Filing for AoS with imminent prospect of temporary stay abroad

[spiritof1776 0]

Hi everyone,

I am a student in F-1 status, graduating in May. My fiancée is a US citizen. Our wedding takes place in late May.

We had planned to stay in the US for the foreseeable future, however my fiancée recently received an offer for a prestigious fellowship abroad (in Germany). It begins in July and lasts 11 months. We would both like to move out together for that duration then come back to the US immediately afterwards.

It seems what we will probably need to do is get married, stay in the US without filing anything (I will have already applied for an EAD under OPT so should be able to work in June if it comes through in time), then file a standalone I-130 with USCIS in the US from abroad. (We would love to file via DCF but it's unclear whether that's available. It seems available only if my spouse-to-be has permanent residence in Germany, which she may qualify for, but we probably need her to claim domicile in the US for the I-864 as I understand it, so I'm not sure you can claim both.)

Clearly that entails the risk of not having the CR-1 visa in time for the move back 11 months later. So I was wondering whether we should arrange a civil wedding ASAP and then file I-130 with I-485 next week. Ideally it would all go so quickly that we got the interview before leaving in July, and I could perhaps even file for I-131/AP to cover the extended temporary absence(?). That seems pretty unlikely though. So my fundamental question is, what happens if we get married, file I-130 and I-485 (AOS), but then move abroad before we get the interview? Do we have to start from scratch, or does it confer any advantage versus just waiting until we get to Germany?

Any other advice also much appreciated, of course. If it looks like the immigration situation is going to be a nightmare we may even decline or seek to postpone the fellowship.

[milimelo 4,268]

Under your circumstances, I wouldn't do AOS - waste of money. Only do I-130. You can delay submission of documents to NVC for a year and time it so it works out and you have your interview couple of months before your return to the US.

[spiritof1776 0]

Ah OK that sounds like a possible solution, thanks!

So if I understood correctly:

• we would file I-130 from within the US after our wedding in May, using our current US address (a rented apartment).
• A month or so afterwards we'd move to Germany and somehow notify USCIS of the change of address for both me (Germany) and my fiancée (her parents' address in the US, even though she would be with me in Germany).
  • (Another poster said international changes of address can't be done online, but someone else said there is a way of doing it somehow.)
• Five months or so after filing we'd get NOA2 (in the US), soon thereafter we'd get the forms from the NVC (in Germany), maybe we'd then wait around for a while (in order to time the interview to take place a couple of months before our return), then we'd submit the documents and ultimately have the interview in Germany.

Is that all correct? (I am thinking that giving the US address for my fiancée would be better since she would be claiming US domicile.)

If so it seems like it would gain us an extra month or so versus waiting to file from Germany in July, so worth doing if DCF is not available, not worth doing if it is. Does that sound right?

Thanks!

[spiritof1776 0]

A quick thought since understandably no one has yet replied to my last post: I suppose this doesn't belong in the AOS forum any more. Perhaps an admin could move the thread into the IR-1/CR-1 Process forum? Thanks!

[NikLR 13,220]

You already are in the IR1 forum. LOL

So you are not doing the AOS like mentioned in the first post?

[Ontarkie 13,978]

~~Moved to What Visa Do I Need - Family Based Immigration, from IR-1 / CR-1 Spouse Visa Process & Procedures~~

[Darnell 8,478]

I suggest something else, a little twisted from what you've studied so far about this wonderful slog of an immigration process.

If'n you two are going to live together more than 6 months in Germany, I strongly suggest you learn about Direct Consular Filing for Frankfurt, plan accordingly !! [learn the difference between proving up domicile vs proving up the re-establishment of domicile for that -864]

Edited March 31, 2014 by Darnell

[spiritof1776 0]

Thanks everyone. Yes, it seems like DCF in Frankfurt would be the best option if it is available to us. We'll meet the I-864 criteria for maintaining domicile in the US (the fellowship is temporary, for a defined period, we'll have documentation). The only real question is whether that precludes us from DCF in Frankfurt. Here are the rules from the German embassy website:

U.S. citizens whose principal residence is not in Germany, and/or are abroad temporarily as a visitor or on business, must file the petition in the United States.

So that suggests that if we claim domicile (aka principal residence) in the US, we cannot use DCF. But I suspect/hope that is not the case, and we have emailed the USCIS Frankfurt office to clarify. Alternatively I suppose we could claim domicile in Germany and establish intent to move back to the US, if that's what it takes to use DCF.

[JE57 239]

I agree with DCF filing as being the best way... Note that my studies on this topic have shown that Domicile and Residence are two very distinctly different legal words. Your Financee would meet the legal requirements of Residence in Germany if she can prove she resides there... That can be done via a work visa and/or a Lease for an Apt. I am assumming as a UK citizen you would have no issue staying with her for up to the 11 months without a visa as it's europe. Domicile in the USA is proven by showing that her 'roots' are in the USA. She has a job to come back to in the USA, she has plans to establish a US address in the future, maybe keeps bank accounts in the USA, anything that shows her 'roots' are in the USA. It sounds to me like you have hit the immigration jackpot with the ability to do DCF and not have to spend any time apart. - NOTE like other members on this forum I am not a lawyer and I offer advice based on my research, your most sure answer is to pay the money and consult an immigration attorney. But, it sounds like you are in a good place that many on hear will envey :-) Best luck to both of you.

[spiritof1776 0]

Haha, thanks JOEQ (and everyone in the VJ community for your kind support!). You're right, based on all the info we have so far we feel very fortunate.

Yes, thanks for clarifying residence vs domicile, they are of course different. I think it was maybe this helpful post (by an immigration lawyer) that made me think principal residence = domicile (based on the State Department guidance that is quoted). In turn, the US Embassy in Germany's website guidance (quoted in my earlier post) says that if your principal residence is not in Germany you can't use DCF. But my sense is that in this case, we probably can have our cake and eat it, in the sense that we should meet the US embassy's requirements to file in Germany based on our German paperwork, and we should also be able to meet the I-864 requirements based on the temporary nature of the fellowship in Germany (and continued bank accounts etc. in the US), without the two interacting. Hope that makes sense!

FWIW, we did pay a lawyer $150 for a 30-min call yesterday morning. He basically told us to stop worrying about the I-864 domicile requirement, and that he would need to check on our eligibility for DCF in Germany by doing further research. He's now asked for an additional $200 to do this research. I'm not inclined to agree though—can't imagine that research would be anything different to the research I've already done!

[NikLR 13,220]

I can't imagine this lawyer is worth anything if he won't do a free initial consultation.

Research on your own! I agree.