Can we apply for I-130 while in the US

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soldiersgirl - 26 Feb 2005 14:05 GMT

Here is our situation: My husband to be is in the military [UK]. His
contract ends soon and he will be coming over here [US] soon. Because
of circumstances, we did not apply for any I-129 applications in the
event of his being deployed, etc..

When he comes over, we'd like to marry in the US. I've heard
conflicting stories and would like to know if anyone has done this: Has
anyone married in the US and applied for the I-130 while you are both in
the US? We will have all necessary documents with us and can provide
everything needed, including references.

In the grand scheme of things, our goal is to actually reside in the UK
in 6 months - 1 year and we don't want to be apart any longer. We just
don't want to botch things up with the Immigration policies.

As long as he is here, nothing can stop us from marrying, but will he be
able to work while an I-130 is being processed?

Has anyone gone through this? Your input would be greatly appreciated.

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L D Jones - 26 Feb 2005 16:15 GMT

> Here is our situation: My husband to be is in the military [UK]. His
> contract ends soon and he will be coming over here [US] soon. Because
[quoted text clipped - 15 lines]
>
> Has anyone gone through this? Your input would be greatly appreciated.

I haven't but done what you want to do but why get an immigrant visa
when your husband doesn't intend to reside in the US? It will probably
take you longer than 6 months (and probably quite a bit longer) to file,
get approved and adjust his status to permanent resident

This is just my opinion but if I were you I would go the UK as a tourist
for several months, marry, and then return to the US to get a UK spouse
visa before returning to the UK permanently. I do not think it is
possible to "adjust" from tourist status to Leave to Remain on the basis
of marriage in the UK any longer.

Or, get a UK fiance visa in the US and travel to the UK and marry then

Just some thoughts

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sphyrapicus - 26 Feb 2005 16:47 GMT

> Here is our situation: My husband to be is in the military [UK]. His
> contract ends soon and he will be coming over here [US] soon. Because
[quoted text clipped - 16 lines]
> Has anyone gone through this? Your input would be greatly
> appreciated.

There are a number of issues in your post.

1) Can someone enter as a VWP tourist and marry? Yes

2) Can someone enter as a VWP tourist and adjust status? Not if they had
intent to enter, marry, and remain.

3) Should someone who only wants to reside in the US for 6 months file a
K3 (I-129F/I-130) or attempt to AOS (I-130/I-485)? Probably not. By
the time the thing was processed, you'd be back living in the UK.
Without any long term desire to live in the US, why bother trying to
apply for something that will lead to permanent resident status? It
doesn't make sense. A bunch of time and money wasted.

Why not have him come over as a VWP tourist, marry, and then the two of
you leave the country at the end of 90 days and live happily ever after
in the UK? Everything is legal and you are not apart during the process.
The down side is that he cannot work while in the US.

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Dan725 - 26 Feb 2005 16:56 GMT

> There are a number of issues in your post.
>
[quoted text clipped - 14 lines]
> after in the UK? Everything is legal and you are not apart during the
> process. The down side is that he cannot work while in the US.

My thoughts exactly, he could come over on VWP and you could get
married, with the intention of going to live in the UK. In the meantime
it would be appropriate to get your paperwork together for your Visa to
live in the UK. After both spending your year in the UK with you as a
legal resident over there, you could then apply for consular filing to
come back to the US, should you decide to do that.

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Folinskyinla - 26 Feb 2005 20:00 GMT

Hi:

A brief question, why do you want to do an I-130? It seems that he
intends to be in the US only temporarily. Are are you concerned that he
be able to work while here?

I think that your plans are not within the normal plans AND the law has
a built in presumption that he intends to live here "permanently."

Signature

Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

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Retire to Italy - 26 Feb 2005 22:49 GMT

Hi

This is not legal advice but from reading this group it seems obvious
that you can marry on Visa waiver and adjust.

All this intend stuff makes me smile as How in the hell can anyone
prove you had intend . . it is impossible and just because you had
'intend" in your post does not make any difference. They cannot prove
anything so my view is marry and adjust. It takes a little longer but
is very simple ... you will need to search long and hard to find
anyone who has been rejected EVER. Of course the spoil sports and sudo
lawyers will say intend ect ect but the reality is way different.
Ypou are just another file as far as BCIS is concerned .. you will get
rubber stamp approval after waiting for what seems like forever.

Good luck

Julia

> > Here is our situation: My husband to be is in the military [UK]. His
> > contract ends soon and he will be coming over here [US] soon. Because
[quoted text clipped - 31 lines]
> Cal. Bar Board of Legal Specialization
> Posted via http://britishexpats.com

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Jonathan McNeil Wong - 27 Feb 2005 07:52 GMT

> Hi
>
[quoted text clipped - 14 lines]
>
> Julia

Um,

The alien bears the burden of proof on this issue, not the other way around.

Signature

Above intended as general commentary, not specific legal
advice. Your mileage may vary.

===============================================================
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Donahue Gallagher Woods LLP Facsimile: 510-832-1486
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soldiersgirl - 27 Feb 2005 17:54 GMT

> Hi:
>
[quoted text clipped - 4 lines]
> I think that your plans are not within the normal plans AND the law
> has a built in presumption that he intends to live here "permanently."

[QUOTE=Folinskyinla]

Exactly- is it permissible for him to work here for the short time that
we reside here? It's not worth filling out the I-130, I agree.....but
if he is able to work here while we live here, it would be advantageous.

I'm in a position where I can't leave my present job and that is why he
is coming over here for a short period.

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ian-mstm - 27 Feb 2005 19:56 GMT

> [QUOTE=Folinskyinla]
>
[quoted text clipped - 5 lines]
> I'm in a position where I can't leave my present job and that is why
> he is coming over here for a short period.

Short answer: No.

Long answer: It depends on the type of visa used. If, for example, he
enters the US as a K-1 beneficiary, he can work for 90 days *if* he can
get an EAD - and then only *if* he can also get a SSN. Can that be done
within 90 days? Sometimes yes, sometimes no... it depends where you live
as to how quickly the application is processed. You must be married
within those 90 days! He cannot apply for EAD *after* you are married
*unless* he also applies for permanent residency. Do you see how
complicated this can become?

All other forms of visas will probably take longer! So, take a look at
my short answer.

Ian

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Folinskyinla - 27 Feb 2005 20:40 GMT

> [QUOTE=Folinskyinla]
>
[quoted text clipped - 5 lines]
> I'm in a position where I can't leave my present job and that is why
> he is coming over here for a short period.

Hi:

It depends. Catherine Zeta-Jones does that all the time from what I
understand.

Signature

Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

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soldiersgirl - 27 Feb 2005 20:44 GMT

> Hi:
>
> It depends. Catherine Zeta-Jones does that all the time from what I
> understand.

It's not what you know, is it?

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jeffreyhy - 28 Feb 2005 16:42 GMT

> It's not what you know, is it?

soldiersgirl,

Yes, it is what you know. One needs to know the correct type of visa
for their situation. And be able to demonstrate that they meet all fo
the qualifications for that type of visa.

Regards, JEff

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Immigration Forum / USA Marriage Base / February 2005

Can we apply for I-130 while in the US