Petition for Alien Spouse

[joanne]

I am a green card holder and I have applied the "Immigrant Petition for Relative" (I-130) for my alien spouse. Recently, we received a letter of "Approval of Petition for Alien Spouse". Does this letter mean he will be getting the immigrant visa very soon or what will be happened after this?

Thanks in advance.

[Kayalami]

1. How did you get GC?

2. When did you get GC?

3. When did you get married?

4. Where is your spouse?

5. If in the US what status?

6. What is your spouse's nationality?

My take is that petition ok in so far as financial side, no issues about inadmissibility etc. However you need to wait for a visa number - backlogs on this 5 years and more for some nationalities. Spouse if in US needs to remain in status till visa number available. Note it will be tough getting a non imigrant visa to travel or remain in the US given filing confirms immigrant intent. Exceptions for dual purpose visa e.g. H1, L1 etc. It may be you naturalise as a USC before number comes up at which point your spouse can move in the IR category which has no quotas.

[joanne]

Thanks Kayalami for your prompt reply.

1. My uncle (father's brother) apply for my whole family and I got it from there.

2. I got my Greed Card in Jan 2002

3. We got married in 1999

4. My husband is in Hong Kong

5. --

6. He is an Indian

Remarks : My husband and I moved back to HK in 2002, I don't know if I could return to US easily. I applied the re-entry permit before I left US, seems like they didn't reply anything.

So in my case, what do you think?
1. Is it to get the visa number also have to wait for a few years / few months?

2. After visa number, does that mean he can move to US?

3. Will there be any problem for me to go back to US, if there is, is there any solutions?

[Kayalami]

Two issues

1. Whether you are deemed to have abondoned your LPR. The RRP covered you for the two years to 2004 and as such rentry as an LPR within this period would have been relatively smooth given that the burden of proof was on USCIS. You have now remained outside the US for more than 12 months as well as beyond the validity of any re-entry permit. I have reviewed your post and note that you never actually received the RRP. What address did you use and was there someone there? When did you apply for RRP and when did you depart the US - dates??

You need to apply for a returning resident visa - SB1 class at a US consulate. This will need medicals and a filing fee of 380 US dollars. You would have to demonstrate that you have not abondoned the US as your place of permanent residence i.e. the burden of proof is now on you. This is influenced by:

a) Have you ever been to the US since you left?

b) Have you any USC children - under 21 and unmarried?

c) Do you have a greencard in your possession?

d) Have you filed taxes with the IRS on your worldwide income since obtaining LPR?

e) Have you got any property in the US? Do you have a DL?

f) Whom do you work for in Hong Kong i.e. are you on secondment with a US company or working for the Federal government?

g) any compelling circumstances pertaining to your absence such as illness, study etc.

2. I've just checked the State Department visa bulletin - numbers in the F2 category for Indian Nationals have a priority date of 1 November 2001 i.e. they are now issuing immigrant visas for those petitions filed on that date. So by default expect a 5 year wait. With regression it is likely to be more than that unless there is change in the law. Unfortunatley your absence from the US means you would not benefit from naturalisation soon jumping your spouse to the IR.

Summary

1. If you are deemed to have lost your LPR then 2 is moot.

2. Your spouse if LPR re-instated by way of SB-1 will not be able to obtain a non immigrant visa. He needs a dual intent visa e.g. H1, L1. problem is H1 quota for this fiscal year filled up. Applications for next years quota can be made from 1 April 2006. Can he get a transfer to the US on L1?

3. If your SB-1 denied then 2 applies to you as well i.e. you may only eturn to the US on another immigrant visa e.g. diversity lottery or dual intent visa.

[Kayalami]

Posted: 26 Sep 2005 13:35 Post subject:

--------------------------------------------------------------------------------

Thanks again Kayalami.

I was staying in my uncle's house and using his address for all the corresponding. And applied for my Re-entry permit on Feb 2002.

I've two passport. BNO and Hong Kong Passport. When I left US, I used my BNO. When I return to US, can I use my other passport (Hong Kong Passport) so they will not discover that I left US for so long?

a) I didn't go back to US since I left
b) I don't have any child
c) I have my greencard, but when I applied the " Petition for my alien spouse". I sent it along with it.
d) I didn't filed any taxes with the IRS
e) No, I don't have any property in the US and no driving licence either
f) I worked for a Hong Kong company for 1 1/2 year and then self-employed
g) I don't think so unless I've to make up some lie

2. I applied the petition for my husband on Feb 2002, is that mean it's not going to wait too long since the priority date is on 1 November 2001?

My husband got a visitor visa and it still valid for few years.

Once again, thanks for your help.

[Kayalami]

So you got married before you got your green card? I would expect this to have nullified your petition which required you to be under 21 and unmarried. If not e.g. revised petition retaining previous priority date why did your spouse not get his g/c at the same time as you then?

[Kayalami]

Because my family extended the immigrant visa and I've got married after the immigrant visa. So he's not entitle to get the immigrant visa / green card

[Kayalami]

joanne,

Sorry I amended the posts as by deleting my second reply the thread lost its pattern. IMHO you may find getting a SB-1 tough given that you appear to have no ties to the US. You won't know until you try though. A couple of things.

I've two passport. BNO and Hong Kong Passport. When I left US, I used my BNO. When I return to US, can I use my other passport (Hong Kong Passport) so they will not discover that I left US for so long?

LPR's submit their GC at check out - data sent to USCIS (or INS as the case may have been). Also you need to tell the truth about your absence to the immigration inspector. US residence can be easily verified by asking for specific documents to include bank statements, social security payments, school attendance record etc. Immigration inspectors see people trying this 'I've only been gone for a month' daily. See my next comment.

g) I don't think so unless I've to make up some lie

Bad idea. Misrepresentation/ submission of false documentation is an offence under the INA. You will be banned from ever obtaining a US visa. Also easy for consular officer to verify your story - consulates have an intelligence budget/ function.

2. I applied the petition for my husband on Feb 2002, is that mean it's not going to wait too long since the priority date is on 1 November 2001?

According to the State Dept bulleting those who applied on or before 1 Nov 2001 can get a visa number and hence an immigrant visa. Applying a similar timeline it may be that your spouse gets a visa number on or around Spring 2006. However visa numbers can and have retrogessed i.e. the timeline goes back. I would suggest you get your SB-1 done.

My husband got a visitor visa and it still valid for few years.

Visa only permission to travel to a US port of entry. Inspector has final decision to admit. Say you are entering to be with your G/C spouse and you will be denied entry. Even if you lie/ are not asked about G/C spouse admission as a visitor for 6 months so will need to extend status - form for such asks about family in the US who are USC or G/C and as yes then a refusal will follow. There are also issues around misrepresentation.

Because my family extended the immigrant visa and I've got married after the immigrant visa. So he's not entitle to get the immigrant visa / green card

I presume they re-filed? Either way F2 petition approval shows this not a prob.


I hope that helps and good luck.

[Ambreen]

Dear Kayalami,

Can you tell me what is the processing time for the family based immigraiton for the family fourth preference,
I would be thankful for your reply.
The approximate processing time and chances of success

[amusso]

Hello Kalayami and Joanne. I would like know how long take the process to get visa spouse. Joanne, since your husband is in hong kong and you re inside US? Then seems like my situation. My wife is in US while me here in brazil waiting to get my visa spouse (k3) to back to US. I didnt had interview yet.... just waiting their answer. I filled the petition in 10/06/2006. What i have so far is a receipt petition number. hmmm so can you both tell me about my situation.
Many thanks.
Alexander.

[Marco 72]

Wow, and the K3 was supposed to be a quick alternative to the full immigrant visa...

[amusso]

yeah I cannot believe how they can make stuck a couple away each other. Imagine if i had the baby in USA and missing his important months. Hope it take asap because its too hard for me.... My wife in US alone, need work to pay bills, etc. If was there a easy way i would back to US using my Visitor Visa but the immigration law said i am as married they can deny and make me back next plane. Many problem can come later after it. Just one way by Spouse Visa. Oh well...