Visiting (again) after 5 months spent outside of the U.S

[gotham10011 1]

Hello everyone,

I'm about to send my I129-F package since DoMA is now history.

My bf and I were in a weird situation regarding immigration so he used a B1/B2 visa "a lot" to visit me in the U.S.

I would love some people thoughts about his next trip to the U.S while waiting for NOA2.

Last time he got pulled into secondary inspection - first time after 7 visits within 3 years - since the IO did not really understand why he was coming in the U.S for 6 months or then going home for 5 months (I do understand why the IO sent him talking to someone else though).

My bf did not really said he was visiting me - just said he had a lot a free time and some savings and loved going to the U.S - but his I94 allowed him to stay another 6 months even if he said he was staying only 2 weeks.

The second IO told him his journeys were confusing cause it seems he was living in the U.S with a tourist visa and that he should consider another status to be granted entry next time.

We were scared he would not be able to come again so he decided to stay longer since his I94 was good for 6 months and he changed his return flight.

He left in February and he's now working in his country, that was not the case before.

He just got approved 2 weeks (15 days) holidays for August with his work so of course we want to see each other before Christmas.

We are willing to take that risk since we know that even if he's sent back home that won't affect the K1 application but what do you think about his chances to go through immigration? I know it's a "stupid" question and nobody really have an answer...

I really think he will be fine, he has a B1/B2 and doesn't need it cause he could used the VWP.

When he will come in August that will have been a little more than 5 months since he left the U.S.

This time, he will bring his last pay-stub, lease, one or two utility bill, I129-F package, and maybe NOA1 (too much?). He will have a return flight of course.

Honestly he can't stay more than 2 weeks, he needs to be back in Europe to work, he doesn't have much savings anymore (at least not to stay another 6 months without working). We are in a different situation since DoMA is repealed, we know it's a matter of time now!

We talked to a lawyer few months ago and he told us since he went to secondary inspection last time, he won't clear immigration without talking to a supervisor this time and that he will likely be deported.

I'm not a really optimistic person but I guess he will have to go to secondary and will only get 15+1 days on his I94.

Sorry, I'm really bad making long stories short!

Thanks for your thoughts!!

Edited June 30, 2013 by gotham10011

[The Mean Lady 604]

As long as he brings ties to his country such as a lease, bank account records, and especially that letter from his employer of when he needs to be back, then he shouldn't have issues.

Also, if he is amidst the K1 process, be sure he brings a copy of his NOA1 to show he's in the middle of the visa process.

This is a good tie to show that you're doing things the right way.

[gotham10011 1]

Thanks KDH!

He should say "Visiting my fiancé for 2 weeks" right?

I know that his immigration history is odd-ish but we did not have much options until last week. I assume the IO would understand that. (I know he doesn't have to)

At least, he has demonstrated a habit of departing timely.

I think he should not say his visiting friends but state he's visiting his fiancé.

I know it's a different topic but basically for NOA1 with G-1145 we received an email or (and?) text and then the hard copy. Am I right?

[The Mean Lady 604]

Always answer the questions being asked honestly and only the ones being asked.

If they ask why he's coming in, he's coming in to visit his fiance.

Given his last entry with issues, there's a chance they really really might be looking for more ties to his country, so just make sure he brings ties to france and is completely honest.

I didn't apply for immigration for my husband for over 2 years so I faced the questions constantly on what's going on with immigration, but after we filed, no more questions really, just provided any status I had during the process which at the last cross was just a copy of the NOA1.

I received an email copy and a paper copy at my address in the US.

I was in canada at the time, so I had my mother scan the physical NOA1 so I could print it and provide a copy during crossing.

I'm sure the email confirmation would have been sufficient as well, though.

email printed, I mean.

[loughrey101 13]

Hello everyone,

I'm about to send my I129-F package since DoMA is now history.

My bf and I were in a weird situation regarding immigration so he used a B1/B2 visa "a lot" to visit me in the U.S.

I would love some people thoughts about his next trip to the U.S while waiting for NOA2.

Last time he got pulled into secondary inspection - first time after 7 visits within 3 years - since the IO did not really understand why he was coming in the U.S for 6 months or then going home for 5 months (I do understand why the IO sent him talking to someone else though).

My bf did not really said he was visiting me - just said he had a lot a free time and some savings and loved going to the U.S - but his I94 allowed him to stay another 6 months even if he said he was staying only 2 weeks.

The second IO told him his journeys were confusing cause it seems he was living in the U.S with a tourist visa and that he should consider another status to be granted entry next time.

We were scared he would not be able to come again so he decided to stay longer since his I94 was good for 6 months and he changed his return flight.

He left in February and he's now working in his country, that was not the case before.

He just got approved 2 weeks (15 days) holidays for August with his work so of course we want to see each other before Christmas.

We are willing to take that risk since we know that even if he's sent back home that won't affect the K1 application but what do you think about his chances to go through immigration? I know it's a "stupid" question and nobody really have an answer...

I really think he will be fine, he has a B1/B2 and doesn't need it cause he could used the VWP.

When he will come in August that will have been a little more than 5 months since he left the U.S.

This time, he will bring his last pay-stub, lease, one or two utility bill, I129-F package, and maybe NOA1 (too much?). He will have a return flight of course.

Honestly he can't stay more than 2 weeks, he needs to be back in Europe to work, he doesn't have much savings anymore (at least not to stay another 6 months without working). We are in a different situation since DoMA is repealed, we know it's a matter of time now!

We talked to a lawyer few months ago and he told us since he went to secondary inspection last time, he won't clear immigration without talking to a supervisor this time and that he will likely be deported.

I'm not a really optimistic person but I guess he will have to go to secondary and will only get 15+1 days on his I94.

Sorry, I'm really bad making long stories short!

Thanks for your thoughts!!

You called the person you intend to marry your boyfriend, make you that whenever you are in the presence of visa officials that you avoid using the word boyfriend and instead say fiance because I have heard people having issues and being turn away because they referred to each other as boyfriend and girlfriend.

[gotham10011 1]

Again KDH, thank you very much for your help!

I was more concerned about the fact that he stayed 6 months last time but I know that things had changed now and the situation is not really hard to understand even for a non-gay friendly IO (especially at JFK).

We were uncertain before, we're not anymore. Yes, he stayed 6 months last time (and the time before) it does not really make sense as a tourist but we did not know what to do back in September.

@loughrey101, You're confirming our thoughts and advise to use the work "fiancé" right?

Edited June 30, 2013 by gotham10011

[Dave&Roza 748]

Again KDH, thank you very much for your help!

I was more concerned about the fact that he stayed 6 months last time but I know that things had changed now and the situation is not really hard to understand even for a non-gay friendly IO (especially at JFK).

We were uncertain before, we're not anymore. Yes, he stayed 6 months last time (and the time before) it does not really make sense as a tourist but we did not know what to do back in September.

@loughrey101, You're confirming our thoughts and advise to use the work "fiancé" right?

6 months in and 5 months out and 6 months in and now 5 months out. Yes, he is living in the US on a tourist visa and given that he was "warned" the last time about seeking a new visa status, IMHO, if he tries to come in August he will be placed on the next plane back to the EU. He has spent more time in the US then out and the CBP has made a notation in his file. I do not think him travelling after filing a finace visa is enough of a change in status to allow the CBP to allow him to enter. You can try, but expect him to be denied. I would wait until December so he has spent more than 6 months outside the US since his last visit. Maybe you should go visit him in August and then he can visit in December over Xmas so he has spent more time outside the US.

It all depends on the CBP person he gets, but my take on what you have said is that it is more likely that he will be refused entry than granted entry. Your call.

Good luck,

Dave

Edited June 30, 2013 by Dave&Roza

[The Mean Lady 604]

He's only coming in for 2 weeks and has the job to prove it, that's the only reason I say you should be okay.

That's not to say you can't get denied, of course you can, you ALWAYS can and you should ALWAYS be prepared for that possibility.

My husband and I are visiting on Saturday and I have an interview on the 17th and a hotel reservation, but I'm fully prepared for the possibility of him getting denied because we no longer have a valid lease and he's quitting his job.

I'm hoping they don't really think we're THAT stupid, but my husband has also had a history of denials at the border.

You say your fiance was not denied at the border last time, only warned, so IMO there's no REAL suspicion that he's living here.

If they REALLY thought he was living here, then they would have denied him: flat out.

They were probably only using it as a deterrent for any future behavior they thought you might to partake in (IE eventually trying to live here on the VWP)

Again, you could OF COURSE get denied, but I PERSONALLY don't see an issue because of the solid job and he really MUST provide a letter from his employer of when he's coming back.

Also bring a lease if he has one.

I'm one of most skeptical people here when it comes to visiting w/o ties because of my husband's history and I really think you have a chance of having no issues, just be prepared for the worst just in case.

GL to you both in your filing process!

Edited June 30, 2013 by KDH

[gotham10011 1]

6 months in and 5 months out and 6 months in and now 5 months out. Yes, he is living in the US on a tourist visa and given that he was "warned" the last time about seeking a new visa status, IMHO, if he tries to come in August he will be placed on the next plane back to the EU. He has spent more time in the US then out and the CBP has made a notation in his file. I do not think him travelling after filing a finace visa is enough of a change in status to allow the CBP to allow him to enter. You can try, but expect him to be denied. I would wait until December so he has spent more than 6 months outside the US since his last visit. Maybe you should go visit him in August and then he can visit in December over Xmas so he has spent more time outside the US.

It all depends on the CBP person he gets, but my take on what you have said is that it is more likely that he will be refused entry than granted entry. Your call.

Good luck,

Dave

@Dave&Roza: Wow Dave.. I am really sad but everything you just said make so much sense!

KDH and loughrey101 were right if his immigration history was not that complicated and yes that K1 application will help for a future entry by the end of the year.

The CBP agent he met last time totally made a notation on his file. I don't see how he did not write anything.

I assume they are not worried about him working illegally or trying to overstay, this is just about the amount of time he spent in the country. Even if he had a tourist status, yes he was living in the U.S. in an odd legal way since we could not do anything to change his status back in the time.

I know this is at the discretion of the CBP person he gets and LGBT (G in this case) don't deserve any special treatment but I heard that CBP were aware of the DoMA situation and were a little comprehensive.

You really don't think he could be stamped for only 16 days (time between arrival and date of departure on his ticket +1 day)? I heard they easily doing that instead of refusing entry since it's kind of a hard process.

[The Mean Lady 604]

Here's some additional info that might help you have a smooth cross.

They tend for long stays to view you as a potential to become a public charge.

Your fiance could purchase some travel insurance for the 2 weeks, that shows a temporary visit and helps to show he won't become an issue should he become injured.

Also, you mentioned before changing his flight.

Try a non-refundable return flight.

Refundable flights obviously hold less evidence than non-refundable ones.

[gotham10011 1]

You say your fiance was not denied at the border last time, only warned, so IMO there's no REAL suspicion that he's living here.

If they REALLY thought he was living here, then they would have denied him: flat out.

They were probably only using it as a deterrent for any future behavior they thought you might to partake in (IE eventually trying to live here on the VWP)

Thanks y'all to participate in this post! I really appreciate it!

During the secondary inspection he will get, I am 100% sure he will show the IO he's aware of the laws concerning immigration and will explain the situation really calmly.

The only thing I'm afraid of is he's going to cry a little and the officer could get annoyed. But my fiancé is cool and stress-resistant, I mean no short tamper or anything.

And you might be right, if CBP wanted to give him a REAL warning that could have just stamped x days instead of a full 6 months. The immigration guy said he spent 15 of the last 24 months in the U.S and he got a I94 for 6 months and he literally said "Welcome back to the U.S since you love it!"

He was kinda living here with me though..

I am so confused !!

About your situation, why would they think you will jeopardize everything before your itw on the 17th? The IO would believe you're drop your application, overstay and work illegally? I don't think so.

We're not dealing with robots, you will be fine cause everything make sense in your statement.

[gotham10011 1]

Here's some additional info that might help you have a smooth cross.

They tend for long stays to view you as a potential to become a public charge.

Your fiance could purchase some travel insurance for the 2 weeks, that shows a temporary visit and helps to show he won't become an issue should he become injured.

Also, you mentioned before changing his flight.

Try a non-refundable return flight.

Refundable flights obviously hold less evidence than non-refundable ones.

We were actually "joking" about the fact this is the first time the ticket he bought was really non-refundable. Like it's not even possible to pay a fee to rebook the return flight.

He already have an insurance with his CC company but I'll tell him to print that too. Good call! Thanks!

Lease will be in French though.. And he's working for a french company but his boss is a USC. I know the letter stating he's expected to be back to work will be in English. I hope they won't think it is fake.

And last time he did not really lied, I mean we were supposed to spend 10 days in California but I freaked out and his I94 was ok.

[The Mean Lady 604]

I'm sure you will be fine.

The first time my husband came to visit with me, it was for 2 months.

They told him he was being denied and i started BAWLING.

I asked to speak to a supervisor and they ended up letting him go through.

So... I think they're kinda used to that lol.

Just, like you said, stay calm, state the facts, have your paperwork prepared.

I apologize if I'm not understanding what else I'm about to say, but you mention he has a visitors visa AND he still has access to the VWP, right? I think VWP is only for 3mos, so I suggest you do not enter on the visitors visa.

The visitors visa was obviously so he could stay longer but IMO just entering on VWP shows intent to stay shorter.

Again, I'm totally guessing if that's how it works, but just my personal opinion.

[gotham10011 1]

I apologize if I'm not understanding what else I'm about to say, but you mention he has a visitors visa AND he still has access to the VWP, right? I think VWP is only for 3mos, so I suggest you do not enter on the visitors visa.

The visitors visa was obviously so he could stay longer but IMO just entering on VWP shows intent to stay shorter.

He does not need a visitor visa (B1/B2) since he has access to the VWP but he did a road trip of 4 months and the US Embassy in Paris granted him 3 years ago. Since both are for business or tourists, I don't think he could use the VWP instead of the "real" visa. They don't even use hard copy of I94 anymore. The IO will see everything they have on file anyway when swiping the passport.

I'm glad you thought about the insurance! Thanks again!

[Ivy. 113]

Hey gotham,

I hope your fiancee goes through. NOA 1, letter from the boss, lease and health insurance will surely help.

However, I thought of something else. Make sure your fiancee does not pass the substantial presence test, if he does he is considered a resident alien for tax purposes and could be required to pay U.S. tax:

Substantial Presence Test

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for calendar year 2012 To meet this test, you must be physically present in the United States on at least:

• 31 days during 2012, and
• 183 days during the 3-year period that includes 2012, 2011, and 2010, counting:
  • All the days you were present in 2012, and
  • ¹/₃ of the days you were present in 2011, and
  • ¹/₆ of the days you were present in 2010.

Example.

You were physically present in the United States on 120 days in each of the years 2010, 2011, and 2012. To determine if you meet the substantial presence test for 2012, count the full 120 days of presence in 2012, 40 days in 2011 (¹/₃ of 120), and 20 days in 2010 (¹/₆ of 120). Because the total for the 3-year period is 180 days, you are not considered a resident under the substantial presence test for 2012.

The term United States includes the following areas.

• All 50 states and the District of Columbia.
• The territorial waters of the United States.
• The seabed and subsoil of those submarine areas that are adjacent to U.S. territorial waters and over which the United States has exclusive rights under international law to explore and exploit natural resources.

The term does not include U.S. possessions and territories or U.S. airspace.

Edited July 1, 2013 by Ivy.