Unusual K3/IR-1 Application Question

[selly 0]

I went through the K-1 process and received my full residency in 2010. Due to problems finding suitable work etc, I found myself working overseas for most of the year. For a whole host of reasons, my wife and I decided to firstly move back to the UK and then surrender my residency. I still work overseas, but my wife has moved back to the USA where we are once again settled back in our original home. I however, now visit on the visa waiver system during my time off, as I actually get more benefit that way than if I made use of the overseas tax exemption rules in the USA. Least of all I can come home more than 31 days a year without getting slammed for taxes. I will pretty soon be ending my overseas working and will settle down to a steady not so stressful job back in the USA.

My question is this, although I gave up my US residency, and my home is still in the USA, can we apply and complete our request completely within the USA, ie without needing to travel back to the UK to process? We/I have left the UK, and do not have any property or reside there what so ever.

[NikLR 13,220]

So you are residing in the USA?

Or are you personally residing in the UK?

I mean you, not your family as a whole.

[selly 0]

To be precise, I work overseas for 12 weeks at a time and then go to my home in the USA for my three weeks off. All of my possessions are in the USA, I rarely if ever return to the UK and if I do I stay with relatives. So in effect my three weeks are vacation time, hence the use of the visa waiver program.

[NikLR 13,220]

Okay well because you do not currently reside in the USA, you visit, then you have to do the entire process in the UK. The US government doesn't care that you gave up your home and have to wait it out. (Sucks, but it is what it is right?) It is immigration fraud to visit with your VWP and intend to immigrate because to do so you'd have to lie to the CBP so that rules out AOS (plus you're still working and need to return to the UK to do so.)

No you will not be able to do any of the process in the USA and you'll have to do the medical and interview in London. Yes you can continue to visit using the VWP. Had you guys realized that you both wanted to live in the USA you could have done DCF and moved back together but maybe that wasn't feasible at the time.

[lost_at_sea 995]

To be precise, I work overseas for 12 weeks at a time and then go to my home in the USA for my three weeks off. All of my possessions are in the USA, I rarely if ever return to the UK and if I do I stay with relatives. So in effect my three weeks are vacation time, hence the use of the visa waiver program.

Where do you live overseas for the 12 weeks?

NLR is right - you'll have to file overseas and do the interview and medical from there. The VWP is not for the purposes of being a resident in the USA.

Edited May 12, 2015 by lost_at_sea

[Boiler 43,392]

Why not interview where you work?

Ohh there are issues with the VWP as you need to have a residency you will be returning to but I guess you have got away with it so far.

[selly 0]

Folks, I'm very aware of what the VWP program is for, I'm using it right now for that very purpose, ie vacations. As I've gone through the process once before I am fairly au fait with the general process, I had heard previously about conducting the process if you were already in the country.

As I am not travelling to the USA to get married to get the visa and already have a residence there, you could I suppose class me as a non resident, resident. As for applying in my country of employment, it is not an option, firstly its in the middle of the Sahara Desert and secondly, my status in that country would preclude the ability to process there too.

[lost_at_sea 995]

You're not a legal US resident.

The only in-country process is the one you already know about and did before (AOS).

Edited May 12, 2015 by lost_at_sea

[Boiler 43,392]

Call yourself a non resident resident and you will be on the next flight out.

[selly 0]

Call yourself a non resident resident and you will be on the next flight out.

I would highly recommend you stop offering advice after that unsubstantiated tripe! That is condescending in the extreme and given the good advice I've seen on this site before, certainly not worthy of it. I've lived and travelled to and from the USA countless times since my K1 Visa in 2007, so when I see comments like this I have to wonder about people's take on reality...

Now I realise there will be more to the following information than first glance, I have managed to find this....

Get a Green Card While Inside the United States

One Step Process

Certain people are eligible to apply for a green card (permanent residence) while inside the United States. An immediate relative relationship allows you to apply on Form I-485, Application to Register Permanent Residence or Adjust Status, to become a permanent resident at the same time your U.S. citizen petitioner files Form I-130, Petition for Alien Relative.

Now I recognise that I will most likely not qualify as one of the 'certain people', but I believe this is where I remember seeing something about filing in the USA, so yes it is in fact possible. Note it is in the section 'while inside the USA', there is a separate section for 'outside of the USA'.

What I would say is, that perhaps folks if you are going to offer advice to people on here, make sure it has substance and try not to be dismissive, arrogant nor condescending. Some people make this journey their life's dream and they don't deserve to receive advice based on assumptions or your take on what you think of their circumstances. Their command of English might be poor, indeed their education level might not be that high, but the one thing they deserve is a little respect and recognition of the fact that they are making that journey. Advice should be based on fact and not on assumptions, if you cant be respectful and offer facts, then perhaps it's best that you keep quiet. Rant Over!

[selly 0]

Okay well because you do not currently reside in the USA, you visit, then you have to do the entire process in the UK. The US government doesn't care that you gave up your home and have to wait it out. (Sucks, but it is what it is right?) It is immigration fraud to visit with your VWP and intend to immigrate because to do so you'd have to lie to the CBP so that rules out AOS (plus you're still working and need to return to the UK to do so.)

No you will not be able to do any of the process in the USA and you'll have to do the medical and interview in London. Yes you can continue to visit using the VWP. Had you guys realized that you both wanted to live in the USA you could have done DCF and moved back together but maybe that wasn't feasible at the time.

Sound advice NLR. No problem or concerns about VWP visa fraud as I have no intention of make a rod for my own back. I use it as it is intended to be used, for vacations to see my wife and our family, nothing more nothing less.

[Boiler 43,392]

ESTA/VWP requires you to have a residence which you will be returning to, pretty sure it asks what that residence is. Yet yours is in the US, seems unlikely that was what you put in?

As I am sure you are aware a common question on entry is what is the purpose of your visit?

So you tell the truth stay and adjust and what happens next?

[selly 0]

ESTA/VWP requires you to have a residence which you will be returning to, pretty sure it asks what that residence is. Yet yours is in the US, seems unlikely that was what you put in?

As I am sure you are aware a common question on entry is what is the purpose of your visit?

So you tell the truth stay and adjust and what happens next?

Boiler, as previously mentioned, my question was about getting residency while in the USA. It was not about how I use the VWP. Also as mentioned I have been travelling to and from the USA on a regular basis since I was granted my K1 in 2007. If I was about to commit visa fraud, which I am not, do you think I would be coming on here and asking a specific question? The way you are going on you are assuming I plan to walk up to the immigration officer and declare, 'hi, I just lied on my forms, and I plan to use this VW to stay in your country with the view to get married, oh do you want to hand cuff me now?' The whole point of this exercise is so that when I do finally return 'home', it is above board and all the 'I's have been dotted, and the 'T's' crossed, because, despite your condescending responses and dismissive attitude, I am a somewhat detailed person when it comes to legalities. Having been married to my US citizen wife happily since 2007, I can assure I have no intention of being as stupid as you seem determined to label me. I have plenty of time in which to research and prepare what and how we will go about the process, the start point was supposed to be to collect experiences and knowledge from this forum. Now as mentioned to you in my previous post, unless you can actually offer anything other than a condescending attitude, and an answer to the specific question, shut up.

[Boiler 43,392]

You are in the correct forum - IR1 Spouse Visa.

[aaron2020 11,651]

Sound advice NLR. No problem or concerns about VWP visa fraud as I have no intention of make a rod for my own back. I use it as it is intended to be used, for vacations to see my wife and our family, nothing more nothing less.

How do you reconcile having your home in the U.S. and visiting the U.S.? How does one "visit" one's primary resident? Are you "visiting your wife and children" or are you "returning home" as you stated in your first post?

Using the VWP requires a person to have a foreign home, not a primary residence in the U.S.

Since you feel you are not abusing the VWP, then tell CBP that you are entering to visit your primary residence where you live.

I'm not trying to be an #######. Just pointing out what may be a flaw in your assessment. I am trying to help you.

Look up Matter of Batista and Matter of Cavazos.

Edited May 13, 2015 by aaron2020