Want to live in the US with my Fiancé who has Green Card. Please Help!

[andy_p1]

Hi,

I am writing this on behalf of a Brazilian friend of mine, and will explain as best I can. I hope I have posted this in the correct section.

Sarah is currently living in Brazil with her parents. For a while, she was living in the America while her parents were on a religious visa. This has finished, they were asked to leave America, and as a result, they are all now living in Brazil.

While living in America, Sarah met a guy (who is brazilian also), and they eventually got engaged. They would like to get married sometime in August this year.

Her fiance is currently living in America, and has only recently received his green card. I understand he will have this green card for the next few years at least.

Sarah is trying to find a way to be with her fiance in America. They would both like to live together there, and are not wanting to live in Brazil, as this would mean her fiance losing his green card.

I understand from my research that because her fiance is not a US citizen yet, and has just received his green card, it will take a long time before he can bring Sarah to live with him. They do not want to get married and apply for a I-130, only to then be separated for years whilst waiting for a visa number to become available. Does anyone know how long it would likely take for a visa number to become available?

so it looks like the only option would be to wait until he is a citizen, and then try to bring his fiancée to America to live with him, but this will mean waiting at least another few years before this becomes possible.

(This seems really harsh on those holder of green cards, as separation from partners seems highly likely!)

I have looked into the various visas, and I cannot seem to find any visa which would be applicable in their situation, so they could be together now. Sarah was thinking of applying for a student visa, and doing a 4 year course there (she has relationship with a college there who would invite her), but it looks like, as she is engaged to a green card holder, she will likely be refused this visa as she cannot prove her intent to return to Brazil after the course has finished. (which of course is not her intent anyway). Could someone confirm this?

I have also tried to look into the option of a business visa (H-2B) for her. Would she be eligible to apply for one of these, if she were able to find a job there?

I guess there is the possibility of 6 months in Brazil, followed by 6 months in the US, for the next few years, but that is hardly ideal, and also doubtful that Sarah would be able to prove her intent to return to Brazil at the end of each visit, plus, it would prove expensive with all the costs of flights.

Her fiance was also looking into the option of joining the forces in the US, as apparently you could then become a citizen after one year? is this correct?

I would appreciate any advice you can offer,

thanks,
Andy

 

[Jackolantern]

They would both like to live together there, and are not wanting to live in Brazil, as this would mean her fiance losing his green card.

He could obtain a reentry permit, which would let him stay outside the US for 2 years without losing his green card.

I have looked into the various visas, and I cannot seem to find any visa which would be applicable in their situation, so they could be together now. Sarah was thinking of applying for a student visa, and doing a 4 year course there (she has relationship with a college there who would invite her), but it looks like, as she is engaged to a green card holder, she will likely be refused this visa as she cannot prove her intent to return to Brazil after the course has finished. (which of course is not her intent anyway). Could someone confirm this?

That's true. Getting a student visa while having a green card fiance will be problematic.

I have also tried to look into the option of a business visa (H-2B) for her. Would she be eligible to apply for one of these, if she were able to find a job there?

Like student and tourist visas, the H2B visa also has the requirement of demonstrating the intent to return to one's home country (or otherwise leave the US) after the status has ended. It's H1B that exempts the visa holder from that requirement.

Her fiance was also looking into the option of joining the forces in the US, as apparently you could then become a citizen after one year? is this correct?

Yes, military service normally makes a green card holder eligible for citizenship in one year. Sooner if deployed into active duty. But he shouldn't join the military if his main purpose is to sponsor her green card.

 

[andy_p1]

He could obtain a reentry permit, which would let him stay outside the US for 2 years without losing his green card.

thanks for your reply.

If he was out of the country for 2 years, wouldn't this effect his period of continuous residency, needed for becoming a US citizen?

if this is the case, then wouldn't this just be putting back the period of separation by 2 years, so after the 2 years are up, he would then return to the US, and they would again be separated for at least 3 years or so until he has enough continuous residency in the US to be eligible to apply for citizenship? or am I missing something here?

If he applied for a re-entry permit, and stayed in Brazil for 2 years, they got married etc etc, what options would they have when those two years were up? would he be any nearer (timewise) to be able to bring her to the US with him? or would they still have a long wait, as they are facing currently?

 

[Jackolantern]

If he was out of the country for 2 years, wouldn't this effect his period of continuous residency, needed for becoming a US citizen?

Yes, it would delay his eligibility for citizenship, but if he married her and filed I-130 the time spent would allow the I-130 to progress in the family 2A queue, which currently has a 4 year wait.

So for example, he could get a reentry permit, go to Brazil, and use the first 6 months to build on the relationship and decide if they 100% want to marry each other under the circumstances. Then if they get married at the end of the 6 months, he files I-130 and it works its way through the queue. By the time he returns to the US, his I-130 has about 2.5 years left to reach the front of the queue, and he's enjoyed the 2 years with her. He could then get another reentry permit to spend another 2 years in Brazil.

 

[andy_p1]

that's great information, thanks. I will definitely pass that on.

that does seem like their best option that we have found out about so far. would it be straight forward to get another reentry permit when he returns to the US after the 2 years? and would there be any chance this could be rejected? because once, they are married, I know they would be concerned about the possibility of this happening and having to be apart. I also read that it can take 3-6 months for a reentry permit to be approved, is this correct? because this would cause quite a bit of inconvenience.

if he was out of the US for approximately 4 years, even though he was issued reentry permits, he would still keep his green card? i.e. they wouldn't assume that because he was out of the US for so long, he has no intention of living there permanently, and then remove his green card from him?

with the student visa being a non-immigrant type visa, do you think there is any chance of her managing to secure a student visa when she declares that her fiance is on a green card in the US, and her also needing to prove intent to return etc? I suppose she could do the 4 year course, and then return to Brazil, after which time, he would be a resident and could then bring her back to the US. but to get this visa, isn't she going to have to prove beyond doubt that she isn't intending to live in the US? (which of course she is, but only when that becomes possible at a later date).

really appreciate your advice,

 

[BigJoe5]

The first and second REP's are pretty much automatic. [Barring any inadmissibility issues like criminal convictions or immigration fraud.]

Anything after that would be either restricted to one year or denied.

see 8 CFR 223

 

[andy_p1]

With the student visa being a non-immigrant type visa, do you think there is any chance of her managing to secure a student visa when she declares that her fiance is on a green card in the US, and her also needing to prove intent to return etc? I suppose she could do the 4 year course, and then return to Brazil, after which time, he would be a resident and could then bring her back to the US. but to get this visa, isn't she going to have to prove beyond doubt that she isn't intending to live in the US? (which of course she is, but only when that becomes possible at a later date).

Thanks for your reply BigJoe5, that is very reassuring.

Could you, or someone else please comment on the paragraph above, re: student visa application.

Would it be worth trying to apply the student visa? and how likely would this be to achieve, knowing that she is intending to marry her fiance, and live together pretty soon after. Has anyone else achieved this in a similar situation?
The advantage of this type of visa would be that they could spend the next four years together in the US instead of Brazil.

Are there any other visas which could be applicable in their situation?

Thanks.

 

[Jackolantern]

Would it be worth trying to apply the student visa? and how likely would this be to achieve, knowing that she is intending to marry her fiance, and live together pretty soon after. Has anyone else achieved this in a similar situation?

I know of people failing to get the student visa with a USC or permanent resident fiance. I don't know of success stories.

Another approach would be to cancel the engagement due to the immigration barriers. Then she applies for the visa, not listing him as a fiance, and otherwise using no connection to him. That means her family and herself (or scholarships) must finance the education (the visa application requires proof of ability to pay), without money coming from him. And she must not live with him (at least not for the first year or so) or create any other appearance that the engagement is still active in the early stages of her student visa.

Then a few years later when he becomes a citizen, he proposes again, assuming they're still together.

 

[andy_p1]

Hi, thanks for the replies, they have been invaluable.

I have one more question if possible regarding the submission of the I-130.

I was hoping that after they got married in Brazil, her fiance would be able to submit his I-130 to the US Embassy in Brasil.

However, it appears from the links below that this only applies to US citizens and not to green card holders! which would mean he would need to buy a flight back to the US just to submit the I-130 before returning to Brasil again. Can anyone confirm this is the case? and if so, is there any way around this? I can imagine the cost of a flight back to the US is going to cost quite a bit.

Here is the quote from the US Department of State website Re: Filing the I-130 Petition outside of the United States.
(travel.state.gov/visa/immigrants/immigrants_5254.html)

"Form I-130, Petition for Alien Relative – only if the petitioner is legally resident in the consular district, and if the beneficiary is likely to be able to remain in the country for the time it normally takes to process the visa. The petitioner must be a U.S. citizen. Consular officers may not accept Form I-130 petitions from legal permanent residents (LPRs), except when acting on the petition is in the national interest or if an emergent or humanitarian situation exists."

The US embassy in Brazil also only mentions US Citizens, and LPR's aren't mentioned.
(brazil.usembassy.gov/reconsiderations.html)

"If you are a U.S. citizen who has been a resident in Brazil for at least the last six months (continuously), you may make an appointment to file your petition in person at the U.S. Embassy in Brasilia or at one of the U.S. Consulates in Brazil."

 

[Jackolantern]

If one doesn't meet the criteria to submit the I-130 directly to the consulate, it can be submitted from abroad and sent to the appropriate USCIS office in the US. But in that event, a US mailing address must be provided, and that is where USCIS will send correspondence throughout most of the process (near the end they would send some documents to his wife's address in Brazil). So there is no need to worry about the cost of a flight just for that -- it's just the cost of sending the I-130 by Fedex/UPS/DHL.

Of course, if they get married in Brazil, forget about the student visa route.

 

[andy_p1]

thanks. I have let them know about being able to fedex the I-130, that's a great help.

One possible plan could be that, they end their engagement for now. She applied for this student visa without mentioning him at all. If accepted, she would live on the uni campus, and maybe after a year or so, she could then get engaged to her 'boyfriend' and then they could get married and move in together whilst in the US. How difficult are student visas to obtain? Is there a realistic chance?

The only reason I was a little concerned about this option was that, when she has her interview for her student visa, they may ask her questions, such as 'do you have a boyfriend? where does he live?' etc etc, which could prove difficult.

Also, if she were rejected for the student visa. Would this in any way have a negative effect on her fiances future I-130 application. For instance, if he then decided that because or her refusal of this student visa, he would now like to go with the backup option of the reentry permit.. i.e. move to Brazil, get married to her, and then 3-6 months later, apply for the I-130 for her to join him in the US etc.

Could her student visa refusal have any negative effect on her fiance submitting his I-130, inviting his then (wife) to the US? hopefully the immigration authorities wouldn't deem it suspicious that having just fairly recently been refused for a nonimmigrant student visa, 6 months after, she is now married, and her husband is submitting an I-130 for her to come and live in the US permanently!

The reason for asking these questions it that, if a student visa refusal wouldn't necessarily have a negative effect on his I-130 application.. then what she could do is simply... try to apply for the student visa (she would also really like to do this particular university course) without mentioning him, as she would no longer be engaged anyway, and hopefully this visa would get approved, but if not, her fiance could go down the reentry permit / I-130 route instead, as a backup option?