[Graeme]

Hi there,



I am a Legal Permanent Resident who is getting married next month in SA and will be trying to get my wife in to the USA asap. We intend to file the I-130 asap after we are married and just wait for a visa number to be available while she waits in SA - currently this is looking like 2 years and 9 months wait according the visa bulletin - however a few months ago it was only six months so I am hoping for the best, especially after having read of very low immigrant petitions due to the job market here.


I have been advised by colleagues that she could enter the USA on her ESTA (she has a British passport) and then we could file for adjustment of status based on her eligibilty for permanent residency by being married to me. This is the I-485 form which seems pretty straight forward.



Has anyone ever done this? We want to do everything by the book and was just wondering if this is a process that has worked for anyone?



Thanks,



Graeme.

[Superkruz]

Graeme, as your question concerns a Brit you could also post it on this forum. There are a few very well informed individuals, including immigration lawyers, on that site that might be able to answer your question.

This post has been edited by Superkruz: 16 November 2011 - 10:43 PM

[Malamute]

Graeme, on 16 November 2011 - 06:57 PM, said:

Hi there,



I am a Legal Permanent Resident who is getting married next month in SA and will be trying to get my wife in to the USA asap. We intend to file the I-130 asap after we are married and just wait for a visa number to be available while she waits in SA - currently this is looking like 2 years and 9 months wait according the visa bulletin - however a few months ago it was only six months so I am hoping for the best, especially after having read of very low immigrant petitions due to the job market here.


I have been advised by colleagues that she could enter the USA on her ESTA (she has a British passport) and then we could file for adjustment of status based on her eligibilty for permanent residency by being married to me. This is the I-485 form which seems pretty straight forward.



Has anyone ever done this? We want to do everything by the book and was just wondering if this is a process that has worked for anyone?



Thanks,



Graeme.

Graeme,

Yes, your wife can enter the USA under the Visa Waiver Program, and yes, you can (under certain circumstances - but almost certainly no under these circumstances) apply for AOS, but:
- on ESTA, she must leave within 90 days, or she will be an illegal alien, and subject to deportation.
- You CAN'T file for AOS until an immigrant visa number is available for her - which is when she is current under the visa bulletin - which as you state is now 2 years and 6 months. Whether you apply for AOS or whether you do the visa outside of the USA at a consulate - the wait is the same - she doesn't jump the Q because she is now inside the USA. (the situation is different if you were a USA citizen, as there is no wait time/annual numeric limitations, and perhaps your colleagues are thinking of this siutation - it is clearly not the same if you are a LPR and there IS a wait)
- So, if the wait before she can file for AOS is 2 1/2 years, and she can only stay here on ESTA for 3 months, she will be an illegal alien for the rest of the time.
- Being an illegal alien overstaying ESTA is not in itself grounds for refusal of the visa, although likely, however:
- She will probably be DENIED the immigrant visa if it is deemed that she entered under ESTA/Visa Waiver Program with the intention of staying and filing AOS as she is married (ESTA is specifically only for tourist/business purposes). As you will already be married, it will be very hard for you to prove that this WASN'T her intention.
- If the USCIS DENY the AOS she applied for under the Visa Waiver/ESTA = THERE IS NO RECOURSE - as there is with visa applications at a consulate abroad, or if someone enters the USA on a valid visa (ESTA isn't a visa). i.e. she can't appeal to an immigration judge etc.

[Graeme]

Thanks Malamute - your advice is always very helpful. Do you foresee any major problems with her visiting at least once a year for a few weeks, even though they are going to see that she has a pending application for permanent residency under the i-130? I think her having visited numerous times on an ESTA before may help.


Graeme,

Yes, your wife can enter the USA under the Visa Waiver Program, and yes, you can (under certain circumstances - but almost certainly no under these circumstances) apply for AOS, but:
- on ESTA, she must leave within 90 days, or she will be an illegal alien, and subject to deportation.
- You CAN'T file for AOS until an immigrant visa number is available for her - which is when she is current under the visa bulletin - which as you state is now 2 years and 6 months. Whether you apply for AOS or whether you do the visa outside of the USA at a consulate - the wait is the same - she doesn't jump the Q because she is now inside the USA. (the situation is different if you were a USA citizen, as there is no wait time/annual numeric limitations, and perhaps your colleagues are thinking of this siutation - it is clearly not the same if you are a LPR and there IS a wait)
- So, if the wait before she can file for AOS is 2 1/2 years, and she can only stay here on ESTA for 3 months, she will be an illegal alien for the rest of the time.
- Being an illegal alien overstaying ESTA is not in itself grounds for refusal of the visa, although likely, however:
- She will probably be DENIED the immigrant visa if it is deemed that she entered under ESTA/Visa Waiver Program with the intention of staying and filing AOS as she is married (ESTA is specifically only for tourist/business purposes). As you will already be married, it will be very hard for you to prove that this WASN'T her intention.
- If the USCIS DENY the AOS she applied for under the Visa Waiver/ESTA = THERE IS NO RECOURSE - as there is with visa applications at a consulate abroad, or if someone enters the USA on a valid visa (ESTA isn't a visa). i.e. she can't appeal to an immigration judge etc.
[/quote]

[Malamute]

Generally, there should be no problem with this - ESTA doesn't specifically ask if you have an immigrant visa pending, and if her intention is just to visit, she is entitled to enter on ESTA.

She is going to be asked at the entry point what is the purpose of her visit - and she will have to convince the officer at the point of the entry that she is intending to vist and leave before the 90 days are up.

Others on this board have had immigration visas pending and entered on B1/2 visas - and then left again - and it happens all the time that relations waiting to move here can come and visit.

[Graeme]

Hi again Malamute, well I'm all married now and the form is on it's way to the Chicago lockbox. One thing that still confuses me - over the past few years the Priority dates for F2A have been more than 5 years in the past, sometimes as long as 7 years in the past.


If permanent residents can become citizens after 5 years and the visas are then immediately available, how can the priority dates be more than 5 years in the past?



Cheers,



Graeme.

[Malamute]

Hi Graeme
Congratulations on your marriage - all the best!

Some people choose not to naturalize - and continue for years and years as an LPR (I know several South Africans who have qualified some years ago, and have not yet got around to doing it - we all have different priorities).

Some just don't have the funds to do it - it costs several hundred $$$ to naturalize. Others have met the 5 year LPR status, but perhaps not the 30 month physical prescence to naturalize - and others are afraid of flunking the interview.

However, I agree that someone with a spouse application waiting would surely prioritize this, but for many that is just not the case. By the time they file to naturalize, go through the process etc, the 5 or so year wait is already up for their spouse, without the need to naturalize.

I do hope the wait is shorter than you fear, and that the couple of years waiting for this are not too frustrating.

[Graeme]

Ok thanks so much, we received confirmation from the USCIS lockbox in Chicago that they received the application - so the fact that we now have a receipt number to track the progress online is a relief in itself. It's npw being processed in the California service centre which I believe is usually pretty quick. I see the priority dates moved up a month and a half this month, so I can only hope that soon it gets back to the 6 month timeframe it was a few months back.

Thanks again,

Graeme.

[Graeme]

Graeme, on 08 January 2012 - 02:32 PM, said:

Ok thanks so much, we received confirmation from the USCIS lockbox in Chicago that they received the application - so the fact that we now have a receipt number to track the progress online is a relief in itself. It's npw being processed in the California service centre which I believe is usually pretty quick. I see the priority dates moved up a month and a half this month, so I can only hope that soon it gets back to the 6 month timeframe it was a few months back.

Thanks again,

Graeme.

Hi Just another question - does anyone know what happens if my wife gets pregnant during the wait, how do I then apply for the newborn baby?

Thanks,

Graeme.

[Malamute]

Graeme, on 28 January 2012 - 12:24 PM, said:

Hi Just another question - does anyone know what happens if my wife gets pregnant during the wait, how do I then apply for the newborn baby?

Thanks,

Graeme.

Hi Graeme
Under curent law, if the baby is born in the USA, then he/she is automatically a USA citizen, regardless of your or your wife's immigrant status.
Baby can then live in the USA. Nothing changes regarding your or your wife's status (you can already live here on a Greencard as long as you maintain that right)

If baby is not born in the USA, you can apply for an F2 visa - and endure the same wait that you are now for your wife - except baby will be further back in the 'Q' and you will wait longer.

Note: Even if baby is born in the USA, and is a citizen, this doesn't help/accelerate your wife's application. While a US citizen can petition to sponsor a parent - and there is no annual limit - and the wait therefore is a short one - he/she cannot sponsor anyone until age 21.

[Graeme]

Ok thanks, so if we do choose to get my wife here a couple of months before the baby is due, is being pregnant grounds for not being let in, even on an ESTA. Secondly, are you aware of what the safest but inexpensive way to have the baby here, especially if there are complications?

One more question, I'm obviously not going to wait for years on end while my child grows up without me in south Africa, so all I gave to do is fill out a specific form and then can leave for up to two years and then decide whether it's worth us all coming back, as hopefully by then both visas are ready??

[Spokie]

Individual health insurance (in general) does not cover maternity, so you'll have to pay for all the maternity care; lab tests; birth and hospital stay. Many hospitals and doctors have discount packages for people paying in cash and you should call the providers in your area to find out if that is their policy. When I started calling around, I was surprised that the hospital was actually the cheaper (and safer) way than a birthing center or home-birth. But that might be different where you are.

[Malamute]

Graeme, on 29 January 2012 - 07:26 PM, said:

One more question, I'm obviously not going to wait for years on end while my child grows up without me in south Africa, so all I gave to do is fill out a specific form and then can leave for up to two years and then decide whether it's worth us all coming back, as hopefully by then both visas are ready??

It isn't quite that easy. The re-entry permit simply allows you to return to the USA on a Green Card even if you have been away for longer than a year - (if you have been out longer than a year, you cannot just return on your GC). HOWEVER, you still have to be returning to your domicile in the USA. Having your home etc in the USA is important to establishing your domicile, as well as being able to prove that your stay abroad was always intended to be temporary. You can (it happens all the time) still have your residency stripped from you even holding a re-entry permit, if when arriving back in the USA you have been found to have abandoned your residency in the USA and your primary residency has again become South Africa. This is the same concern those with new Green Cards face, who land, return to SA for a couple of months and then move permanently - there is a risk - a small one - that the intervening period away may be deemed proof you have have abandoned your residency, as you are not 'domiciled' in the USA in those intervening months.

Another thing to remember is that your 5 year wait to citizenship will start all over again. If you are out of the USA for longer than 6 months - count starts again - and you have to be physically present in the USA for 30 months in the 5 years before you apply. (In some cases the last year of your stay outide the USA can be counted towards the 5 years if you have a re-entry permit).

[Dolphie]

Just be aware you might have trouble getting the baby back into SA as a US citizen. You would have to apply for dual citizenship or citizenship by descent as soon as the baby is born. Your baby will need it's own passport and if it is a US passport the baby will be subject to all the restrictions a US citizen would have in SA until the SA citizenship comes through. The baby would have to leave SA after 90 days if the citizenship hasn't come through yet.
The citizenship application can take up to 12 weeks according to the website. So you would have to time everything very well.