Aussie Meets an American on Holiday

[Olives24 9]

Hi ya'll,

Needed some advice on my situation so I figured this would be the perfect place to ask!

Last July I met my Boyfriend in San Diego while he was on holiday in SoCal. We literally bumped into each other at a bar and hit it off. I was in SoCal for business and had to leave but he said he was going to be going my way in a few weeks so he'd give me a ring. After that we got on so well and when he went back to Australia we bascially began Skyping every day. I lost a lot of sleep staying up late to talk to him but it was definitely worth it!

We eventually decided to see each other several times afterwards. He came to see me then I went to see him etc. Finally he decided to come over on a visa that he had forgot he had which latest him till March 2012. He arrived in July on our anniversary and he has been here ever since.

We've been taking the time to get to know eachother and see how well we get along, just to be sure. Things have been amazing! We are prepared to take the next steps for our relationship but are lost on deciding where to go!

We want to give California a try and are prepared to take the plunge! But do we get married and apply for the Spouse visa or do we have to do the Fiance visa? He is allowed to be here legally till March 2012.

Any advice work be helpful. Thanks for listening.

Edited September 27, 2011 by Olives24

[Little_My 464]

His current visa status needs some clarification..

1. You say he came here on a visa he didn't remember he had - what visa is this? B2 tourist visa? If so, it's unlikely he is allowed to stay until March, as the maximum stay usually is 6 months at a time, which would be until January, if he came in July. Australia is also a Visa Waiver Program country, which means Australians don't need a visa to come to the US - if he came under the VWP program, his authorized stay is 90 days, which would be until October. The expiration date on his visa is not what determines how long he can stay, it is the date stamped / written on his I-94 arrival/departure record card. You need to figure out what visa he exactly came with, and when his authorized stay expires.

You have the option of adjusting his status to legal permanent resident in the US, if you decide to get married now. Then he does not have to leave - and he actually cannot leave until he has a special travel document called Advance Parole. It's advisable to try to get this done without him overstaying his current status, though overstay won't be an issue if you marry and apply for AOS. This whole process takes about 5 months from submitting the paperwork - but you have to get married first. It will cost you around $1,500 in filing fees, plus the cost of a medical exam and little expenses here and there, like passport photos and copies etc.

Another option is for you to marry, and take the CR-1 spousal visa route. You can start that while he is here under his current non-immigrant visa status, but he will have to return to Australia once his current status expires. This process takes around 9 months, but is cheaper than AOS, and once he gets his CR-1 visa and comes to the US, he immediately becomes a permanent resident, so there won't be any periods when he is in the US and cannot work and/or travel internationally.

K1 is also an option, but it's more expensive than CR-1, he has to adjust his status after he has first applied for the K1 fiance visa, entered the US and married you, and takes about the same as CR-1 I think. Both K1 and CR-1 require you two to be apart for a while, but the benefit of the CR-1 is the fact that he won't have to be in this limbo-status in the US when he cannot work or travel and has to wait around to adjust his status.

Edited September 27, 2011 by Little_My

[Liz&Nate 23]

Hi and welcome!

I am going to leave the issue of the visa your boyfriend forgot he had because I am not sure exactly how that happens, but then again I am not well versed in Australian/USA visa laws. Glad that you guys are happy in any case.

You guys have a couple of decisions to make It seems that your boyfriend hasn't overstayed his visa, which is great. Right now you could choose to file a petition for a K1 fiance visa before you get married (very important, don't get married if you are going this way) and wait for the approval of the petition, after which you'll fiance will have to go back to Australia (he might have to go back before. It depends on whether or not the approval comes before his visa expires) to apply for the visa. Check out the guides to see if this is the option for you. On average the waiting time is around six months. After your fiance gets the K1 he will be allowed to come back on the single entry visa and you can get married and adjust his status.

The other way to go is to get married and file a petition for the CR-1 visa. This has some advantages. The wait is longer, but it is a somewhat cheaper process and your loved one will arrive as a resident. The procedure is the same, although because of the waiting time, it is almost certain that your boyfriend (then husband, I guess) would have to go back before the petition approval to avoid overstaying his visa.

So get engaged or get married. It's up to you guys, but I wish you fantastic luck either way.

[Done--Really 331]

First of all I'd be surprised he can stay until 3/12 legally, but anything is possible. The normal time is six months, but he can apply for an extension--double check what it says in his passport so you don't accidentally get into an overstay situation (although it won't matter if you take door number one below).

But notwithstanding that question, and taking everything at face value, you should be able to marry as soon as you like, and then file for adjustment of status WITHOUT his leaving the country. In fact, if you go that route, he CANNOT leave the country until the process is complete which is usually four months give or take.

If he must return, then get married now, file for a CR-1 visa right away, and then he can return when he hays to--no overstays, please--and he will complete the process at teh embassy in Australia.

Either way is easy, and you can do it all yourselves.

[Olives24 9]

Hi Everyone,

Thanks for the replies! We just looked at his visa and it's a R B-1/B-2 visa.

Just to clarify he can stay here till January 21st 2012 then he has to leave and can return/stay till May 2012. [ Good thing you guys asked cuz now we looked and know haha!]

Does this mean we now only have two options? CR-1 or K-1?

Edited September 28, 2011 by Olives24

[Harpa Timsah 13,258]

The third option is Adjustment of Status. If he can stay here without going home for a few months and you are ready to get married, then that might work for you.

B1/B2 is a visitor visa... but R is a religious visa. Which is it?

[Done--Really 331]

No no no...the easiest option if he can stay through completion is to get married and file for adjustment of status...if you go down that path everything is done here, and he doesn't have to return home--ever !!

But he will have to return home with either CR-1 or K-1

[Olives24 9]

The third option is Adjustment of Status. If he can stay here without going home for a few months and you are ready to get married, then that might work for you.

B1/B2 is a visitor visa... but R is a religious visa. Which is it?

It's a B1/B2 visa.

No no no...the easiest option if he can stay through completion is to get married and file for adjustment of status...if you go down that path everything is done here, and he doesn't have to return home--ever !!

But he will have to return home with either CR-1 or K-1

How long on average does the adjustment of status take? Thanks for your help!

[Little_My 464]

CR-1, K1 or AOS in the US - you can proceed with any of those options really, so now you just need to figure out which fits your situation (financial, work, etc.) best.

K1 - he goes home, applies for a fiance visa. It takes about 7-8 months to get. Then he enters the US with the K1, and you two have to get married within 90 days. After that you will still need to adjust his status before he comes a permanent resident. There will be a 2-3 month period after he enters when he cannot work or travel internationally.

CR-1 - you marry now or later, in US, Australia or anywhere you want to, and then submit an application for a spousal visa. If you marry here, you can begin the process while he is in the US, but he has to leave before his tourist status expires. He waits out the process in Australia, it takes about 9 months. Once visa is issued, he comes to the US and immediately becomes an LPR.

AOS. You marry in the US, and submit paperwork to adjust his status to permanent resident. He cannot work or leave the US for about 3 months, until he gets his employment authorization and travel documents. It will take around 5 months for the whole process.

If he has things to wrap up in Australia, such as work, a lease, his stuff, bank accounts to close, etc. I'd go with the CR-1. K1 is an option too of course, but the time it takes from filing to him getting his GC seems to be longer than with CR-1 - not to mention CR-1 is cheaper.

With K1 or CR-1, he can possibly visit you in the US during the process, though there are no guarantees that he will be allowed in with a pending immigrant application.

If he can stay here for a few months, then AOS seems to be the easiest route for you. You won't have to be separated, and he can go through the whole process without leaving the US.

Edited September 28, 2011 by Little_My

[Done--Really 331]

And if you do the AOS, then any potential overstays don't matter, so he can stay beyond the January date while things wrap up with the AOS. The clock stops as soon as you file the paperwork.

Edited September 28, 2011 by magical

[VanessaTony 3,567]

Come on over to the Aussie chat thread listed in my signature and say hi!

As you're presently together I would think AOS is probably the best bet depending on personal factors. AOS is presently taking around 3-5 months. It can be longer. From your OP it appears that he has no present reason to return home immediately (like a job or apartment) so that adds to the draw of AOS. The only ISSUE with AOS is the amount of money you'll need to lay out to get it started.

You will need to file the I-130 ($420) for him, and he completes the I-485 ($1070) which are filed together. He will also need a complete medical and depending on the CS (civil surgeon) in your area that could be anywhere from $200-$600+. He will need to obtain his birth certificate (get someone to send them or whatever) and his immunisation records for the medical (or have a blood titre done). That's $2K so far...

You're better off filing before his i-94 expires but once you start the process he CANNOT leave without AP or a GC or his process is abandoned and you wasted all that money.

[Done--Really 331]

You still need the medical, vaccinations, birth certificate, and a lot more if you go the K-1 or CR-1 approach, and with CR-1 which is the cheapest, you only save about $600 versus the AOS approach--much less than the cost of flying home and back which is required for the K-1 or CR-1, so I don't think $$ are the deciding factor here

[Olives24 9]

Come on over to the Aussie chat thread listed in my signature and say hi!

As you're presently together I would think AOS is probably the best bet depending on personal factors. AOS is presently taking around 3-5 months. It can be longer. From your OP it appears that he has no present reason to return home immediately (like a job or apartment) so that adds to the draw of AOS. The only ISSUE with AOS is the amount of money you'll need to lay out to get it started.

You will need to file the I-130 ($420) for him, and he completes the I-485 ($1070) which are filed together. He will also need a complete medical and depending on the CS (civil surgeon) in your area that could be anywhere from $200-$600+. He will need to obtain his birth certificate (get someone to send them or whatever) and his immunisation records for the medical (or have a blood titre done). That's $2K so far...

You're better off filing before his i-94 expires but once you start the process he CANNOT leave without AP or a GC or his process is abandoned and you wasted all that money.

Thank you so much for your reply, very informative! I'll definitely hit up the Aussie chat thread.

[Krikit 1,163]

Moving from IR-1/CR-1 Process to General Immigration Discussion.

Welcome to VJ.

[Aloe 10]

Hi Everyone,

Thanks for the replies! We just looked at his visa and it's a R B-1/B-2 visa.

Just to clarify he can stay here till January 21st 2012 then he has to leave and can return/stay till May 2012. [ Good thing you guys asked cuz now we looked and know haha!]

Does this mean we now only have two options? CR-1 or K-1?

Do they automatically give 6 months at POE? I was only given 3 months when I arrived and had to extend it another 3 months so I could stay the entire 6 month period...

The biggest deciding factor in all of this is if you AOS while he is here can you support him withuot him being able to work. This will also be a requirement of you if you do AOS at any point.

I would suggest that you read the guides here on VJ for each of the Visas you may be interested in and see which one you are most comfortable with.

I personally did the AOS while I was on the B-2 visa. It was easy enough so if you need any advice feel free to ask me! Hope all goes well with it.

See you in the Aus part of the forums