poe Does my husband need to enter US with me or can he come after me?

[Moonsailor 0]

My husband is a US citizen and we have been living outside of the US for about a year.  We recently got my CR1 visa approved at a local embassy.  My job in the US starts in July so I'm going back to the US (been there before as a student) in a week or so.  His scholarship abroad won't end till mid-July so he plans to join me then.  

 

My question:  Can I enter a POE on my own and him joining me a month later? 

 

We did ask this question to the embassy, which we were told that the visa was for me, so it doesn't matter when he enters.  I know that spouse of a green card holder has to enter after or with the permanent resident (my husband is a citizen by birth), and I did not find such a rule for spouse of US citizen.  Our situation is a bit unique (with his scholarship requirement), and any help or if you had a similar experience would be very helpful!

 

Thank you!

Edited June 10, 2017 by Moonsailor

[f f 725]

I think that with the cr1/ir1 visas the usc must either already be in the us or entering at the same time as the immigrant. it had something to do with the visa is for bringing Fama lies together therefore the usc must be there already. I may be wrong but I remember reading it somewhere. I would call cbp to make sure your plans are ok.

[Cyberfx1024 7,980]

He can come later and there won't be any problem at all.

[Moonsailor 0]

42 minutes ago, f f said:

I think that with the cr1/ir1 visas the usc must either already be in the us or entering at the same time as the immigrant. it had something to do with the visa is for bringing Fama lies together therefore the usc must be there already. I may be wrong but I remember reading it somewhere. I would call cbp to make sure your plans are ok.

f  f,

 

Do you mean "You are required to enter the United States before the expiration date printed on your visa. When traveling, the primary (or principal) applicant must enter the United States before or at the same time as family members holding visas."  (This is from the state website under "Travel": https://travel.state.gov/content/visas/en/immigrate/family/family-preference.html)

 

My understanding of this paragraph is that it means if I bring my family into the U.S. (since I'm the primary/principal applicant here and my husband is my sponsor, not the applicant), I would need to be in the U.S. before or at the same time. 

 

We called Atlanta's CBP and they said as long as I don't have a "FTJ" on my visa (which I do not), I should be okay to travel on my own.  I'm going through the broader through west coast though, so I guess we will call my POE to confirm.  Thank you for your advice!

[f f 725]

that was probably it. glad you don't need to worry about it.

[mallafri76 1,012]

 

3 hours ago, f f said:

that was probably it. glad you don't need to worry about it.

No, you were right the first time around. 😊 The spousal visa is for family reunification and according to INA, the USC petitioner must enter the US before or on the same day as the foreign spouse, with a few exceptions such as active military duty.

 

I'm sure there are people who either don't know that or ignore it, just like some people get away with entering the US with the intent to stay and adjust status, even though that's fraud. But why risk it? 

[Moonsailor 0]

1 hour ago, mallafri76 said:

 

No, you were right the first time around. 😊 The spousal visa is for family reunification and according to INA, the USC petitioner must enter the US before or on the same day as the foreign spouse, with a few exceptions such as active military duty.

 

I'm sure there are people who either don't know that or ignore it, just like some people get away with entering the US with the intent to stay and adjust status, even though that's fraud. But why risk it? 

mallafri76, do you now which act in INA speaks about this?  Sorry I couldn't find it on https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/act.html

 

 

[pushbrk 12,979]

17 hours ago, mallafri76 said:

 

No, you were right the first time around. 😊 The spousal visa is for family reunification and according to INA, the USC petitioner must enter the US before or on the same day as the foreign spouse, with a few exceptions such as active military duty.

 

I'm sure there are people who either don't know that or ignore it, just like some people get away with entering the US with the intent to stay and adjust status, even though that's fraud. But why risk it? 

This is the correct answer.  It has nothing to do with any other family members immigrating.  While many immigrant visa holders travel alone BECAUSE the petitioner is already in the US, the terms of any spouse visa require the Petitioner enter the US before or at the same time as the immigrating spouse.  Whether your husband stays in the US or leaves to finish business or work abroad is your own business, but to attempt to enter before he enters could get your entry denied at the POE.

 

To be clear, asking the CBP about traveling alone is the wrong question.  The issue is your entrance before the Petitioner, not just traveling alone.  If the CBP agent at the POE becomes aware you are attempting to enter the US prior to the Petitioner, they are required to deny entry.

[Moonsailor 0]

1 hour ago, pushbrk said:

This is the correct answer.  It has nothing to do with any other family members immigrating.  While many immigrant visa holders travel alone BECAUSE the petitioner is already in the US, the terms of any spouse visa require the Petitioner enter the US before or at the same time as the immigrating spouse.  Whether your husband stays in the US or leaves to finish business or work abroad is your own business, but to attempt to enter before he enters could get your entry denied at the POE.

 

To be clear, asking the CBP about traveling alone is the wrong question.  The issue is your entrance before the Petitioner, not just traveling alone.  If the CBP agent at the POE becomes aware you are attempting to enter the US prior to the Petitioner, they are required to deny entry.

We will certainly make plan changes if this is the case.  What terms do you mean about the spouse visa? Any specifics? We checked the INA, affidavit of support (and according to its definition my husband meet the domicile criteria), and other documents we signed.  

 

To be clear, we did not ask CBP about "traveling alone".  We gave them our case number, my passport number, the situation, and my husband asked if he could come later and me entering the US first.  It was the official who asked if I had a FTJ on my visa or not and if not, according to him, I could travel alone and he could come later. 

 

We will confirm this with CBP at my POE tomorrow.  

[pushbrk 12,979]

Please tell us what they say.  Perhaps my understanding needs correction.

[Moonsailor 0]

40 minutes ago, pushbrk said:

Please tell us what they say.  Perhaps my understanding needs correction.

Will do!

 

After reading all the laws and rules, my understanding is that it has to do with the sponsor's domicile. 

 

On state department's website (https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/support/i-864-series-forms-faqs.html), it says this about if a sponsor does not have domicile in the U.S.:

 

When a sponsor has clearly not maintained a domicile in the United States, he/she must re-establish a U.S. domicile to be a sponsor. The aspiring sponsor may take steps, including the examples given below, to show that the United States is his/her principal place of residence

• Find employment in the United States
• Secure a residence in the United States
• Register children in U.S. schools
• Relinquish residence abroad
• Other evidence of a U.S. residence

If the sponsor establishes U.S. domicile, it is not necessary for the sponsor to go to the United States before the sponsored family members. However, the sponsor must return to the United States to live before the sponsored immigrant may enter the United States. The sponsored immigrant must enter the United States with or after the sponsor.

Similarly, on INA, act 213, it says that sponsored immigrant should be denied entry if the sponsor does not have domicile:

 

If the sponsor is not domiciled in the United States, the sponsor can still sign and submit an affidavit of support so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant's admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the immigration officer or immigration judge must deny the intending immigrant's application for admission or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal intending immigrant's application for admission or adjustment of status. In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the pri ncipal intending immigrant's arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph, unless the sponsor is also a permanent resident alien and the sponsor's own application for admission is denied and the sponsor leaves the United States under a removal order or as a result of the sponsor's withdrawal of the application for admission.

 

So in summary, if the sponsor has domicile in the U.S., as stated on the state department website, no matter where they are (e.g., business trip, short travel, or employed abroad), they do not need to enter the US before the sponsored immigrant.  If they do not have domicile, however, they cannot be a sponsor (also see state department's website), though they can re-establish their domicile to sponsor. 

 

So the question is what counts as domicile?

 

This question was well-addressed on the 864 form as well as state website as shown below:

What kinds of employment abroad can be counted as U.S. domicile?

• Employment temporarily stationed abroad with the U.S. government
• Employment temporarily stationed abroad with a U.S. institution of research recognized by the Attorney General
• Employment temporarily stationed abroad with a U.S. firm or corporation or its subsidiary engaged in whole or in part in the development of foreign trade and commerce with the United States
• Employment temporarily stationed abroad with a public international organization in which the United States participates by treaty or statute
• Employment temporarily stationed abroad with a religious denomination/group having a genuine organization within the United States.
• Employment temporarily stationed abroad as a missionary by a religious denomination/group or by an interdenominational mission organization within the United States

There may be other circumstances in which a sponsor can show that his or her presence abroad is of a temporary nature, and the sponsor has a domicile in the United States. The sponsor must satisfy the consular officer that he/she has not given up his/her domicile in the United States and established his/her domicile abroad.

 

In our case, my husband and I are both abroad for research.  His research fund was through Department of State and a major research university, so it counts as domicile in the US.  In many others cases, actually in most cases, the sponsors also have maintained domicile in various ways (e.g., keeping a permanent mailing address, paying taxes, voting, etc.) so they also do not need to enter with or before their sponsored immigrants, since they do not establish their domicile in the US again. 

 

Again, will confirm with CBP at my POE again tomorrow.  Thanks everyone for your diverse opinions!

[pushbrk 12,979]

Now that I understand your husband IS domiciled in the US rather than that he simply provided sufficient evidence of intent to re-establish domicile, I'm sure you're fine to enter before he does.  However, if he was not already domiciled in the USA, then you would not,  Even so, your visa would not be stamped FTJ, because you are not following to join another immigrant.  What may be true is that unless the visa is stamped FTJ, the CBP at the POE may simply not ask or care about the petitioner in an IR1 or CR1 case.