NEED HELP URGENTLY PLZ

[Seansnyangel]

am already aware that my situation may be hopeless, but I am holding out one last iota of hope here .... This is my situation with as much detail as I can offer

In Feb 2001 the man I love came to the US from the UK. 3 months later we went together to the UK to visit his family, returned to the US 2 weeks later .. and he never left. He should have gone back in August 2001, but I was about to be put out on the street, and he wouldnt see me go through that alone so he stayed. When things finally settled for me in \september 2001... 9/11 happened ... by the time it was ok for him again to leave ... we found out I was pregnant with our child ... at that point he wouldnt leave me. We did not have the money to adjust his status, and eventually, we just forgot about it as we had settled in a life together. Our baby was born in June 2002 and We got married in May 2003.

Now, in october 2005 my husband has had to leave the US because his father wasnt well. He felt it best to be with his family, so we booked him a flight and sent him back to England. The initial plan was to apply for visas for me and my children (I have otherkids from my 1st marriage) and move us all to the UK.... my husband ... doesnt want to live in the UK.

Is there ANYTHING AT ALL that can be done to bring him home to the US? I know that there is a triggered 10 year ban, i know he cant get back on a plane because he wont make it past immigration at the airport ... but is there ANYWAY to get him back to the US legally as the spouse of a US citizen as well as the FATHER of a US citizen ??

I would appreciate ANY help... I am in tears here. I dont want to move to England.

[John]

I won't comment upon the US aspect of this ... I shall leave that to others.

But the 10-year ban has been mentioned on this Board previously and if that is correct, and assuming the two of you want to be together, can I ask why you say :-

I dont want to move to England.

That is, if the two of you cannot be together in the US, surely being together in the UK is preferable to being apart?

If there are to be visa applications for the family to move to the UK, do you have Sole Custody of the children from your previous marriage. Without that Sole Custody it will not prove possible to get Child Settlement visas for those children.

As regards the child of your current marriage, has that child got a British passport?

[Seansnyangel]

YES being together is DEFINATELY better than being apart. NO DOUBT there. I just hate the idea of living in the UK. I will if I have to, but I dont want to, and neither does my husband.

As for the children ... I did my divorce, and made sure that the papers clearly state that I have full custody of the children and that i have the right to move,reside or settle anywhere in the US or UK with them without any further approval needed from their biological father. He doesnt pay support or see them anyway, so this shouldnt be an issue.

As for the child we have together, we are in the process of getting her british passport now ... she already has her american one.

[John]

This subject has come up before. My fellow Moderator Kayalami dealt with this point in this topic.

OK that was written on 6th December 2004 but unless anything has happened in the meantime, the fact that your husband has overstayed for in excess of 360 days :-

triggers a 10 yr ban from the US upon departure. Likewise he can never again use the VWP and must always apply for a visa (if going to the US temporarily) which will be denied anyway as he has exhibited immigrant intent through the marriage

So looks like a move to the UK will be necessary to keep the two of you together .. however much you hate the idea ..... which is why incidentally?

Does your husband now have a job in the UK? In order for you to get a spouse visa it is necessary to pass certain tests .... such as financial and accommodation.

[Seansnyangel]

yes, he has a good job here (im here visiting at the moment) and we are going to look at places to rent today ...

as for why we dont want to live here ... if you would choose between NY and england ???? I was born and raised thyere. Its where my life and family are and I have a VERY good job there... but none of that matters anymore at this point.

Does all of this mean he will NEVER be able to come back to the US ?? Can we apply for a visa for him AFTER the 10 year ban ??

[John]

My fellow Moderator Kayalami is much more knowledgeable than me on this subject but it does appear than after 10 years your husband can apply for a visa.

It appears that what he can never do, for the rest of his life, is try to use the Visa Waiver program.

I hope you do enjoy living in the UK. You appreciate that when you have your spouse visa in your passport you are allowed to work in the UK without needing a Work Permit. Hopefully you will get a good job here in the UK as well. Does your current employer have a branch or subsidiary company in the UK? A transfer possible?

Do appreciate that the applications for your spouse visa, and the child settlement visas for the USC children, will need to be made in the States. Presumably you intend to gather the required evidence while you are here and take that back with you?

[Kayalami]

Seansnyangel,

I am sorry to hear of the difficulty you are going through. However let us put this into perspective. Your spouse flouted US immigration laws and the result of this is that he is unlikely to ever return to the US in the near future. I am basing this on my understanding that he never applied for AOS so as to obtain a green card even if a conditional one or an ADIT (processed for LPR) stamp in his passport. He can never again use the VWP scheme but may apply for a US visa (non immigrant or immigrant) after 10 years.

If he can demonstrate that you and your children (biologically with him and/or the step children) as USC's will be under extreme hardship due to his absence from the US prior to the 10 yr ban then he may be able to obtain a waiver and apply for an immigrant visa. The 'extreme hardship' clause has a very high threshold and the only success I am aware of was where the USC was terminally ill and the spouse was the carer and even then it was tough requiring MD involvement. From a brief review of your circumstances I don't see any obvious grounds for a waiver. Best to seek the help of an experienced attorney practicing US immigration law - expect to pay hefty fees (possibly 5 figures).

I trust that the US experience means you resolve your UK immigration status in time and appropriatley so that you may remain with your spouse. John has made a valuable suggestion as to a possible transfer from your US employer to a UK branch if that is feasible.