DCF London residency requirement

[lofty47 0]

From the checklist for the I-130 checklist (http://photos.state.gov/libraries/unitedkingdom/164203/dhs/i130-checklist_for_spouse.pdf):

'The US petitioner must provide evidence that he/she has permission to live and work in the United Kingdom. Submit a copy of one the following:

1. Valid UK residency card or stamp

2. If dual national, EU passport - photo page

3. US military PCS orders assigning you to the UK'

#2 is applicable to us, and there is no indication that utility bills/lease agreements/etc are required. So, it suggests that you don't need proof of actually living in the UK, you just need proof of permission to live here (so in my case, my partner's EU citizenship is proof of that permission).

I've emailed the embassy and they've not been very helpful. I think I'll seek legal advice on this before we submit the petition - if it works it'll make life a lot easier. I'll post my findings here

[werdnum 0]

I think that's pretty much my conclusion as well, and it (unfortunately) won't work for us since we can't move to the UK for filing - at least not until after the summer and even then it would mean pulling our daughters out of school until the visa was issued which isn't really an option.

Perhaps London will take pity on us, but as someone who used to work in a (British) embassy and knows how the visa sections operate there I have little optimism.

I understand why the process takes time for immigration of spouses - the flaunting of this system just to get people into the country on a green card - but for bona fide relationships, especially where children are concerned, it creates stress (I haven't slept properly for over 2 weeks) and breaking up a family for any length of time is a terrible shame.

If I were you, I would try to get your situation recognised as an emergency situation. It really doesn't seem right to split up your family and you probably have a strong argument for expedited consular processing regardless of residence – could mention the Convention on the Rights of the Child.

Note also that you could try filing in London – provided you don't actually *lie* in the application and certify that you live in the UK, the worst that can happen is that London says no. We won't go down that route because the alternative is not that bad, but in your case I can see how it would be justified.

Good luck!

[themoldy1 1]

I just got this reply from USCIS London:

• The USCIS Field Office can only accept I-130 petitions from U.S. citizens that are resident in the United Kingdom.
• Therefore, you will have to file your I-130 petition with the USCIS Chicago Lockbox using the instructions and forms on www.uscis.gov; click on Forms and the I-130.

The relevant wording would seem to be "...are resident..." not, e.g. '...entitled to be resident...'.

We will consider moving the family to the UK over the summer to establish residence at my parents' house.

[themoldy1 1]

Here's some information on what it takes to establish UK residency; this comes (unsurprisingly) from tax law. Whether the USCIS/London would actually test any of this is debatable!

Automatic UK tests

The three principal tests to determine if an individual will be automatically UK resident for a tax year are as follows

1. Present in the UK for 183 days or more during a tax year.

2. A home in the UK during all or part of the tax year where:

o The individual is present in the UK home for 30 days (consecutively of intermittently) during a tax year; and

o there is at least one period of 91 consecutive days where: (i) there is no overseas home; or (ii) an overseas home or homes that are each occupied for no more than 30 days in a year; and

o At least 30 days of the 91 day period falls within a specific tax year.>

3. An individual works full time in the UK for any period of 365 days and the following apply:

o There is no significant break from UK work;

o The total number of working days is measured by any 365 period where more than 75% of the days comprise more than 3 hours of work in the UK; and

o At least one day in the tax year is a day where more than 3 hours work is carried out in the UK.

If Automatic Test fail there is a ‘Sufficient Ties’ test:

Sufficient ties tests

Where the automatic tests do not determine conclusively whether an individual is resident or non-resident, the “sufficient ties” tests need to be considered and these are:

· Family

· Accommodation

· Substantive work in the UK

· Presence in the UK in the previous two tax years; and

· More days spent in the UK than any other country.

The weight attached to each of the ties is dependent on whether a person is arriving or leaving the UK. The number of days in the UK combined with the number of ties to the UK will then be evaluated to determine residence:

Days in UK

Resident in previous 3 years

Not resident in previous 3 years

Less than 16

Non-resident

Non-resident

More than 15 but less than 45

UK resident if 4 ties or more apply

Non-resident

More than 45 but less than 90

UK resident if 3 ties or more apply

UK resident if 4 ties or more apply

More than 90 but less than 120

UK resident if 2 ties or more apply

UK resident if 3 ties or more apply

More than 120

UK resident if 1 tie or more apply

UK resident if 2 ties or more apply

More than 183 days

Always resident

Always resident

[themoldy1 1]

I dug up a Policy Memorandum from the USCIS website:

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/August/Locally-Filed_I-130s_Interim_PM_Approved_for_Pubic_Comment_8-8-11.pdf

If you read it, there is a provision for an Embassy officer to request USCIS to locally process I-130 outside of the normal residency rules "when there are compelling humanitarian reasons to do so".

[werdnum 0]

I contacted USCIS in London yesterday regarding documentation. They replied very promptly and helpfully – asking me to send whatever document I had and saying he'd take a look at it and figure out if it worked or not.

However, once I told the official that I didn't live in the UK yet and was planning for a future filing, he soured quite quickly – his final email was, in its entirety: "ONLY a UK residency card is acceptable".

I'm not quite sure where this leaves us. I really don't fancy waiting 14 months for my wife's residency to come through – we're just finishing in Prague, so, apart from anything, we'd have to pick a country to sit and wait in. The UK residency card can take more than six months to issue (contrary to EU law), and I don't know about the other consulates (Vienna? Frankfurt? Rome? Athens?). We could always not actually get married, and file for a K-1, but that still puts her US visa back to the end of the year.

[Boiler 43,692]

You mention wife and K1.

Good idea not to cause confusion.

Seems logical otherwise.

[werdnum 0]

You mention wife and K1.

Good idea not to cause confusion.

Seems logical otherwise.

The plan right now is to get married in four weeks. So I suppose we could not sign the papers and get married in the US, but it's far from ideal.

[Boiler 43,692]

Ideal is not a word you see very often around here. Sounds like you have at least a few options.

[Pitaya 2,576]

~split thread to new post~