Emergency: spouse denied on flight, can I immigrate before she arrives?

[From_CAN_2_US 1,097]

2 hours ago, Gabriel5454 said:

I have read the IR1 guidelines carefully, and the USC needs to be resident and have established (or intend to establish) domicile in the US.  That is not the same as saying they need to be in the US at the exact moment the foreign spouse passed through a POE. 

I think this is the most important distinction being made here.

 

The intent behind the rule that the USC sponsor must be in the US or accompany the beneficiary is that the visa is issued for USC to reunify with their non-USC spouse or to avoid separation from their non-USC spouse. When the USC lives abroad, but the beneficiary moves to US it defeats the purpose of the visa.

 

In this situation the USC is residing (established domicile) in the US and the beneficiary is moving from Hong Kong to join them. It just so happens that the USC is temporarily out of the country.

 

Not 100% certain, but I think in this case OP might be just fine going straight to the US while his wife is temporarily detained elsewhere.

Edited January 30, 2022 by From_CAN_2_US

[Ryan H 3,791]

Moved from Progress Reports to Process & Procedures.

[pushbrk 12,157]

1 hour ago, From_CAN_2_US said:

I think this is the most important distinction being made here.

 

The intent behind the rule that the USC sponsor must be in the US or accompany the beneficiary is that the visa is issued for USC to reunify with their non-USC spouse or to avoid separation from their non-USC spouse. When the USC lives abroad, but the beneficiary moves to US it defeats the purpose of the visa.

 

In this situation the USC is residing (established domicile) in the US and the beneficiary is moving from Hong Kong to join them. It just so happens that the USC is temporarily out of the country.

 

Not 100% certain, but I think in this case OP might be just fine going straight to the US while his wife is temporarily detained elsewhere.

Yes.  I'm coming into this late because it was in another forum and just got moved.  It's not clear to me whether the US Citizen is simply out of the US temporarily, or THIS is the trip where they are returning to the US after living abroad.  If the USC has already moved back to the US or always lived in the US, this is really not a problem.  If asked where their spouse is, they can answer, "lives wherever they live and currently in route back home from wherever they are".

 

The OP seems pretty knowledgeable though, so I'm guessing the intent is for the repatriation and immigration to be simultaneous.

[From_CAN_2_US 1,097]

1 hour ago, pushbrk said:

Yes.  I'm coming into this late because it was in another forum and just got moved.  It's not clear to me whether the US Citizen is simply out of the US temporarily, or THIS is the trip where they are returning to the US after living abroad.  If the USC has already moved back to the US or always lived in the US, this is really not a problem.  If asked where their spouse is, they can answer, "lives wherever they live and currently in route back home from wherever they are".

 

The OP seems pretty knowledgeable though, so I'm guessing the intent is for the repatriation and immigration to be simultaneous.

Thanks for chiming in…

 

OP seems to have a plan so the discussion is for academic purposes at this point. But I believe OP mentioned earlier on this thread that the wife is away on a work trip. 

[Redro 4,601]

19 minutes ago, From_CAN_2_US said:

Thanks for chiming in…

 

OP seems to have a plan so the discussion is for academic purposes at this point. But I believe OP mentioned earlier on this thread that the wife is away on a work trip. 

Reading previous posts from OP.

They applied for DCF in June as the wife's job  was transferring her back to the States (I assume they were successful as his visa expires in 3 weeks). 

Not sure if the work trip was out of the HK office or the US office. And not sure if the wife has already relocated but I'm thinking this is the first time she's flying back.

He would have probably been fine but better to be safe and enter the US at the same time or have the wife enter before him.

 

Edited January 30, 2022 by Kor2USA

[Simplytex 387]

1 hour ago, pushbrk said:

Yes.  I'm coming into this late because it was in another forum and just got moved.  It's not clear to me whether the US Citizen is simply out of the US temporarily, or THIS is the trip where they are returning to the US after living abroad.  If the USC has already moved back to the US or always lived in the US, this is really not a problem.  If asked where their spouse is, they can answer, "lives wherever they live and currently in route back home from wherever they are".

 

The OP seems pretty knowledgeable though, so I'm guessing the intent is for the repatriation and immigration to be simultaneous.

Exactly - the immigrant spouse can truthfully say that the citizen spouse is domiciled at XYZ location.

I couldn't ever imagine that this rule would be that the citizen spouse has to physically be located in the US at the exact moment that the immigrant spouse is. Can you imagine if you had a work trip and had to travel for a week or two out of country? I think there is a lot of misunderstanding going on in this thread. 

[SalishSea 16,827]

7 minutes ago, Simplytex said:

Exactly - the immigrant spouse can truthfully say that the citizen spouse is domiciled at XYZ location.

I couldn't ever imagine that this rule would be that the citizen spouse has to physically be located in the US at the exact moment that the immigrant spouse is. Can you imagine if you had a work trip and had to travel for a week or two out of country? I think there is a lot of misunderstanding going on in this thread. 

I don't see the misunderstanding.

 

The context in which it is understood that the USC must fly in with or before the intending immigrant is exactly as referenced by myself and others in this thread: when the couple or family have been living overseas together, and are now flying home.  The immigrant uses that one-time CR/IR visa at POE, and receives the 551 LPR stamp.  This process cannot happen if the USC spouse is still living overseas, or is planning to arrive to the US later.  

 

If indeed the OP's spouse has been living in the US and is simply away on business when he is due to arrive, that's a different scenario.

Edited January 30, 2022 by Jorgedig

[Simplytex 387]

@Jorgedig that's what I mean though. If anyone reads this thread on face value without knowing OP's history, then it simply reads as anyone entering on IR1 visa, not couples who have non-US domiciled and are (re) establishing it in the US. 

From OP: "I know the idea is that IR1 visa holders have to come to the US with or after the USC spouse."

 

So to others who might read this thread there are two situations being described:

1) US spouse and immigrant spouse have both been living abroad - then they must enter at the same time (or US spouse before )

2) US spouse lives in the US, but happens to be out of country at the time immigrant is coming to the US - no problem.

 

In this case, from your other reply in the thread ("When arriving on a CR/IR visa (vs green card), the USC is required to arrive with or before the intending immigrant"), I just want to make sure I understood it correctly, that OP was dealing with situation #1.

[iwannaplay54 985]

I think this may be an application of the DCF requirement that the USC precede or accompany the immigrant spouse when re-establishing residence in the US.

 

If OP’s wife already has an established residence in the US it doesnt make a difference one way or the other where his wife is when he arrives.

 

In the case of DCF the rules as outlined to us were clear:  USC to precede (arrive before) or accompany (arrive with) the immigrant.  OP is right to be concerned here.
 

 

3 hours ago, Simplytex said:

@Jorgedig that's what I mean though. If anyone reads this thread on face value without knowing OP's history, then it simply reads as anyone entering on IR1 visa, not couples who have non-US domiciled and are (re) establishing it in the US. 

From OP: "I know the idea is that IR1 visa holders have to come to the US with or after the USC spouse."

 

So to others who might read this thread there are two situations being described:

1) US spouse and immigrant spouse have both been living abroad - then they must enter at the same time (or US spouse before )

2) US spouse lives in the US, but happens to be out of country at the time immigrant is coming to the US - no problem.

 

In this case, from your other reply in the thread ("When arriving on a CR/IR visa (vs green card), the USC is required to arrive with or before the intending immigrant"), I just want to make sure I understood it correctly, that OP was dealing with situation #1.

Correct

Edited January 30, 2022 by iwannaplay54

[iwannaplay54 985]

3 hours ago, Jorgedig said:

I don't see the misunderstanding.

 

The context in which it is understood that the USC must fly in with or before the intending immigrant is exactly as referenced by myself and others in this thread: when the couple or family have been living overseas together, and are now flying home.  The immigrant uses that one-time CR/IR visa at POE, and receives the 551 LPR stamp.  This process cannot happen if the USC spouse is still living overseas, or is planning to arrive to the US later.  

 

If indeed the OP's spouse has been living in the US and is simply away on business when he is due to arrive, that's a different scenario.

Correct 👍

That DCF rule got hammered on us, and probably on OP, at the interview

[pushbrk 12,157]

2 hours ago, iwannaplay54 said:

Correct 👍

That DCF rule got hammered on us, and probably on OP, at the interview

It's not a DCF rule.  If the USC  has already relocated to the USA, and is simply on a business trip abroad, there is NO PROBLEM.  We don't know the actual circumstances though.

[iwannaplay54 985]

43 minutes ago, pushbrk said:

It's not a DCF rule.  If the USC  has already relocated to the USA, and is simply on a business trip abroad, there is NO PROBLEM.  We don't know the actual circumstances though.

That’s what “precede” means and that is what I said

If the USC already has an established residence in the US it doesnt make a difference one way or another.

Find someone else to bully today.  I’m frankly tired of it.

 

Edited January 30, 2022 by iwannaplay54

[Redro 4,601]

8 hours ago, Simplytex said:

@Jorgedig that's what I mean though. If anyone reads this thread on face value without knowing OP's history, then it simply reads as anyone entering on IR1 visa, not couples who have non-US domiciled and are (re) establishing it in the US. 

From OP: "I know the idea is that IR1 visa holders have to come to the US with or after the USC spouse."

 

So to others who might read this thread there are two situations being described:

1) US spouse and immigrant spouse have both been living abroad - then they must enter at the same time (or US spouse before )

2) US spouse lives in the US, but happens to be out of country at the time immigrant is coming to the US - no problem.

 

In this case, from your other reply in the thread ("When arriving on a CR/IR visa (vs green card), the USC is required to arrive with or before the intending immigrant"), I just want to make sure I understood it correctly, that OP was dealing with situation #1.

For those of us living abroad with our partners I don't think reading the OP comes across as anything but situation #1.

My husband and I are fully aware he needs to re-establish domicile before I fly to the US to activate my visa. And all of our friends who've moved from Korea back to the US have made sure to fly to the US together after receiving the visa even if they plan to return to Korea for a few more months to tie up loose ends. 

Listen to @iwannaplay54 as they've moved back to the US with their partner and if you read OPs old posts it seems like they were living in HK together before he started his journey back to the US. 

 

[iwannaplay54 985]

3 minutes ago, Kor2USA said:

For those of us living abroad with our partners I don't think reading the OP comes across as anything but situation #1.

My husband and I are fully aware he needs to re-establish domicile before I fly to the US to activate my visa. And all of our friends who've moved from Korea back to the US have made sure to fly to the US together after receiving the visa even if they plan to return to Korea for a few more months to tie up loose ends. 

Listen to @iwannaplay54 as they've moved back to the US with their partner and if you read OPs old posts it seems like they were living in HK together before he started his journey back to the US. 

 

We moved back to the US (twice) after living abroad.  Both times it was required that I accompany her since I did not leave or arrive in the US before she did. 
I was assuming OP was in the same situation.  
The second time we did have to return overseas for a few weeks to tie up loose ends but the rules (as they were explained to us) seemed to be pretty explicit on that initial entry.

Edited January 30, 2022 by iwannaplay54

[Redro 4,601]

4 minutes ago, iwannaplay54 said:

We moved back to the US (twice) after living abroad.  Both times it was required that I accompany her since I did not leave or arrive in the US before she did. 
I was assuming OP was in the same situation.  

Yep. I'm fairly sure OP did DCF. They were living in HK together and had lived in the US before he gave up his initial GC. Their situation sounds similar to yours... 

Edited January 30, 2022 by Kor2USA