Activate LPR

[Auster 1]

Wife's IR-1 has recently been approved. We're both living in Australia, but planning to move to the US. We're not ready to move before it expires because of an unexpected work situation. It appears that it is not uncommon for visa-holders to pop in to a poe to activate LPR and then make their actual move within the next 12 months. Is that still a reasonable method? We have 3 kids so it would be a bit expensive, but I have read that the immigrant shouldn't enter before the citizen spouse. Is that accurate?

[Crazy Cat 45,425]

I would do that rather than letting the visa expire.  Yes, you can "activate" the visa, then leave.   You are correct that the sponsor/petitioner must enter either before or with the immigrant.

 

Note:  I would make the permanent move as soon as practical.

Edited yesterday at 11:07 AM by Crazy Cat

[S2N 492]

Also worth noting that while technically permitted 1 year outside the U.S. as an LPR, CBP starts getting angsty and asking questions at six months. I wouldn’t initially enter and then leave for longer than 120 days personally. Especially under the current administration.

Edited yesterday at 12:03 PM by S2N

[appleblossom 5,005]

38 minutes ago, S2N said:

Also worth noting that while technically permitted 1 year outside the U.S. as an LPR, CBP starts getting angsty and asking questions at six months. I wouldn’t initially enter and then leave for longer than 120 days personally. Especially under the current administration.

 

Ditto, I was just about to say the same thing, a year would be too long IMO. I'd also make sure I started making moves towards showing the US will be my permanent home when I entered for the first time on the visa i.e. get a bank account set up, driving licence, etc. Just in case it's needed at a later date. 

[S2N 492]

I would also avoid proactively volunteering that you haven’t decided a return date to CBP on initial entry. Obviously tell them the truth if asked, but they can deny entry on IR-1 for lack of immigrant intent. A visa is just permission from the consulate to request that CBP admits you under a specified class of admission.

[Crazy Cat 45,425]

2 minutes ago, S2N said:

but they can deny entry on IR-1 for lack of immigrant intent.

Good point.  That has actually happened.

[pushbrk 13,874]

Another confirmation that 12 months from first entry to actual relocation is dangerous.  Less than six months is preferred.  Another option is to leave the immigrants in the USA with only the petitioner going back for the work obligation.  Surely, the employer is aware of the complication, and will be supportive.

[pushbrk 13,874]

Another option is for the immigrants to stay long enough to apply for a re-entry permit.

[JD2 185]

3 hours ago, pushbrk said:

Another option is for the immigrants to stay long enough to apply for a re-entry permit.

I would apply for a re-entry permit as well.  You can pick up the re-entry permit in home country.  You just have to do biometrics in the USA before you leave.  I think you'll need roughly a month in USA.

[S2N 492]

Re-entry permit requires doing biometrics in the U.S. That’d take a few weeks, which doesn’t seem to be in line with what OP wants.

 

Without knowing the specifics, entering and then 3-4 months at home seems more practical based on what they’ve said.

 

Also worth raising the elephant in the room that it looks like OP’s spouse doesn’t actually have immigrant intent. I hinted at it above, but that’s grounds for CBP to deny entry. Obviously no one wants to go through the IR-1 process twice, but this is something they should have consulted about before progressing to the consulate stage. Re-entry permits aren’t really designed for people to circumvent the normal expectations of someone entering the first time.

 

Obviously they’re free to apply and if it works that’s great. But the most straightforward route seems to be actually to immigrate.

[JD2 185]

Let's say the IR-1 expires, what is the process?  Would the I-130 still be good?

[S2N 492]

36 minutes ago, JD2 said:

Let's say the IR-1 expires, what is the process?  Would the I-130 still be good?

My understanding is they’d have to reapply for the I-130. It’d be another 15 months at least until a new visa could be issued.

 

The ideal in these circumstances is to stall at NVC. That wasn’t done so here we are. In my opinion the least bad of all the options is to fly to the U.S., get the IR-1 endorsed/activate the green card, fly back to Australia to tie up loose ends, then fly back to the U.S. in 3-4 months.

 

The other option is to apply for the REP and stay in the U.S. until biometrics are done, which can take a few weeks/months.

 

None of the options are really what OP wants.

Edited 11 hours ago by S2N

[frange24 11]

16 hours ago, Auster said:

Wife's IR-1 has recently been approved. We're both living in Australia, but planning to move to the US. We're not ready to move before it expires because of an unexpected work situation. It appears that it is not uncommon for visa-holders to pop in to a poe to activate LPR and then make their actual move within the next 12 months. Is that still a reasonable method? We have 3 kids so it would be a bit expensive, but I have read that the immigrant shouldn't enter before the citizen spouse. Is that accurate?

Did you have the visa stamped on passports?

If not, you can delay the NVC process until you are ready.

[JD2 185]

1 hour ago, S2N said:

My understanding is they’d have to reapply for the I-130.

I just found this: "My immigrant visa expired before I was able to travel to the United States.  What should I do?  You should contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued your visa.  You do not need to file a new petition with USCIS, but you may need to submit a new application (DS-260) and pay another immigrant visa application processing fee.  In addition, you may need to submit new supporting documents, such as a new medical examination and police certificate.  Please be prepared to return your unused, expired visa and visa package (if applicable).  Requests to reissue or replace visas are considered on a case-by-case basis, and all applicants are required to re-establish their eligibility;  there is no guarantee that you will receive a new visa."  https://travel.state.gov/content/travel/en/us-visas/immigrate/national-visa-center/immigrant-visas-processing-general-faqs.html#NQ

[OldUser 10,577]

15 minutes ago, JD2 said:

I just found this: "My immigrant visa expired before I was able to travel to the United States.  What should I do?  You should contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued your visa.  You do not need to file a new petition with USCIS, but you may need to submit a new application (DS-260) and pay another immigrant visa application processing fee.  In addition, you may need to submit new supporting documents, such as a new medical examination and police certificate.  Please be prepared to return your unused, expired visa and visa package (if applicable).  Requests to reissue or replace visas are considered on a case-by-case basis, and all applicants are required to re-establish their eligibility;  there is no guarantee that you will receive a new visa."  https://travel.state.gov/content/travel/en/us-visas/immigrate/national-visa-center/immigrant-visas-processing-general-faqs.html#NQ

The question is consulate will bend over and issue another visa... I suspect, in most cases, no, and hence the "case by case" language, indicating broad discretion. I'd avoid this route at all costs.