Family Relocation Back to US and Spousal Visa

[GambitRabbit 0]

Dear Experts,

First off, hope everyone had a wonderful new year 2013 stateside, was cold and kind of boring out here in Europe... But heck, at least we have Apple TV to comfort us :-)

Any way, need some much needed advice with our slightly complex situation. Hoping you can help before we proceed with an immigration attorney to get all our papers complete...

I am a US citizen, wife is UK, we married in UK, living and working in Europe since then (about 4 years now)... This year we are planning to move to the US, I have a job lined up, and naturally my wife will join me.

Questions:

1. I know there is a non-visa waiver of 90 days for her, does that mean she can come for those 90 days and during those 90 we apply for the IR1/CR1 visa so she is not obligated to leave the US?

2. How will this affect my tax filings from before our move to after - do I need to file jointly? She would not be working, only myself.

3. Is there any alternative/simpler way for her to stay in the US without having to get IR1/CR1?

4. Does the visa require her to get a SSN and file taxes? Ideally, we just need a visa for her stay in the US indefinitely - she does not require a job, social services etc.

Thank you!

[speedwell 224]

Dear Experts,

First off, hope everyone had a wonderful new year 2013 stateside, was cold and kind of boring out here in Europe... But heck, at least we have Apple TV to comfort us :-)

Any way, need some much needed advice with our slightly complex situation. Hoping you can help before we proceed with an immigration attorney to get all our papers complete...

I am a US citizen, wife is UK, we married in UK, living and working in Europe since then (about 4 years now)... This year we are planning to move to the US, I have a job lined up, and naturally my wife will join me.

Questions:

1. I know there is a non-visa waiver of 90 days for her, does that mean she can come for those 90 days and during those 90 we apply for the IR1/CR1 visa so she is not obligated to leave the US?

2. How will this affect my tax filings from before our move to after - do I need to file jointly? She would not be working, only myself.

3. Is there any alternative/simpler way for her to stay in the US without having to get IR1/CR1?

4. Does the visa require her to get a SSN and file taxes? Ideally, we just need a visa for her stay in the US indefinitely - she does not require a job, social services etc.

Thank you!

Hi GambitRabbit I married my UKC spouse in the UK too, but I was not resident there. Here are the answers based on my experience, research, and constant forum reading lol...

1. Your wife has to go online and apply for ESTA. If approved, she may visit you on the Visa Waiver Program for up to 90 days as a visitor (not an intending immigrant; she needs to intend to return and actually return). It is illegal to enter the US as a visitor with the intent of staying. You may hear of people entering on the VWP and then filing for adjustment of status. They do have to show that they entered with no intention of staying and the burden of proof is on them. It sometimes works when the applicant entered the US then met and married someone after arrival. Things will not be likely to go well with you if you try to use this method to bring your wife into the country. Do not risk a 10-year or permanent ban. She can visit if it is clear it is a visit; the usual way is to make sure her return ticket is booked, that she can show secure ties to the home country to assure she will return, and that you arrange her visit to end a few days before the 90 days are over to avoid the possibility of overstaying.

2. Since you are a US citizen and married, you must file married and mention your non-resident spouse. Whether you file separately or joint is up to you; there are other threads here that say more about how to manage your tax forms with a non-resident spouse. The route my husband and I are going to go with is for him to file a form to be considered a US resident for tax purposes. It is illegal to "hide" a spouse and claim "single" if you are married.

3. CR1 (if you have been married for less than 2 years) or IR1 (if you have been married for more than 2 years) is the fastest available procedure. The only difference between them is whether the applicant (the non-resident) gets a conditional 2-year or a non-conditional 10-year green card upon visa approval. You DO have an advantage in that as a USC resident in the UK you can do something called Direct Consular Filing, where you file through London instead of through a US location. DCF is usually processed faster. Look at the DCF threads for more information to see whether you qualify and what you must do. One thing you will need to do is establish domicile and income in the US so that you can prove you can support yourself and your wife in the US. This may mean that you return to the US before her to arrange things.

4. As a permanent resident she will need to file taxes, but you may file "married filing joint" and she will not have to file a separate form for herself. What is your objection to getting her a Social Security number?

EDIT: Sorry for so many edits, I am fumblefingered this morning

Edited January 11, 2013 by speedwell

[JohnR! 5,495]

Dear Experts,

First off, hope everyone had a wonderful new year 2013 stateside, was cold and kind of boring out here in Europe... But heck, at least we have Apple TV to comfort us :-)

Any way, need some much needed advice with our slightly complex situation. Hoping you can help before we proceed with an immigration attorney to get all our papers complete...

I am a US citizen, wife is UK, we married in UK, living and working in Europe since then (about 4 years now)... This year we are planning to move to the US, I have a job lined up, and naturally my wife will join me.

Questions:

1. I know there is a non-visa waiver of 90 days for her, does that mean she can come for those 90 days and during those 90 we apply for the IR1/CR1 visa so she is not obligated to leave the US?

2. How will this affect my tax filings from before our move to after - do I need to file jointly? She would not be working, only myself.

3. Is there any alternative/simpler way for her to stay in the US without having to get IR1/CR1?

4. Does the visa require her to get a SSN and file taxes? Ideally, we just need a visa for her stay in the US indefinitely - she does not require a job, social services etc.

Thank you!

Gambit,

Happy new year to you too!

1/The VWP is not meant as a means to enter the US with the intention to immigrate or adjust status. Entering the US as a visitor with the intent to stay is considered immigration fraud. Since you are both resident in the UK, you can use the DCF services in London, which allow you to apply for her residence (IR if you are married for more than 2 years). Check this link to the London Embassy services: http://london.usembassy.gov/dhs/uscis/index.html

2/You can file jointly provided your wife has a SSN or a ITIN. She will be asigned a SSN once she is admitted in the US as a permanent resident (green card holder), or if you do have immediate tax benefits derived from filing jointly, she can apply for a ITIN at the SSA office.

3/If she is planning to reside in the US the IR route is the better one to choose. Under the VWP she can only stay in the US for 90 days and if she uses it for multiple entries spaced closely to each other she may end up being refused entry upon arrival at some point.

4/Yes, once she becomes a US resident she will be required to file taxes as a condition to maintain her resident status, even if she were to derive income from foreign surces - i.e. property rental, pensions or investments in GB. That she must file taxes does not mean she has to work or even have any income. If she is panning to work at home - i.e. be a mother - chances are she will represent a tax break in your taxes, if you file as 'married filing jointly'. However, that is only speculation and although true is most cases, only your specific tax situation will determine that.

I hope this helps!

[GambitRabbit 0]

Speedwell, Gegel,

Thanks both for the super informative feedback! So refreshing after years of being in Europe with an insanely confusing paperwork system... man do I miss home :-)

So ok, it is clear now with the visa waiver and CR1/IR1... Now for some additional complexity.

Our problem is that we have family in both Europe and US... So although we plan to move back to the US, it might turn out that in 5 years we have to return to Europe to look after our family here... Old age, care etc. so if we do that, can we not get somehow with my wife using the WVP? What if she stays for 90 days, leaves for 14, then back for another 90... Not ideal given our situation but at least avoids the extra costs in paperwork for her and she gets to visit family in Europe occasionally?

On top of that, the reason we are not interested in her getting a SSN and filing taxes is because it does not benefit us financially, and if we stay for 5 years then leave and return after another 5 years, then it makes no sense that we are dual taxed in US and UK for our global assets... Therefore keeping it separate would be finically preferable... But ok, if it is mandatory to get SSN and file taxes, then so be it...

Last question... She does have PR status in Canada and technically could get a Canadian citizenship... Should we look at that instead to have her enter US as Canadian, or are the visa and immigration requirements the same?

Oh Lord why can't family just be in one place!!! Parents get so set in their ways in their old days, and its costing us money, oh well.... That's life!

[pushbrk 12,083]

Speedwell, Gegel,

Thanks both for the super informative feedback! So refreshing after years of being in Europe with an insanely confusing paperwork system... man do I miss home :-)

So ok, it is clear now with the visa waiver and CR1/IR1... Now for some additional complexity.

Our problem is that we have family in both Europe and US... So although we plan to move back to the US, it might turn out that in 5 years we have to return to Europe to look after our family here... Old age, care etc. so if we do that, can we not get somehow with my wife using the WVP? What if she stays for 90 days, leaves for 14, then back for another 90... Not ideal given our situation but at least avoids the extra costs in paperwork for her and she gets to visit family in Europe occasionally?

On top of that, the reason we are not interested in her getting a SSN and filing taxes is because it does not benefit us financially, and if we stay for 5 years then leave and return after another 5 years, then it makes no sense that we are dual taxed in US and UK for our global assets... Therefore keeping it separate would be finically preferable... But ok, if it is mandatory to get SSN and file taxes, then so be it...

Last question... She does have PR status in Canada and technically could get a Canadian citizenship... Should we look at that instead to have her enter US as Canadian, or are the visa and immigration requirements the same?

Oh Lord why can't family just be in one place!!! Parents get so set in their ways in their old days, and its costing us money, oh well.... That's life!

I can't speak to the Canada issue except to say that Canadians are allowed to visit the USA, not live in the USA for more than six months out of any twelve months. Anything that allows your foreign spouse to reside in the USA will also result in both a Social Security Number being assigned AND the need to file US tax returns. You, as a US Citizen are required to file US tax returns anyway, even if your foreign income would be exempt from any US taxes.

To obtain resident status for your wife by any available means, YOU will need to file at least 2010, 2011 and 2012 US tax returns. There is also a sponsorship requirement.

Please start by carefully studying the CR1/IR1 visa guide. Just click on the word Guides at the top of any page here. I encourage you do to that BEFORE asking any more questions. THEN ask any remaining questions.

To deal with the family in Europe, your wife could become a US Citizen (dual citzen) after three years of US residence. After she is a citizen, she can come and go from the USA for as long as she wishes without losing status, just like you.

[speedwell 224]

Speedwell, Gegel,

Thanks both for the super informative feedback! So refreshing after years of being in Europe with an insanely confusing paperwork system... man do I miss home :-)

So ok, it is clear now with the visa waiver and CR1/IR1... Now for some additional complexity.

Our problem is that we have family in both Europe and US... So although we plan to move back to the US, it might turn out that in 5 years we have to return to Europe to look after our family here... Old age, care etc. so if we do that, can we not get somehow with my wife using the WVP? What if she stays for 90 days, leaves for 14, then back for another 90... Not ideal given our situation but at least avoids the extra costs in paperwork for her and she gets to visit family in Europe occasionally?

On top of that, the reason we are not interested in her getting a SSN and filing taxes is because it does not benefit us financially, and if we stay for 5 years then leave and return after another 5 years, then it makes no sense that we are dual taxed in US and UK for our global assets... Therefore keeping it separate would be finically preferable... But ok, if it is mandatory to get SSN and file taxes, then so be it...

Last question... She does have PR status in Canada and technically could get a Canadian citizenship... Should we look at that instead to have her enter US as Canadian, or are the visa and immigration requirements the same?

Oh Lord why can't family just be in one place!!! Parents get so set in their ways in their old days, and its costing us money, oh well.... That's life!

It is indeed life, LOL...

The only viable option for her to live in the US is for her to get permanent resident status. The easiest and fastest way to do that is via the spouse procedure, especially if you can DCF. This is faster than any other visa she might apply for, as far as I know.

You don't know for sure when or even that you will need to return to the UK in 5 years. If you do, then your wife, as a green card holder, is in danger of involuntarily relinquishing her PR status if she stays out of the US for longer than 6 months per trip/more than 180 days in a year. She can file a form documenting her intent to return; this form also has a significant processing time though. For short (a couple weeks), occasional (every couple months) visits out of the US, she should be fine on just a green card. She can become a citizen after 3 years, too, without relinquishing her UK or Canadian citizenship.

Unfortunately you can't turn around VWP visits like you used to years ago. It used to be common to "reset" the visit period by crossing a border and coming back in a few days later. Not only did they make this impossible to do within North America (no more weekends in Matamoros for us Texans!) but they now question you if you have spent less than the amount of the previous trip out of the US (as a rule of thumb). My husband, here for a visit of 85 days, will need to stay out for ~90 days to keep from raising too many eyebrows when he returns on the VWP again. Even then, he could possibly be turned away if the immigration official doesn't like the cut of his jib.

I would consult a qualified accountant who knows about how to deal with international assets to determine what the best course of action is for you.

I think the Canadian forum members would join in with me to say that it isn't any easier for them than it is for the rest of us.

Edited January 11, 2013 by speedwell

[JohnR! 5,495]

X 2 with pushbrk and speedwell...

[Asia 2,491]

Our problem is that we have family in both Europe and US... So although we plan to move back to the US, it might turn out that in 5 years we have to return to Europe to look after our family here...

During those 5 years your wife might be able to get the US citizenship, so she would ba able to live wherever she wants.