Move this Aussie from down under to up yonder.

October 26, 2008 1:26 PM

Immigration Law! Help me get my bagged Aussie into the U.S. and A.

Disclaimer: Know you're probably not a lawyer, and if you are, you aren't giving official advice. It's cool. :)

Okay, background: I am a 21-year-old American chick who moved down under in 2006 to live and study. Met a nice guy at paintball (yes, lawl) in mid-2007, fell for him, living together since late 2007. Engaged now. Wanting to move to the States--Las Vegas, NV area--in late 2009, when my study ends and visa in Australia expires. Australia is too expensive, in terms of cost of living and taxation and traveling internationally, for me to stay here; oh, and immigration is a friggin' bitch--much tighter for me to get in here, than for my fiance to get into the States, it seems.

The issue for us is that my fiance is self-employed (web developer), and so a work sponsorship is out of the question. We are looking at fiance and marriage visas now...but my God, there are so many to choose from! There are K1's (fiance) and K3's (marriage), and we have been told that the CR1 (think that's right) is also a marriage visa, but that it's faster than the K3. Everything is more complicated, since I am sponsoring his entrance into the country, but I am actually out of the country now, myself.

Essentially, we need a few things:

1) An immigration lawyer. Anyone know of one? We are happy to correspond via phone and email with someone who knows his or her stuff. (And yes, many things we could do ourselves--and we plan to still do that with any/all paperwork--but we have some questions about getting over his mother at some point, as well.)

2) To know which visa to get. We have begun filing papers for the K1 fiance visa, which would get him into the country, and then we'd marry within 90 days of his landing. We plan to send this off in December/January, so we'll hopefully get the visa in time and not have it expire by the time we can leave in September 2009.

3) Advice! I have posted on a few US immigration sites, and I've gotten good advice there, but we are always looking for more. If any of you have been in this situation, please share personal stories; we'll appreciate them!

Thanks so much ahead of time!

posted by metalheart to law & government (14 comments total)

I'm going through all this at the moment (English marrying an American living and studying the UK, going the K1 route.

1. You shouldn't need an immigration lawyer, your case is straight forward and plenty of people do it with out a lawyer (including us), its mostly a matter of filing in the forms and following procedure. Visajourney.com has the info you need.

2. K1 fiance visa is the easiest route to go generally. As I understand it you can only apply for K1 or K3, but go for the K1, marrying in your host country(Australia) if you are a student will create extra complications.

3. Don't panic. The worst thing we have had to encounter so far is the wait for bureaucracy to do its thing as it makes planning difficult. You are within a decent time frame and you should have the Visa in hand when you leave but check the projected time lines on Visajourney. They have excellent example applications, just reproduce theirs and change details as necessary. One gotcha to watch out for -- you will need a US (postal) address to deal with Immigration so make sure you have someone in the US who can receive and forward on your behalf. One you get your case number you can sign up for email notifications but you will still need to receive mail at some point.
posted by tallus at 1:53 PM on October 26, 2008

attorney: I used wolfsdorf immigration law group in santa monica to get my O-1 visa back in the day and was very happy with their services. I dealt with both bernie and cliff.
posted by krautland at 2:01 PM on October 26, 2008

attorney: I used to work for Ken Harder and I know he's done K-1s. I was his assistant, but it's been 10 years since I moved on, so there's no current connection.

Attorneys are like an insurance policy; you may pay what seems like an arm and a leg to get the paperwork done, but if something goes wrong, you have an advocate who's already familiar with the case and can leap right in. Only you can decide whether you need that insurance policy, though. If there's anything sketchy in your man's background--and get him to be 100% honest--I would go through a lawyer. Otherwise, it might be worth it to do the paperwork yourself.

If you do it yourself, make copies of everything and send everything return receipt or courier, so you have proof the agencies involved received everything and when they got it. Keep a folder with all your copies, preferably bound in by date. On the off chance anything goes wrong, anal-retentive record-keeping will save your bacon.
posted by immlass at 3:14 PM on October 26, 2008

I'm Canadian and immigrated to the US to be with my American husband, and we thought our immigration lawyer was worth every penny, even though we didn't have problems. Just knowing that somebody had my back made the whole process much less stressful, and we avoided some mistakes because he was able to point them out to us. I'd recommend but he only deals with cases in Tennessee afaik.
posted by joannemerriam at 3:44 PM on October 26, 2008

The reason people have suggested the CR1 is that the US embassies and consulates in Australia do "direct consular filing" or DCF. This process is vastly quicker than the normal process because things don't go through USCIS.

If you are in Canberra, Melbourne, Perth, or Sydney, or conveniently near to them, I would either do a walk-in or make an appointment (see the link before) to talk to an officer their about the DCF process. Their general statement about the process is this.

I would strongly recommend marrying in Australia and going DCF. This has nothing to do with getting things done quickly; you have plenty of time to get a K1 through the system. What doing DCF means is that your husband will enter the US with an I551 stamp on his passport, as good as a physical green card until he gets one of those. It means you don't have to go through Adjustment-of-Status hell when you get back to the US, and ho-lee shit does AOS suck.

If your fiancee does not have a criminal record and you are both detail-oriented, you should feel comfortable tackling this process without a lawyer with the assistance of visajourney and alt.visa.us.marriage-based .

One thing: given that you're a student, unless you're a rather odd one you're going to need someone else to help you with the financial responsibility stuff by being a cosponsor on your I-864. This is a nontrivial thing to do, obligating them to pay back the government in the event that your hubby becomes a deadbeat and takes any of a variety of government assistances.
posted by ROU_Xenophobe at 4:08 PM on October 26, 2008

Are you SURE it's easier for you guys to move to the States? I'm an American who moved to Sydney with my Aussie, and it was way easier for us to do it that way. If you've been living together for a year, you can qualify as a "defacto" spouse. That means you can apply from within Australia, you don't need to leave and come back, and they'll give you a bridging visa so you can work in the meantime. I got here in December and submitted the application in February, and they immediately granted me a bridging visa (which allowed me to overstay my original tourist visa and to get a job). In May I was notified that it was all approved. Two years later they called us up to see if we were still together, at which point my temporary residency became permanent. Two years after that, I got my dual citizenship. You don't even need to get married! (We ended up doing it anyway a few years later, but if you get defacto, you're as good as married in the eyes of the law anyway.)

The few times I looked at getting him into the US it was just bewildering. It's all lawyers and acronyms and Adjustments-of-Status, etc. I found the process here really straightforward. Seriously, I can't think of why it wouldn't be easier for you to stay here. I've got a Kenyan friend who actually overstayed his visa here and GOT DEPORTED, and still managed to come back in, marry his Aussie girlfriend, and get his residency. If you can afford the fees and put up with the paperwork, Australia probably won't turn you down.

That said, I agree with you on Australia being more expensive... but you'd have to pay me an awful lot to get me to move back to the States at this point.
posted by web-goddess at 5:20 PM on October 26, 2008

Thank so much to everyone who has replied so far. It's really great to get feedback, even if it's only to reassure what we've already known or what's been told to us.

Thanks Krautland and Immlass, for the immigration lawyer suggestions. Though we really only want someone for a brief consultation, and to ask about his mother, it's good to get some names of lawyers from people who've dealt with them or been around them.

ROU_Xenophobe, you are the first to mention this to me! I will relay this to my fiance, as it sounds really promising. Thank you so much! As for the financial responsibility, we have that covered, as he does have relatives in the US (a first cousin who is a citizen as well), so there's that. I certainly can't support him--he supports me sometimes! Doh!

Web-goddess, you have been extremely lucky with the Australian immigration system, I think! I, on the other hand, have been very unlucky, actually, as have a number of my friends. I had trouble just getting my student visa, because they messed up; it resulted in my having to pay for it twice, too (once for when I was outside Australia, another for when I was in). The defacto visa is, in my opinion, a lot more time-consuming, daunting and--most certainly--more expensive than the fiance visa we're looking at. We had been looking into the defacto one before, actually.

Maybe it was when you did it. When we were looking at it, last year, the laws were changing so frequently that I never knew what I would be required to have from one time to the next. Also, my being a student, with no employment readily in sight, particularly since we both plan to work from home together, as freelancers (I'm a web designer), once I'm through, seemed to make it that much more difficult. We also couldn't get a defacto visa until we'd lived together for a year, and at that time we hadn't. Our friends were going to have to write essays about our relationship, etc...

But what it came down to was cost of living, really. My fiance, since becoming self-employed, has done quite well, and taxation here doesn't really favor that as much as it will in the US. (This is also one of the reasons we're keen on NV--no state income tax, and a low-low sales tax. Not to mention gambling and 'hos--I jest.) We will literally save thousands a year, simply due to being in an economy of larger scale, as well as one that has lower taxation. That, to me, does make it worth going back.

Australia's nice, but I'd hate to live here forever, really. It's just too far from the rest of the world. I can't easily, or very affordably, travel to Europe or much elsewhere, which I want to do. I have visited so many places in the States, too, but there are hundreds more I want to go to. Over time, the cons have outweighed the pros, even if I will visit here later on, when I no longer live in Australia.
posted by metalheart at 6:45 PM on October 26, 2008

i'm a us citizen married to an aussie. we got married in the uk in july of 2003, and applied for a green card shortly a couple of months after the wedding at the us consulate in singapore. the temporary permanent resident visa came through by november, and we activated the visa when we entered the us to spend christmas with my family in austin. we finalised our move to austin in april of 2004. two years after activating the temporary permanent resident visa, we had to submit some additional paperwork in the form of affidavits etc and the permanent permanent visa came through shortly after that.

there were no lawyers involved, and the whole thing was actually fairly simple.

good luck.
posted by netsirk at 7:24 PM on October 26, 2008

> Our friends were going to have to write essays about our relationship, etc...

Oh, we had to do all that. I didn't mean to imply that the system was completely effortless. I had to get police clearance, medical checkup, statements from our friends, statements from each other about our plans for the relationship, proof that we were in a *real* relationship (photos, joint bank accounts, letters addressed to the both of us, etc). I also remember it costing something like $1600 at the time. (This was in 2002.) I don't think you're going to avoid that stuff no matter where you go. It wasn't anything we needed a lawyer for, though.

Have you seen this flowchart? That's pretty much why we aren't moving to the US anytime soon. Even in a best case scenario, they're talking about 6-7 years to get citizenship. Crazy.

> It's just too far from the rest of the world. I can't easily, or very affordably, travel to Europe or much elsewhere, which I want to do.

Fair enough. I got the travelling bug out of my system before we settled here.

The tax/income issue is an interesting one. When my husband and I met, we were both living in London and earning more money than we could spend. Our quality of life was crap though. We make a lot less in Sydney, but we're both happier for it. To each their own, I guess!
posted by web-goddess at 8:17 PM on October 26, 2008

Have you seen this flowchart? That's pretty much why we aren't moving to the US anytime soon. Even in a best case scenario, they're talking about 6-7 years to get citizenship

You have serious misconceptions, and that flowchart is just plain wrong about the timelines. It would take you a few months, if that, to get the material together to file DCF. This would get your husband into the US with a green card.

If you've been married for two years, your husband's next step is: file for citizenship in 2 years nine months. Current processing delays are around ten months. It took you about four years to get Australian citizenship, and it would take your husband around four to get US if he wanted it. If he doesn't want to, he just needs to renew his green card every 10 years.

You want easy immigration processing, the UK is the usual example. Getting leave to remain as a spouse or fiancee is pretty simple -- ask specklet.
posted by ROU_Xenophobe at 9:58 PM on October 26, 2008

You obviously know more about it than I do! I had no idea the flowchart was inaccurate. It was linked all over the Internet in the past few months, and I can't find any discussion of it being "just plain wrong". (Granted, I've only been looking for the past 10 minutes.) I'm not saying you aren't right about the flowchart, but if you are, it's weird that so many people are willing to believe the system is that broken.
posted by web-goddess at 11:35 PM on October 26, 2008

You will need to check with the US embassy in Australia as to whether they will do a Direct Consular Filing for you — we looked into this in the UK and the UK embassy won't do it for students, only for US citizens who have non-temporary residency status in UK.
posted by tallus at 2:55 AM on October 27, 2008

The system is that broken in that it is very, very difficult to gain admission to the US if you aren't the spouse, fiancee, parent, or child of a citizen. But... metalheart's fiancee, or your husband, are the spouse, fiancee, parent, or child of a citizen. It's simple, if fussy and time-consuming, for them to emigrate to the US... so long as they don't have a record.

The just plain wrong thing is the timeline -- it should not take six or seven years for a spouse of a citizen to get citizenship. The best case is about 3 1/2--4 years. The flowchart conveniently "forgets" that the path to citizenship for spouses is shortened by 3 years.

Put differently, the point of that flowchart is not that it's difficult for people like you or me to import our schmoopies (unless we're gay, which they should also have put in). The point is how broken the system is for foreigners who are not the schmoopy of an American citizen.
posted by ROU_Xenophobe at 6:04 AM on October 27, 2008

My fiance and I are now doing a CR-1. It is a breeze--much, much easier. I can't thank you all enough for all this valuable information. It's made the whole process a million times better.
posted by metalheart at 12:28 AM on November 26, 2008