# Visa Seperation



## ktpepp (Feb 19, 2013)

Hello all,
I am a US Citizen living in England with my British husband and our 3 year old, who has dual citizenship in the UK and US. 
We are looking to move to the US and need advice on which visa route my husband should take. I will have a job as soon as we arrive in the US and I have a family member that can be my co-sponsor for form I-864, as I won't quite reach the earning criteria.We don't have a lot of time on our side, so if anyone has advice on which visa route would be best. 
We have been told to apply for the I-130 from here in the UK and then once that is approved me and our daughter should go to the states and be separated from my husband for however long it takes for his I-485 to be approved. We aren't really comfortable with this route as it will already be difficult enough on our daughter with the move.
Is it possible, as it states on the USCIS website, to already be in the states together as a family, him entering on the visa waiver system with us, and applying for I-130 and 1-485 at the same time? Obviously if any other visas need to be applied for while he is waiting we will, such as temporary work visas, etc.
Any and all advice will be much appreciated.


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## Moulard (Feb 3, 2017)

From the USCIS...



> If you intend taking up permanent residence in the United States, you are required to wait until the immigrant or fiancé(e) visa is issued. You cannot reside in the U.S. on a tourist visa or visa free under the Visa Waiver Program while waiting the issuance of the visa.
> 
> However, if you wish to make a temporary visit at the end of which you will return to your permanent residence outside the United States, you may travel on a tourist (B-2) visa, or visa free under the Visa Waiver Program, if qualified.
> 
> ...


There is clearly risk in this approach, as there may be a perception that your spouse intends to stay in the US beyond visa requirement, as he will have stronger connection to the US through you and your child. So a job, home (mortage/rent), letter from his employer stating he is expected back etc... would all be strongly advised.

Its worth noting that while ordinarily all the processing of the petition is done in the US (the cause of most of the delay in processing), the USCIS may authorize the Department of State (ie. the local consulate) to adjudicate their case in certain emergency situations. 

one of those grounds is:



> A U.S. citizen petitioner, living and working abroad, receives a job relocation within the same company or subsidiary to the United States, or an offer of a new job in the United States with very little notice.


There will still be a separation, but shorter.


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## Crawford (Jan 23, 2011)

Entering the US under the Visa Waiver Program with the intention of then applying for permanent residency is fraud, and if the application is refused your husband will be deported and not able to use the Visa Waiver program again. With a first refusal any future applications will be heavily scrutinised.

Consequently, this route is not recommended.

You must apply for the I-130 while in the UK and wait for the process to be completed. Currently it could take up to a year.

YOU can move over when you like, or you stay in the UK and travel over together.

Looking at your old posts, did you not get your ILR visa?


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## Moulard (Feb 3, 2017)

Its strange isn't it... 

A fiance can easily enter the US and then apply for a change of status to await the outcome of the I-130 petition, so long as they marry within 90 days, but they make it hard for a spouse to do the same. 

But I agree with Crawford, the way not to do it is apply for a tourist visa and then make the I-130 petition onshore.

Applying for an Visa, after the I-130 petition will, as I posted above may be difficult, as your spouse will have to demonstrate that there is no intention to abandon his UK residence. Which can be difficult if the rest of the family is in the US.

If the job in the US is with a company that is related to the one you work for in the UK, then the expedited process I mention will reduce separation - still can take 6 months I gather.


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## ktpepp (Feb 19, 2013)

Moulard,
Thank you so much for your reply. The information you have given is so helpful. 

Do you think it might be a shorter seperation time if my daughter and I went to the states as soon as possible and I submit the forms I-130 and I-129F at the same time? That way my husband can enter on the K-3 Visa and then apply for his green card anytime after that?

I am just trying to look into every option that makes this move easiest on our daughter. 

Thank you


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## Crawford (Jan 23, 2011)

ktpepp said:


> Moulard,
> Thank you so much for your reply. The information you have given is so helpful.
> 
> Do you think it might be a shorter seperation time if my daughter and I went to the states as soon as possible and I submit the forms I-130 and I-129F at the same time? That way my husband can enter on the K-3 Visa and then apply for his green card anytime after that?
> ...


The K-3 is obsolete .....

There is no shorter route - you submit the I-130 for the petition and then when that is approved you move onto the I-864 support forms etc. 

Why are you talking about an I-129F form? That is for a fiance application and you are married ??


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## Crawford (Jan 23, 2011)

Moulard said:


> Its strange isn't it...
> 
> A fiance can easily enter the US and then apply for a change of status to await the outcome of the I-130 petition, so long as they marry within 90 days, but they make it hard for a spouse to do the same.
> 
> ...


To apply for a fiance visa is no shorter than applying for a spouse one - AND you then have to go through the process of adjusting status, all of which takes time and expense. During the AOS the applicant cannot work for most of the time


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## ktpepp (Feb 19, 2013)

Sorry I did not see your replies, Crawford and Moulard, as I was writing mine above. 

Crawford, No, I did not get my ILR. We were put on the 10 year route so it is 5 more years until that happens. 
You said I could remain here in UK until I-130 is approved and then travel together? Or do we need another visa approved first before we can travel together?

Moulard, my job in the US is not related to the one I held here, so that would not be an option for me unfortunately.

Thanks again for all of your help.


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## ktpepp (Feb 19, 2013)

Crawford said:


> The K-3 is obsolete .....
> 
> There is no shorter route - you submit the I-130 for the petition and then when that is approved you move onto the I-864 support forms etc.
> 
> Why are you talking about an I-129F form? That is for a fiance application and you are married ??


I understood it was for Spouses as well, but if it is obsolete then no worries. Thank you


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## ktpepp (Feb 19, 2013)

Crawford said:


> The K-3 is obsolete .....
> 
> There is no shorter route - you submit the I-130 for the petition and then when that is approved you move onto the I-864 support forms etc.
> 
> Why are you talking about an I-129F form? That is for a fiance application and you are married ??


Crawford, do I need to be in the US before I submit the I-864 forms? To show that I am working? Or can I do that from here and have my family member in the US fill out their's as well. Since I will not be earning enough, my family member will be co-sponsor.

Thanks for all info again.


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## Moulard (Feb 3, 2017)

ktpepp said:


> I understood it was for Spouses as well, but if it is obsolete then no worries. Thank you


The K & V vistas are still on the books, but they have never really filled their legislative intent. They are obsolete because USCIS now takes less time to adjudicate the Form I-130, than it does to issue a K or a V visa... I seem to recall reading somewhere that there were less than a dozen K visas issued last year.


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## twostep (Apr 3, 2008)

Moulard said:


> The K & V vistas are still on the books, but they have never really filled their legislative intent. They are obsolete because USCIS now takes less time to adjudicate the Form I-130, than it does to issue a K or a V visa... I seem to recall reading somewhere that there were less than a dozen K visas issued last year.


K3 is still an option BUT it poses considerable risk as there is no recourse to USCIS decisions. Processing time is the same as spousal Green Card as it uses I130. There is no adjustment of status for spouses wntering the US under VWP.

Issued visas can be viewed on travel.state.gov under bulletin. Processing times are available on uscis.gov

OP can sponsor with assets.

I do not know what you mean by V visa.


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## Crawford (Jan 23, 2011)

ktpepp said:


> Crawford, do I need to be in the US before I submit the I-864 forms? To show that I am working? Or can I do that from here and have my family member in the US fill out their's as well. Since I will not be earning enough, my family member will be co-sponsor.
> 
> Thanks for all info again.



To apply using your income to meet the financial requirements, then, yes, you would need to be in the US and earning. (Prospective employment is not relevant).
The sponsor needs to meet the US poverty level at 125%, which means you need to be earning a minimum of $20,688 per annum. If you cannot meet this level then you need to have a joint sponsor.

You say you already have a joint sponsor, so one way of not being separated is if the joint sponsor can cover the full amount of $20,688 and not just the shortfall.
Can they do this? You would not then need to move to the US before your husband.

The process is that you submit the I-130 first in the UK (the petition). This will take several months to process, and when approved you move to the next step which includes the I-864. At this stage the joint sponsor also completes this form.

https://www.uscis.gov/i-864

https://travel.state.gov/content/tr...nt-visa-process/step-1-submit-a-petition.html


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## ktpepp (Feb 19, 2013)

Crawford said:


> To apply using your income to meet the financial requirements, then, yes, you would need to be in the US and earning. (Prospective employment is not relevant).
> The sponsor needs to meet the US poverty level at 125%, which means you need to be earning a minimum of $20,688 per annum. If you cannot meet this level then you need to have a joint sponsor.
> 
> You say you already have a joint sponsor, so one way of not being separated is if the joint sponsor can cover the full amount of $20,688 and not just the shortfall.
> ...


Yes, my joint sponsor can cover the full amount. So we will start with the I-130 asap and then go from there. 
Thank you for your help, as well as everyone that has given advice.


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## twostep (Apr 3, 2008)

ktpepp said:


> Yes, my joint sponsor can cover the full amount. So we will start with the I-130 asap and then go from there.
> Thank you for your help, as well as everyone that has given advice.


https://www.uscis.gov/i-864p
Head count = sponsor + immigrant being sponsored + number of household members per annual tax return


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## ktpepp (Feb 19, 2013)

twostep said:


> https://www.uscis.gov/i-864p
> Head count = sponsor + immigrant being sponsored + number of household members per annual tax return


Thank you, Twostep.


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## Moulard (Feb 3, 2017)

twostep said:


> I do not know what you mean by V visa.


It was the spousal visa for a permanent resident. Just one of the host of spousal visas that were basically made obsolete along with some of the K visas and others.


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## twostep (Apr 3, 2008)

Moulard said:


> From the USCIS...
> 
> 
> 
> ...


There is no processing in US consulates right now and no ETA has been issued.


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## Moulard (Feb 3, 2017)

twostep said:


> There is no processing in US consulates right now and no ETA has been issued.


Firstly, I was talking in generalities in terms of what is allowed under the various field manuals that define policy and procedure outside of current restrictions. Secondly, that said, what you is equally not true or at best is a generality.

Whether or not a US consulate was open, and to what extent they were open has been managed on a nation by nation (and even city by city) basis for some time now. The only things where global treatment is the same are H1B, H2B, H4, L and certain J categories which are handled by exception only due to Presidential Proclamation 10052.

A case in point, in New Zealand the consulates resumed certain immigrant and non-immigrant visa services, including employment, student, petition-based, and tourist non-immigrant visas, K fiancé visas, as well as IR-1/2, CR-1/2, IR 3/4, SB-1, and EB-5 immigrant visas on the 20 of July.

I will admin things have gone backwards (as of yesterday) and that they are now encouraging the rescheduling of "routine services" in light of all of NZ returning to Alert level 2.

Closer to home, the U.S. Consulate General in Sydney resumed limited appointments for passport and citizenship services on 22 June. Again limited services.... lets face it, no need to issue visa, when Australian's are not allowed to leave the country unless granted a hard to get exemption. In Melbourne, on the other hand, it is open (mostly to support absentee voting), but current restrictions mean it is only able to service people who live within 5 km.


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## ktpepp (Feb 19, 2013)

Hi all, a quick question continuing with this thread. Our I-130 was approved and my joint sponsor and I have since both completed an I-864. My husband has completed the DS-260 and is now gathering civil documents. 

Regarding the interview, travel.state.gov states, "You, your spouse, and any qualified unmarried children immigrating with you, must participate in the interview." 
And then later states,"Your sponsor/petitioner does not attend the visa interview." 

I am the spouse of the applicant as well as the sponsor/petitioner, and I will be moving over at the same time as my husband as well as our daughter who has dual nationality.

If anyone has any advice on if we are to attend or if there is anyone that I can contact who may know. Thank you ever so much.


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## Moulard (Feb 3, 2017)

Assuming you are in the UK and thus in a position to attend, I would take the advice /instructions that comes with the appointment letter issued by your local consulate or embassy.

Or if you need to plan accordingly, then contact them directly and seek advice.

It was half a lifetime ago, but I do recall attending an interview for my spouse... but don't recall whether it was required, or I did it for morale support.


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## ktpepp (Feb 19, 2013)

Thank you, Moulard👍🏼🙂


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## ktpepp (Feb 19, 2013)

Hello all,
My husband received his green card and we are now in the states together. Thank you all for your help in this matter. 
My UK spouse visa expires on August 6 of this year. What do I need to do now that we are in the US? If we wish to return to the UK to live I understand that I will need to start the process all over again? I just don't want to let it expire and home office to think I am still in the UK outstaying my visa without renewing. Should I let them know I am in the US, and if we are to return to live in the UK am I right in that it needs to be within 3 months of my visa expiry date?
I have been looking on gov.uk but am not getting clear answers for my situation.

Any advice would be greatly appreciated. Thank you

Katy


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## Crawford (Jan 23, 2011)

ktpepp said:


> Hello all,
> My husband received his green card and we are now in the states together. Thank you all for your help in this matter.
> My UK spouse visa expires on August 6 of this year. What do I need to do now that we are in the US? If we wish to return to the UK to live I understand that I will need to start the process all over again? I just don't want to let it expire and home office to think I am still in the UK outstaying my visa without renewing. Should I let them know I am in the US, and if we are to return to live in the UK am I right in that it needs to be within 3 months of my visa expiry date?
> I have been looking on gov.uk but am not getting clear answers for my situation.
> ...


Don't know whether you are applying for FLR(M) or ILR. Either one, you need to be in the UK to apply. The application assumes you are and have been living in the UK for the duration of your visa.
From reading your posts it looks like you have been in the US since sometime in 2021?
*You need to apply to renew your visa before it expires* - but to be honest you would not get it approved as you are now living in the US


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## ktpepp (Feb 19, 2013)

Crawford said:


> Don't know whether you are applying for FLR(M) or ILR. Either one, you need to be in the UK to apply. The application assumes you are and have been living in the UK for the duration of your visa.
> From reading your posts it looks like you have been in the US since sometime in 2021?
> *You need to apply to renew your visa before it expires* - but to be honest you would not get it approved as you are now living in the US


Thank you for your reply, Crawford. 

I made my post a bit confusing, my apologies. 
My family and I moved to the US in mid March of this year. I would have applied for my 4th FLR(M) as I had been in the UK for 7 of the 10 year route we were put on. 
Unfortunately due to family circumstances we needed to get my husbands green card for the US. If we were ever to return to live in the UK I understand that I will need to start the process all over again. 
My true question is, do I need to let the Home Office know that I am no longer in the UK so they can update it in their system? 
If so would someone have the link for me to do that? 

Thabj you again. 

Katy


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## Crawford (Jan 23, 2011)

No, you don't need to inform them.... your visa will just lapse and as you say, you will need to re-apply as and when you might decide to return to the UK.


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## ktpepp (Feb 19, 2013)

Okay. Thank you so much. 



Crawford said:


> No, you don't need to inform them.... your visa will just lapse and as you say, you will need to re-apply as and when you might decide to return to the UK.


Okay, thank you very much, Crawford. 
Am I right in saying that I will have to apply from the US if we were to return to living in the UK again? 
My husband and daughter are both UK citizens, but we would need to wait for my new spouse visa to be accepted before I could return, is that correct?


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## Crawford (Jan 23, 2011)

Yes, you would apply from the US and would need to obtain the visa before entering the UK.


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## ktpepp (Feb 19, 2013)

Crawford said:


> Yes, you would apply from the US and would need to obtain the visa before entering the UK.


Okay, thank you ever so much for your help 😊

Kindest regards


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