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Immigration Issues/Marriage based Green card on VWP

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QUESTION: I am a US citizen living in Australia since 2003 with my husband. We got married in India in 2002 – At the time of our marriage my husband had Indian citizenship.

After marriage my husband visited US on visitor visa and left before expiry of his Visa.

In 2003, we both went to Australia on student visa and upon graduation applied for permanent resident and citizenship of Australia. As a result, I now have dual-citizenship of US and Australia, whereas my husband has Australian citizenship only(he had to surrender his Indian citizenship since India does not allow dual citizenship).

In last 9 years I have made three solo trips to USA to visit my family.

We are now planning to make a permanent move to USA. Since he is now an Australia citizen and eligible for visa-waiver programme, is it possible for him to visit USA on Visa waiver programme and we complete the immigration process (i-130, 485 etc.)inside USA? I believe it could be faster than applying here in Australia.

Many thanks.
Cynthia

ANSWER: Hi,

An open intention to immigrate to the U.S. is not consistent with entry into the U.S. on the visa waiver program (VWP), which is designed for visitors.

However, entry made into the U.S. on the VWP allows for adjustment of status in the U.S. Thus, the I-130, I-485 etc. can be filed concurrently in the U.S. and your husband can adjust status in the U.S. without having to depart the U.S.

Additional information is here: www.h1b1.com/Uscitizen.htm

---------- FOLLOW-UP ----------

QUESTION: Hi Ajay,

Thank you so much for your prompt response.

I also wanted to seek your opinion about “Affidavit of Support” since I have not lived in USA for 8 years.  

We do not own a home in USA but we do own some vacant recreational land which was bought few years ago. And because we do not have jobs in USA it might lead to problem in meeting sponsorhip requirements?

Could we just show them our bank balance to meet the sponsorship requirements? We do not have kids and our joint savings are roughly US$90,000.00.

Your help in this matter is much appreciated.

Kindest regards,
Cynthia

Answer
Hi,

The minimum income requirement is $18,387 as per http://www.uscis.gov/files/form/i-864p.pdf

I recommend providing a U.S. address (even if it is in c/o somebody) when completing affidavit of support (Form I-864).

As per instructions of I-864 http://www.uscis.gov/files/form/i-864instr.pdf assets may supplement income if the consular or immigration officer is convinced that the monetary value of the asset could reasonably be made available to support the sponsored immigrant and converted to cash within one year without undue harm to the sponsor or his or her family members. You may not include an automobile unless you show that you own at least one working automobile that you have not included.

I recommend finding a joint sponsor who will file a separate I-864: A joint sponsor can be any U.S. citizen, U.S. national, or lawful permanent resident who is at least 18 years old, domiciled in the United States, or its territories or possessions, and willing to be held jointly liable with the petitioner for the support of the intending immigrant. A joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant.

You will be required to file I-864 for your spouse (this shows bona fide marriage) even if you cannot meet the income requirements, but as indicated above, a joint sponsor filing a separate I-864 will be very helpful in this particular case.

Immigration Issues

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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