 nearly two months ago but we're worried about it not being done by when I need to leave the country in July (I am currently living in Australia with my fiance). After having discussed our options, we decided that we would be willing to bend by getting married in Australia and filing for DCF so we don't have to be apart while he is waiting on his visa.

The main reason I ask if we are eligible, is because I am in Australia on a temporary visa (a Working Holiday) but I have lived here since July of last year. The Sydney consulate's website says that 'temporary visitors' are not allowed to apply but if you've lived here for six months, you can apply.

So I emailed the embassy asking this question and all they did was copy/paste the two confusing passages. Deciding to be proactive, I called the next day but apparently the Sydney consulate doesn't take any visa questions. So I sent them another email asking for clarification and still haven't gotten a response.

So I'm just wondering if anyone knows whether we would be eligible for the DCF filing. I would hate for us to get married and then find out that we can't do the DCF because we'll have to switch to the K-3. But we would also like to be able to return to the U.S. sooner rather than later if possible without being apart from each other for months at a time again.

Any help/suggestions would be appreciated! Thanks!

You have already filed K1 in Jan and you don't leave till July. OMG you can't be without each other for 8 weeks or so. You should be nearing or have NOA2 well and truly by then and when you leave he will not be far behind you. If you want to marry you will have to cancel 129f petition and start again with CR1 spousal visa. We filed Feb last year approved June and I got back here Sept/ I had been in the US from March till June and had to go back to OZ and was home approx 8 weeks and was able to come home again to get married. Why would you want to stufff around with things when you have already paid and started.

And no Sydney consulate does not take calls and they reply to emails usually with in 48 hours

Edited February 23, 2011 by Barbara J

[Ashton & Ben 1]

Thanks YuandDan!

Barbara - I did not say I was leaving the country in July but that I had to be out of the country by July. I'm probably going to have to leave in May because I won't be able to find another job here when my current one finishes in May (because of my visa restrictions). I don't really appreciate the sarcastic tone you took with me. We have no intention of beginning the CR-1 through the U.S. system. My first post clearly says that we don't want to get married here unless we can file for the DCF which is what my entire thread is asking about. And the consideration was not just being apart from each other but also his ability to work sooner upon entering the U.S among other factors for us.

Edited February 23, 2011 by Gex

[YuAndDan 153]

Thanks YuandDan!

Barbara - I did not say I was leaving the country in July but that I had to be out of the country by July. I'm probably going to have to leave in May because I won't be able to find another job here when my current one finishes in May (because of my visa restrictions). I don't really appreciate the sarcastic tone you took with me. We have no intention of beginning the CR-1 through the U.S. system. My first post clearly says that we don't want to get married here unless we can file for the DCF which is what my entire thread is asking about. And the consideration was not just being apart from each other but also his ability to work sooner upon entering the U.S among other factors for us.

Essentially K-1 visa holder will be unable to work for at least 4-6 months after arrival.

IF work shortly after arrival is desired, then the better visa is CR-1, (marry first, then apply for visa) CR-1 spouse visa costs less and gets green-card upon arrival to the USA, also with much improved processing, for most consulates CR-1 tends to take perhaps 1 - 1.5 months longer to get than a K-1.

K-1 may give you a visa is a slightly shorter time, perhaps a month or so, when factoring in the paperwork at NVC.

Compare:

K-1 (FEES ~$1800)

K-1 cannot take a job until getting EAD or Green-card, this can take MONTHS after arrival

K-1 cannot get a DL until they have EAD or Green-card, can use foreign DL in most states though.

K-1 becomes land locked and cannot travel out of the USA until having green-card or AP doc, which can take MONTHS to get.

CR-1 (FEES ~$900)

CR-1 gets green-card the moment they arrive in the USA so can take a job immediately

CR-1 gets green-card so can apply for a DL

CR-1 gets green-card so can immediately travel, conceivable the next day, passport is stamped I-551 which allows work and travel

CR-1 does not take much longer to get than a K-1

If you are only two months into a K-1 petition, you may consider marriage now, canceling the I-129F and filing an I-130, again if work after arriving is a high priority.

[VanessaTony 3,567]

See here: http://canberra.usembassy.gov/i-130.html The problem with DCF is you WILL need to return to the US and establish employment in order to support your fiancee (by then your wife)... so I'm not sure how much more time together you'll really have when you consider the I-864 residency requirements for DCF. For the k1 you'll continue along for another maybe 3 months if you're unlucky (seems to take 5 months to NOA2 now) taking you to a May NOA2 and then as long as she's organised you could be together 2 months later... maybe August at the latest. I honestly can't say how long it will take for you to get a job and re-establish yourself well enough for the DCF side... at least with the K1 you can go and start that in May, then organised a co-sponsor. A co-sponsor should be available for DCF as well but I'm not sure how long you need to be there to re-establish residency...

You later stated that your (then) wife will need to work asap. The K1 isn't really the visa for that to be honest. It's been 2 months so you won't lose that much time. Based on the link I provided above I think you should qualify as a resident because you're permitted to reside in Australia for a working holiday. This is your visa right? http://www.immi.gov.au/visitors/working-holiday/

I understand you may have thought that Barbara's tone was a bit rude but I think she was just shocked that 8 weeks apart might be too much for you and trying to "shock" you into realising that the wait time apart won't really be that long. I think for most of us it's hard to understand a little time apart being an issue. Myself for instance I saw my then fiance Dec 8th 2008 then again 12th Sept 2009 and I survived it.. and I was one of the lucky ones! It sucks to think about, we ALL understand that, but a little time apart to get stuff done properly compared to the lifetime together is nothing. This time apart is one of those things and it will also be good to help her get her life in order to move it over to the US and for you to "set up" for her arrival.

If I were you and money was a concern then I'd try DCF... bearing in mind you need to re-establish in the US. If it's just being apart that's a concern then I would continue with the K1. I think it's better to spend time apart and you preparing the home in the US than having her make the big move and you being as unsettled there as she is (no car, no furniture etc).

Up to you. Good luck.