This has probably been answered 1000 times...

[L D 3]

...but after some searching I couldn't find anyone with my same characteristics on this forum.

Situation:

• I am a US citizen living overseas who has just received (and accepted) a job offer in the US.
  
• My wife is an Australian citizen.
  
• We have two children.
  
• I support my wife financially.
  
• We have been married for 5 years.
  

My question: can my wife enter the US as a tourist with me, then apply for a AOS and/or file the I-130 when she's in-country? From what I understand, once she's in the country she's fine to file but coming in at the border with the intention to migrate can get her in trouble. Has anyone else experienced this situation?

Thanks in advance for your help!

[No-Where-Man 147]

I doubt she will be granted a tourist visa.

Many got refused for the fact the consular office assume they are immigrant(specially when they are married).

You will need to petition for her while you are in the US. if approved( a process that takes from 4 month to 6 or more depending), then she will be issued immigrant visa and once she is here, she will get a 10 years GC.

It wont hurt to try. but I tell from my experience of many who got rejected.

your kids are US citizens as they were born to a US citizen parent. you can take them to the embassy and get them passports and fly with you(you might be asked for a DNA test to prove that).

Good luck

Edited April 24, 2012 by no_where_man

[L D 3]

I doubt she will be granted a tourist visa.

Many got refused for the fact the consular office assume they are immigrant(specially when they are married).

You will need to petition for her while you are in the US. if approved( a process that takes from 4 month to 6 or more depending), then she will be issued immigrant visa and once she is here, she will get a 10 years GC.

It wont hurt to try. but I tell from my experience of many who got rejected.

your kids are US citizens as they were born to a US citizen parent. you can take them to the embassy and get them passports and fly with you(you might be asked for a DNA test to prove that).

Good luck

Many thanks; she's on the visa waiver program (coming from Australia) so she can get into the country, I just want to make sure she can apply once we're in-country...

[Merrytooth 5,748]

Many thanks; she's on the visa waiver program (coming from Australia) so she can get into the country, I just want to make sure she can apply once we're in-country...

Read this thread: http://www.visajourney.com/forums/topic/364263-adjusting-status-of-spouse-in-us-urgent-advice-needed/

This situation is similar to yours.

[No-Where-Man 147]

Be careful of abusing VWP.

Also DCF might be an option(just came to my mind)

You can take a look at the link provided above.

Edited April 24, 2012 by no_where_man

[L D 3]

Thanks no_where_man and Merrytooth, this is helpful...it's clear that the VWP route is considered illegal and risky and we won't be pursuing it.

[Ryan H 3,791]

Moved from K3 Process & Procedures to IR-1/CR-1 Process & Procedures as the IR-1 visa path is the only viable option for the OP.

Also DCF might be an option(just came to my mind)

DCF is not available in Australia as there is no USCIS field office there.

OP, since you have been married for more than two years, your wife would be issued an IR-1 visa which will result in her receiving a 10 year green card when she enters the US.

Also, if you don't qualify to file a Consular Report of Birth Abroad (CRBA) for your children, you will have to file petitions for them as well (they would receive citizenship upon entry to the US).

[L D 3]

Moved from K3 Process & Procedures to IR-1/CR-1 Process & Procedures as the IR-1 visa path is the only viable option for the OP.

DCF is not available in Australia as there is no USCIS field office there.

OP, since you have been married for more than two years, your wife would be issued an IR-1 visa which will result in her receiving a 10 year green card when she enters the US.

Also, if you don't qualify to file a Consular Report of Birth Abroad (CRBA) for your children, you will have to file petitions for them as well (they would receive citizenship upon entry to the US).

Thanks...yes, both kids are US Citizens as well through CRBA, so it's just her...no DCF here unfortunately, was thinking of doing it through South Africa as her parents live there but USCIS told me I'd have to do it from wherever I was, which will be the US in a couple of months. We'll just have to wait and cross our fingers that we're not physically separated for too long. Not a fun process and doesn't really make sense considering she's 100% sure to get a visa.

[jaycali 415]

...but after some searching I couldn't find anyone with my same characteristics on this forum.Situation:

• I am a US citizen living overseas who has just received (and accepted) a job offer in the US.
• My wife is an Australian citizen.
• We have two children.
• I support my wife financially.
• We have been married for 5 years.

My question: can my wife enter the US as a tourist with me, then apply for a AOS and/or file the I-130 when she's in-country? From what I understand, once she's in the country she's fine to file but coming in at the border with the intention to migrate can get her in trouble. Has anyone else experienced this situation? Thanks in advance for your help!

I doubt she will be granted a tourist visa.

She doesn't need a tourist visa. Australian citizens can travel on the visa waiver program.

However. While it is possible (and legal) to adjust status from tourist to permanent resident based on marriage, it is illegal to enter the US on the visa waiver program with the intention of doing so. It's considered immigration fraud, and can potentially have pretty severe consequences.

Basically, the only legal way to adjust status from tourist to LPR is if the decision to adjust status happened on a whim, after entry. While on paper, VWP tourists can't adjust status, most USCIS local offices will still do it, however, some offices are notorious for not doing it, and even places overstayers in removal proceedings.

On a brighter note, even if DCF is not available, the USCIS has had a trend lately of auto-expediting cases where the petitioner is living in the beneficiary's country, so you might be looking at a 2 - 3 week petition.

Edited April 25, 2012 by jaejayC

[L D 3]

She doesn't need a tourist visa. Australian citizens can travel on the visa waiver program.

However. While it is possible (and legal) to adjust status from tourist to permanent resident based on marriage, it is illegal to enter the US on the visa waiver program with the intention of doing so. It's considered immigration fraud, and can potentially have pretty severe consequences.

Basically, the only legal way to adjust status from tourist to LPR is if the decision to adjust status happened on a whim, after entry.

On a brighter note, even if DCF is not available, the USCIS has had a trend lately of auto-expediting cases where the petitioner is living in the beneficiary's country, so you might be looking at a 2 - 3 week petition.

Thanks for this response. Based on what you say (and what I've researched) if you can get past border patrol once you're in-country you can apply for the status, etc. It's just illegal to do this and if you get caught you risk a 5-year ban...doesn't seem worth it.

OTOH, you mention auto-expediting cases...if this is correct then we might get super-lucky...I hope you're right! Where did you get this info?

[jaycali 415]

Thanks for this response. Based on what you say (and what I've researched) if you can get past border patrol once you're in-country you can apply for the status, etc. It's just illegal to do this and if you get caught you risk a 5-year ban...doesn't seem worth it.OTOH, you mention auto-expediting cases...if this is correct then we might get super-lucky...I hope you're right! Where did you get this info?

Don't enter the US and adjust status if that's the intention. It could really turn nasty and it's very illegal. A misrepresentation charge is far far far worse than waiting 3 - 9 months for everything to be done legit.

As for auto-expediting. The USCIS apparently denies it, but based on numerous (and I mean numerous) members here on VJ that's the case. What happens is, when the petitioner is actually residing in the beneficiary's country, the petition is placed in the expedite bucket. expedite usually means 2 - 4 weeks, rather than 4 - 6 months. Once approved, she'll still have to apply for a visa through the state department (NVC and consulate) like usual (2 - 3 months depending on how prepared you are), but cutting down the wait time by 3 - 5 months is definitely worth it!

So whatever you do, send in the I-130 BEFORE you go back to the US. And make sure the address noted on there is your Australian address. If you have an Australian long-term visa or resident card, include a copy of it, but don't ask for an expedite.

Edited April 25, 2012 by jaejayC

[L D 3]

Don't enter the US and adjust status if that's the intention. It could really turn nasty and it's very illegal.

As for auto-expediting. The USCIS apparently denies it, but based on numerous (and I mean numerous) members here on VJ that's the case. What happens is, when the petitioner is actually residing in the beneficiary's country, the petition is placed in the expedite bucket. expedite usually means 2 - 4 weeks, rather than 4 - 6 months. Once approved, she'll still have to apply for a visa through the state department (NVC and consulate) like usual (2 - 3 months depending on how prepared you are), but cutting down the wait time by 3 - 5 months is definitely worth it!

So whatever you do, send in the I-130 BEFORE you go back to the US. And make sure the address noted on there is your Australian address. If you have an Australian long-term visa or resident card, include a copy of it, but don't ask for an expedite.

Great advice...thanks for this. I will report back if I experience this rapid response!

[jaycali 415]

Great advice...thanks for this. I will report back if I experience this rapid response!

Any time, and good luck on your visa journey! The more posters report on it, the more it's documented and the easier it is to give advise Be advised though that auto-expedite is a "theory" based on numerous VJ cases in the last 6 months, so no guarantee. But it makes sense that they do this, since DCF is becoming more and more limited.

Use the timeline function on here for all it's worth!

Edited April 25, 2012 by jaejayC

[chaine1 116]

Great advice...thanks for this. I will report back if I experience this rapid response!

Hi LD,

I was one of those who reside abroad and was auto-expedited. My I-130 was approved in about 2 weeks. You still have to go through the NVC at the usual speed, so that has taken me roughly two months. Basically, see my timeline at the bottom of my post. I'm currently waiting for an interview to be scheduled for my husband. I'm expecting the whole process, from start to visa in hand, will have taken about 5 months.

Read through this thread here to understand this auto-expediting thing more. Make sure you list your Oz address on your I-130!

Good Luck!

[L D 3]

Hi LD,

I was one of those who reside abroad and was auto-expedited. My I-130 was approved in about 2 weeks. You still have to go through the NVC at the usual speed, so that has taken me roughly two months. Basically, see my timeline at the bottom of my post. I'm currently waiting for an interview to be scheduled for my husband. I'm expecting the whole process, from start to visa in hand, will have taken about 5 months.

Read through this thread here to understand this auto-expediting thing more. Make sure you list your Oz address on your I-130!

Good Luck!

Thanks! I will use the timeline on here the minute we post our info out.

Very thankful for such a helpful community...