Filing i-130 while in Australia but moving to US ASAP

[mizzle 0]

Hello

I am looking for some advice about my situation...

I have been married to a USC since 2008. We were married in the USA but have lived in Australia since then. My husband (USC) now has permanent residency in Aus (soon to be a citizen). We want to go back to the USA as my husband's sister is getting married in August 2013 and my husband has work lined up starting ASAP with his father. His father has been diagnosed with Parkinson's Disease and is ailing. We also have a 5 month old daughter born is Aus.

What is the quickest option for me?

Do you think this is grounds for DCF, because his dad is sick?

Can I file an I-130 while living in Aus and then move to the USA on a visa waiver and convert my status while there?

Or, should I begin the process there?

Should I go over on a tourist visa or waiver and then apply?

Any information would be greatly appreciated.

Thanks

[Alaska2012 462]

If Australia has DCF then go with that, that usually is much faster.

Traveling on visa waiver with the intent to stay is illegal.

[Lainie B 465]

Australia unfortunately does not have DCF.

Entering on a visa waiver or tourist visa with the intent to adjust status is visa fraud.

[Cathi 5,849]

Traveling to the US on VWP or visitor visa with the intent to stay and adjust status is fraud and carries a lifetime ban. You have already stated here that would be your intent of you came on the VWP. If Australia doesn;t allow DCF your only other option is to file an i-130 for IR-1 from abroad and wait for the process to finish. About 6-10 months start to finish. Good luck

Edited January 3, 2013 by mimolicious

[amykathleen2005 441]

Well you cannot file for AOS from VWP with intent. However you can file for CR1 from Australia and visit with VWP as long as you are able.

[mizzle 0]

Well you cannot file for AOS from VWP with intent. However you can file for CR1 from Australia and visit with VWP as long as you are able.

Do you mean that I can file from Australia, enter the USA on a VWP and then extend the VWP? I thought I could only stay for 3 months with VWP.

[Lainie B 465]

Do you mean that I can file from Australia, enter the USA on a VWP and then extend the VWP? I thought I could only stay for 3 months with VWP.

They mean file I-130, then go visit the US on the VWP for up to 90 days, then return to Australia and complete the visa application process at the consulate.

[Penguin_ie 6,000]

They mean file I-130, then go visit the US on the VWP for up to 90 days, then return to Australia and complete the visa application process at the consulate.

This is your best option. Have your US citizen husband file the I-130 now. It is very unlikely to be approved by August, so enter the USA on the VWP then, and stay 89 days (you are allowed 90, but I always recommend 89 in case of travel delays). By then (November) you should almost be ready for your medical and interview. Fly back to Australia, get that done, close out bills, move any furniture you want etc, and come back.

Does your daughter have a US passport yet? She will need one to travel.

[SarahBear 4]

Sorry to hear about your father in law. If Aus still has DCF I would certainly think this would qualify you for a speedy DCF processing. I'm not familiar with the rules for Australia. I'm a USC living in Canada and filing for my Canadian citizen husband. I had to submit my I-130 though the lock box in Chicago, but I believe that if your situation is urgent (and I personally believe your situation may qualify because of your father in law's illness) they do allow for DCF processing, at least they do here in Canada. Anyway, as long as Aus *offers* expedited DCF at least for emergency situations I'd try to do that. The worst they'll say is no, but I'd like to think your situation will get the special attention it deserves due to your circumstances,

For the children you have together, have you actually sought US citizenship for them yet? Just having a US parent does not automatically grant them citizenship by itself if they were born in Aus. You'll need a Certificate of Birth Abroad, and that will grant them their US citizenship. If you haven't done this already, you'll need to go to the website for your nearest US consulate and make an appointment to bring your children there to get them a certificate of birth abroad for US citizenship. I'd suggest doing this today because it may take a little while to get an appointment. Your USC husband will need take the children with him to the appointment and present his proof of US Citizenship and some evidence proving he's lived in the USA for X amount of time (I believe 5 years...but all of this should be on the website as far as what they need for proof.) I ordered my university and high school transcripts and that worked fine for me. There are a few forms to fill out and a fee and a few weeks after the appointment at the consulate you'll have a very fancy certificate mailed to you proving you children are officially US citizens.

While you're at the consulate, I'm pretty sure they'll let you apply for a US passport for your children the same day. At least they allow that at the Toronto consulate. Again, there are forms to fill out and fees but it would potentially save you another trip to the consulate for a US passport.

It may not hurt to ask the US consulate workers if they can advise you on what to do in your situation with immigrating. The people I dealt with at the Toronto consulate were all super nice and friendly and helpful. Hopefully you'll have a good experience at your consular office. Good luck with everything and best wishes to you and your family during this rough time. Hang in there.

[mizzle 0]

Sorry to hear about your father in law. If Aus still has DCF I would certainly think this would qualify you for a speedy DCF processing. I'm not familiar with the rules for Australia. I'm a USC living in Canada and filing for my Canadian citizen husband. I had to submit my I-130 though the lock box in Chicago, but I believe that if your situation is urgent (and I personally believe your situation may qualify because of your father in law's illness) they do allow for DCF processing, at least they do here in Canada. Anyway, as long as Aus *offers* expedited DCF at least for emergency situations I'd try to do that. The worst they'll say is no, but I'd like to think your situation will get the special attention it deserves due to your circumstances,

For the children you have together, have you actually sought US citizenship for them yet? Just having a US parent does not automatically grant them citizenship by itself if they were born in Aus. You'll need a Certificate of Birth Abroad, and that will grant them their US citizenship. If you haven't done this already, you'll need to go to the website for your nearest US consulate and make an appointment to bring your children there to get them a certificate of birth abroad for US citizenship. I'd suggest doing this today because it may take a little while to get an appointment. Your USC husband will need take the children with him to the appointment and present his proof of US Citizenship and some evidence proving he's lived in the USA for X amount of time (I believe 5 years...but all of this should be on the website as far as what they need for proof.) I ordered my university and high school transcripts and that worked fine for me. There are a few forms to fill out and a fee and a few weeks after the appointment at the consulate you'll have a very fancy certificate mailed to you proving you children are officially US citizens.

While you're at the consulate, I'm pretty sure they'll let you apply for a US passport for your children the same day. At least they allow that at the Toronto consulate. Again, there are forms to fill out and fees but it would potentially save you another trip to the consulate for a US passport.

It may not hurt to ask the US consulate workers if they can advise you on what to do in your situation with immigrating. The people I dealt with at the Toronto consulate were all super nice and friendly and helpful. Hopefully you'll have a good experience at your consular office. Good luck with everything and best wishes to you and your family during this rough time. Hang in there.

Thanks so much for your reply. It gives me hope to think i can file for DCF. They still have it here, but has restrictions, such as illness. I'm hoping we fit into the category for this. I will get onto the passport for my daughter. I had no idea it could be so difficult!! Thanks again.

[SarahBear 4]

You're very welcome! I'm grateful I could help you in a time of need.

Getting the certificate of birth abroad/passport wasn't too difficult for my baby, but again I'd make that appointment ASAP with your local US Consulate. Waiting for the appointment and requesting the old transcripts were the hardest part!

If you need any help with any of the paperwork for the certificate of birth abroad or the passport feel free to message me and I'll help you the best I can. Good luck!!

Edited January 3, 2013 by SarahBear