Question on AOS while staying overseas

[Pete]

We're in the middle of waiting for the P3/P4 from the US embassy in

Guangzhou. Judging from the way things are moving for the K-1 visa,

we're hoping to get her the interview shortly.

 

The question that I have for the forum is I was approached recently

with a potential job opportunity at oversea. Assuming we get married

in the US as soon as she get the K-1 visa and then we move overseas

right after that. Can she still apply for the AOS/green card while she stay with me as a married couple at overseas? And if not, how can she come back to the US with me in the future if we decide to move back to the states later??

 

 

TIA,

Pete

[dnoblett]

K-1 cannot leave the USA until they have Advance Parole document in hand. You need to file I-485 and I-131 before leaving the USA, and have the AP doc from the I-131 in hand BEFORE leaving the USA.

 

If you leave the USA before having AP, USCIS will consider the AOS abandoned, and you will be starting all over again, this time filing I-130 to get a CR-1 or IR-1 spousal visa.

 

If your stay in foreign country exceeds 6 months you could file the I-130 directly to the US consulate in foreign country to get the immigrant visa for your spouse.

[yuehan123]

At best it's a huge gamble. There is no absolute guarantee of re-entry approval even with an AP and, used to be, "they" said something to the effect of 'if she leaves the US during or before 10 year card approval it shows us she never intended to live here and is using K-1 for a visitor's visa and we'll deny anyway.'

[Randy W]

There's nothing wrong with what you want to do at all - the K-1 is a temporary visa allowing you to bring your fiance to the US for marriage. DO NOT apply for AOS, but, like Dan says, be sure to submit the I-130 around a year before you intend to return to the US This will get her a green card upon admission to the US.

[jim_julian]

I considered an overseas job at about the same point you are. There was considerable money tied to it.

 

I finally rejected the idea because it was just fraught with too much uncertainty and risk. Not only the very real issues raised by others above but also that while out of the country she's not logging time towards citizenship.

[Pete]

There's nothing wrong with what you want to do at all - the K-1 is a temporary visa allowing you to bring your fiance to the US for marriage. DO NOT apply for AOS, but, like Dan says, be sure to submit the I-130 around a year before you intend to return to the US This will get her a green card upon admission to the US.

 

 

>DO NOT apply for AOS .... be sure to submit the I-130 around

>a year before you intend to return to the US

 

This assumes you have a job line up already in the US and waiting for your return. Otherwise you have no job/income to show for in your I-130 petition. Speaking of which, I believe someone has mentioned that you can substitute asset (e.g. bank account balance) for income derived from job.

[Randy W]

There's nothing wrong with what you want to do at all - the K-1 is a temporary visa allowing you to bring your fiance to the US for marriage. DO NOT apply for AOS, but, like Dan says, be sure to submit the I-130 around a year before you intend to return to the US This will get her a green card upon admission to the US.

 

 

>DO NOT apply for AOS .... be sure to submit the I-130 around

>a year before you intend to return to the US

 

This assumes you have a job line up already in the US and waiting for your return. Otherwise you have no job/income to show for in your I-130 petition. Speaking of which, I believe someone has mentioned that you can substitute asset (e.g. bank account balance) for income derived from job.

 

Yes - but filing for AOS from a foreign country might be even riskier. If you don't have the assets, you may need a sponsor in the States. Don't forget domicile (you need an address in the US).

 

Quite a few people have filed DCF (filed the I-130 at a foreign consulate) successfully.

[Pete]

There's nothing wrong with what you want to do at all - the K-1 is a temporary visa allowing you to bring your fiance to the US for marriage. DO NOT apply for AOS, but, like Dan says, be sure to submit the I-130 around a year before you intend to return to the US This will get her a green card upon admission to the US.

 

 

>DO NOT apply for AOS .... be sure to submit the I-130 around

>a year before you intend to return to the US

 

This assumes you have a job line up already in the US and waiting for your return. Otherwise you have no job/income to show for in your I-130 petition. Speaking of which, I believe someone has mentioned that you can substitute asset (e.g. bank account balance) for income derived from job.

 

Yes - but filing for AOS from a foreign country might be even riskier. If you don't have the assets, you may need a sponsor in the States. Don't forget domicile (you need an address in the US).

 

Quite a few people have filed DCF (filed the I-130 at a foreign consulate) successfully.

 

 

>but filing for AOS from a foreign country might be even riskier

That I agree.

 

So assuming we come back to the states and file for AOS while not having a job in the mean time (of course you're going to convince the officer that you're actively seeking one), how much of a bank account balance would be required? (assuming co-sponsoring is not an option)

[dnoblett]

Yes - but filing for AOS from a foreign country might be even riskier. If you don't have the assets, you may need a sponsor in the States. Don't forget domicile (you need an address in the US).

 

Quite a few people have filed DCF (filed the I-130 at a foreign consulate) successfully.

A K-1 cannot file for AOS when out of country, the departure record of leaving the USA will be on file, and USCIS will consider the AOS to be abandoned because AP is required before leaving the USA, AP cannot be filed for a K-1 while overseas.

 

This one comes up often on VJ, where a person enters the USA on a K-1, files to adjust status, and then leaves the country without AP, only to find out later that they cannot return to the USA due to abandoning AOS.

 

Filing AOS while out of country is not risky, it just cannot be done that way.

 

Examples:

http://www.visajourney.com/forums/index.ph...=103208&hl=

http://www.visajourney.com/forums/index.ph...=102219&hl=

[Randy W]

Yes - but filing for AOS from a foreign country might be even riskier. If you don't have the assets, you may need a sponsor in the States. Don't forget domicile (you need an address in the US).

 

Quite a few people have filed DCF (filed the I-130 at a foreign consulate) successfully.

A K-1 cannot file for AOS when out of country, the departure record of leaving the USA will be on file, and USCIS will consider the AOS to be abandoned because AP is required before leaving the USA, AP cannot be filed for a K-1 while overseas.

 

This one comes up often on VJ, where a person enters the USA on a K-1, files to adjust status, and then leaves the country without AP, only to find out later that they cannot return to the USA due to abandoning AOS.

 

Filing AOS while out of country is not risky, it just cannot be done that way.

 

Examples:

http://www.visajourney.com/forums/index.ph...=103208&hl=

http://www.visajourney.com/forums/index.ph...=102219&hl=

 

What is possible would be to file for AOS and AP and then leave the country. K-1's do this all the time, including us. What would be risky would be to try to manage the appointments (biometrics and interview) and appearances of a US domicile while living in a foreign country, and still trying for a green card. We are recommending that he not try to explore those limits, but go the I-130 route when he's ready to return.

Edited February 19, 2008 by Randy W (see edit history)

[dnoblett]

What is possible would be to file for AOS and AP and then leave the country. K-1's do this all the time, including us. What would be risky would be to try to manage the appointments (biometrics and interview) and appearances of a US domicile while living in a foreign country, and still trying for a green card. We are recommending that he not try to explore those limits, but go the I-130 route when he's ready to return.

Correct, you just need to be very clear that the AP document MUST be in hand before leaving the USA.

[Randy W]

K-1's don't need to file AOS or AP - they may leave the country before the visa expires, and file an I-130 when ready to return. This would give them a US wedding (assuming this is their goal), and allow them to return at a later date by filing the I-130.

[Pete]

Yes - but filing for AOS from a foreign country might be even riskier. If you don't have the assets, you may need a sponsor in the States. Don't forget domicile (you need an address in the US).

 

Quite a few people have filed DCF (filed the I-130 at a foreign consulate) successfully.

A K-1 cannot file for AOS when out of country, the departure record of leaving the USA will be on file, and USCIS will consider the AOS to be abandoned because AP is required before leaving the USA, AP cannot be filed for a K-1 while overseas.

 

This one comes up often on VJ, where a person enters the USA on a K-1, files to adjust status, and then leaves the country without AP, only to find out later that they cannot return to the USA due to abandoning AOS.

 

Filing AOS while out of country is not risky, it just cannot be done that way.

 

Examples:

http://www.visajourney.com/forums/index.ph...=103208&hl=

http://www.visajourney.com/forums/index.ph...=102219&hl=

 

What is possible would be to file for AOS and AP and then leave the country. K-1's do this all the time, including us. What would be risky would be to try to manage the appointments (biometrics and interview) and appearances of a US domicile while living in a foreign country, and still trying for a green card. We are recommending that he not try to explore those limits, but go the I-130 route when he's ready to return.

 

 

>What would be risky would be to try to manage the appointments

>(biometrics and interview) and appearances of a US domicile while >living in a foreign country, and still trying for a green card.

 

How risky is it? It seems to be the best option as long as the USCIS allows it. I would start the AOS process and have the AP in her hand before taking her with me overseas. When it is time for the interview, we just flew back to the US for it.

 

The key issue is whether this will give the visa officer the impression that you're not really intend to stay in the country to be a permanent resident

 

Filing I-130 seems to start the whole process all over again!

 

Again, can anyone tell me what's the asset subsitution requirement in lieu of income from a regular job?

[Randy W]

From the I-864 instructions:

 

In order to qualify based on the value of your assets, the total value of your assets must equal at least five times the difference between your total household income and the current poverty guidelines for your household size. However,if you are a U.S. citizen and you are sponsoring your spouse or minor child, the total value of your assets must only be equal to at least three times the difference.

 

I believe you summarize the risk yourself pretty well;

How risky is it? It seems to be the best option as long as the USCIS allows it. I would start the AOS process and have the AP in her hand before taking her with me overseas. When it is time for the interview, we just flew back to the US for it.

 

Again, my recommendation is to NOT file for AOS before leaving. I don't see any advantage to doing this. Only the risk of getting a denial at the AOS interview, which may work against a subsequent I-130 filing.

 

Of course, the K-1 and getting married in the US would be optional.

Edited February 19, 2008 by Randy W (see edit history)