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

[Dave&Roza 748]

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:

He meets the substantial presence test as he has been the US 15 months out of the last 24. However, he is still a citizen of France and not a LPR of the US; so he does not have to pay US taxes. The only thing that I worry about for his situation is that the last time he visited he was told he might want to us a different class of visa for his next visit (my take on that is he should use an immigrant visa and not a tourist visa). He was allowed in and proceed to stay for the 6 months and then left for 5 months. Now he wants to return for 2 weeks. He does have proof of stronger ties to France this time then the last couple of times he visited, but IMHO it does not out weigh the warning the CBP agent gave him on his last visit. I hope I am wrong, but my gut is telling me that he will be denied. Had he not stayed the full 6 months and had remained outside the US for more than 6 months his case would be stronger.

Sorry be such a wet blanket,

Dave

[Ivy. 113]

He meets the substantial presence test as he has been the US 15 months out of the last 24. However, he is still a citizen of France and not a LPR of the US; so he does not have to pay US taxes.

I may be reading this the wrong way, the fact that he is "visiting" for so long makes him a resident alien as far as IRS is concerned even if he is on a B-2 and not a GC. Here is what the IRS says about this, same publication:

Resident Aliens

You are a resident alien of the United States for tax purposes if you meet either the green card test or the substantial presence test for calendar year 2012 (January 1–December 31). Even if you do not meet either of these tests, you may be able to choose to be treated as a U.S. resident for part of the year. See First-Year Choice under Dual-Status Aliens, later.

I am a citizen of Croatia and not LPR of the US, but I declared myself a resident alien for tax purposes for 2012 even though I did not meet the green card test or substantial presence test because my husband and I wanted to file "Married Filing Jointly". I noticed this bit when I was doing my own research.

Honestly, I do not know enough about this, but someone who plans to move and live in the U.S. might wanna check this out. I am sure they don't want any trouble, but saying he doesn't have to pay US taxed because he does not have a green card and regardless of the time he spent in the U.S. is obviously wrong. He might be exempt on another basis (not making enough money, paying in France, etc.)

[jkb11 26]

If you meet the substantial presence test, I believe you would have to file Form 8840 in order not to be treated as a tax resident. But only if you have been in the U.S. for less than 183 days in given calendar year.

Edited July 1, 2013 by jkb11

[littlej 23]

@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.

My last trip to visit my fiance (then boyfriend) i was pulled into secondary and they only allowed me entry for 2 more weeks as i had been spending quite a bit of time in the States. So i'm sure worse case scenario they could do that for your fiance if they are concerned about him trying to spend longer....good luck, i hope he gets in

Edited July 1, 2013 by littlej

[CaroSL 68]

Honestly, I do not know enough about this, but someone who plans to move and live in the U.S. might wanna check this out. I am sure they don't want any trouble, but saying he doesn't have to pay US taxed because he does not have a green card and regardless of the time he spent in the U.S. is obviously wrong. He might be exempt on another basis (not making enough money, paying in France, etc.)

That's a very good point. But he wasn't working in the US, so even if he has to fill, he shouldn't pay any taxes right?

And I am not sure the immigration officers will care about taxes. But they will probably care that if he spend 6 months in the US again, he is definitely living here on a tourist visa.

To the OP, I would say:

• Congratulations on your engagement!! I am so extaticly happy that DOMA is now history!
• Visiting him in august for 2 weeks, and have him visit later when he spent most of the year in France (more than 6 months) is definitely the safest way. This is what I would do in your situation. He could visit and everything could be ok, but if it doesn't and he is deported, you'll have this to explain for the K-1 visa. It is not such a big deal in itself, but it will add pressure and stress on you guys. This process is very stressful, so my advice is always to do anything possible to not add any unnecessary stress to it
• Yes, he should say he is visiting his fiancé. That would be very confusing for customs officers if he didn't say so and then they found out...They would be suspicious.
• If you haven't fill I-129F yet, have you considered just getting married and then go the CR-1 route? It is almost the same processing time (so same separation time) but at least once he get in the US, he will have a GC... so he won't have to sit around for 3 months waiting for a work authorization. And it is a bit cheaper too. (I am just bringing this, but I personally chose the K-1 road too).

[The Mean Lady 604]

That's a very good point. But he wasn't working in the US, so even if he has to fill, he shouldn't pay any taxes right?

And I am not sure the immigration officers will care about taxes. But they will probably care that if he spend 6 months in the US again, he is definitely living here on a tourist visa.

To the OP, I would say:

• Congratulations on your engagement!! I am so extaticly happy that DOMA is now history!
• Visiting him in august for 2 weeks, and have him visit later when he spent most of the year in France (more than 6 months) is definitely the safest way. This is what I would do in your situation. He could visit and everything could be ok, but if it doesn't and he is deported, you'll have this to explain for the K-1 visa. It is not such a big deal in itself, but it will add pressure and stress on you guys. This process is very stressful, so my advice is always to do anything possible to not add any unnecessary stress to it
• Yes, he should say he is visiting his fiancé. That would be very confusing for customs officers if he didn't say so and then they found out...They would be suspicious.
• If you haven't fill I-129F yet, have you considered just getting married and then go the CR-1 route? It is almost the same processing time (so same separation time) but at least once he get in the US, he will have a GC... so he won't have to sit around for 3 months waiting for a work authorization. And it is a bit cheaper too. (I am just bringing this, but I personally chose the K-1 road too).

Getting a standard deny for entry has no impact whatsoever on the visa process.

My husband has been denied entry probably 5 or 6 times.

You are not "deported"

You are simply denied entry.

Oh, and my husband was denied entry based on "intent to immigrate"

Not true, but that's how they've seen it for 4 years.

Edited July 1, 2013 by KDH

[CaroSL 68]

Getting a standard deny for entry has no impact whatsoever on the visa process.

My husband has been denied entry probably 5 or 6 times.

You are not "deported"

You are simply denied entry.

Oh, and my husband was denied entry based on "intent to immigrate"

Not true, but that's how they've seen it for 4 years.

Oh ok good to know. It doesn't show up anywhere? It is not brought up at the interview?

I knew deported was not the right word... I was incapable of finding it...

[The Mean Lady 604]

Oh ok good to know. It doesn't show up anywhere? It is not brought up at the interview?

I knew deported was not the right word... I was incapable of finding it...

I don't know about K1, but for CR1, I believe there was a question in our IV packet asking about denials to the US, but all they're trying to do is figure out who you are.

I highly doubt it will come up in my husband's interview but I wouldn't be able to say for sure until the 17th.

[Dave&Roza 748]

Oh ok good to know. It doesn't show up anywhere? It is not brought up at the interview?

I knew deported was not the right word... I was incapable of finding it...

When you begin the visa process there is a place on the forms where it asks for all visa denials. You just put that information there. My wife had a denial we listed. As long as you tell the truth at all stages you will be okay. I hope those that are saying you will be alright are correct, but your fiance was already taken into secondary. I guess it will boil down to either he wil be allowed entry for the 2 weeks or he won't. My vote is that he won't based on what you have said.

As far as the tax situation, he is making money outside the US and can claim the foreign tax exclusion. This is one of those issues that is debated here on VJ about LPR and USC living and working abroad. He may be required to FILE a tax return, but he owes no taxes. So the IRS will not come after him. Now the USCIS MIGHT want to see his tax retuns from those years or an explaination as to why he was not required to file. So the tax issue should be looked into just to cover all bases.

Good luck,

Dave

[The Mean Lady 604]

When you begin the visa process there is a place on the forms where it asks for all visa denials. You just put that information there. My wife had a denial we listed. As long as you tell the truth at all stages you will be okay. I hope those that are saying you will be alright are correct, but your fiance was already taken into secondary. I guess it will boil down to either he wil be allowed entry for the 2 weeks or he won't. My vote is that he won't based on what you have said.

As far as the tax situation, he is making money outside the US and can claim the foreign tax exclusion. This is one of those issues that is debated here on VJ about LPR and USC living and working abroad. He may be required to FILE a tax return, but he owes no taxes. So the IRS will not come after him. Now the USCIS MIGHT want to see his tax retuns from those years or an explaination as to why he was not required to file. So the tax issue should be looked into just to cover all bases.

Good luck,

Dave

We're not talking about a visa denial, we're talking about entry denial.

[CaroSL 68]

I don't know about K1, but for CR1, I believe there was a question in our IV packet asking about denials to the US, but all they're trying to do is figure out who you are.

I highly doubt it will come up in my husband's interview but I wouldn't be able to say for sure until the 17th.

Ok. Anyway, I am not saying it is a big deal, I really don't think it is. I am just saying it adds up stress.

Dave, FYI, being taken to secondary once doesn't mean it will necessarily happen again, even if it is very likely in this situation.

Edited July 1, 2013 by CaroSL

[Dave&Roza 748]

We're not talking about a visa denial, we're talking about entry denial.

Question 35 on the DS-156 form "Has your visa ever been cancelled or revoked?" I would say that being denied entry would warant a 'Yes" response and then you put on a seperate sheet of paper the reason for the visa being cancelled or revoked. "Denied entry to the US on xx/xx/xxxx because of immigration intent".

Dave

Edited July 1, 2013 by Dave&Roza

[The Mean Lady 604]

Ok. Anyway, I am not saying it is a big deal. I am just saying it adds up stress.

FYI, being taken to secondary once doesn't mean it will necessarily happen again, even if it is very likely in this situation.

Correct, unless you get denied for intent to immigrate, then you're pretty much always pegged for secondary.

Like my husband! YAY. not. -__-

Edited July 1, 2013 by KDH

[gotham10011 1]

Sorry be such a wet blanket,

Don't be! I am really impressed that people give us an honest opinion. We are prepared he will be denied entry.

And yes, visiting after at least 6 months is better.

It's sad and annoying but I really can't travel in August or later. Frenchies got 5 weeks off a year! WoW.

I just started a new job, I like it and it's gonna help me supporting us for those 3 months waiting for EAD if we need to.

I believe IOs, even more those in secondary (they do have more time) are not heartless and don't necessary love denied entry.

Once again, his immigration history is "suspicious" but make sense while DoMA was enforced.

It's really nice to take part in this forum, I do appreciate it, really.

[gotham10011 1]

To the OP, I would say:

• Congratulations on your engagement!! I am so extaticly happy that DOMA is now history!

That will be très parfait!

Let's not be that optimistic though !