Ask an Immigration Lawyer. Get an Answer ASAP.
Hello,my name is Judith. Thank you for this opportunity to answer your questions.
You have good intuition.
She cannot enter the US on a visitor status with the intention of staying and immigrating.
When she enters she will be asked a lot of questions because the inspector will see she has the visa for Australia as a student and has been out of her country for a significant period of time.
They may send her back to secondary inspection because they will want to question her about what ties she has to Northern Ireland.
She does run the risk of being refused admission and if she is administratively removed she faces a 5 year bar to coming back, even under sponsorship of her husband who is a US citizen.
If the inspector believes that she has lied it could get even worse - a permanent bar.
Often spouses of a US citizen do enter as a visitor and then spontaneously change their mind and stay and file for their adjustment.
But they are not coming here after being away from their country for a year and no longer having any ties there.
If they do things the right way they will face a separation of 6-10 months.
He will file form I-130 with the USCIS here in the US at the lockbox (PO Box)as per the instructions.He must include with the form a G-325A for himself and she along with 2 passportstyle photos of each of them.You can find those forms and instructions at this linkhttp://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=db029c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRDOnce the petition is approved (it will take 3-5 months) he will be notifiedand the petition will be sent to the National Visa Center. Inapproximately 2-3 weeks they will send him a bill for the immigrant visa fee$230 and your Affidavit of Support (I-864) $88.Once he pays these he will receive instruction on submittin the I-864 and shewill get her instructions on begining the immigrant visa process by submittingthe DS-230 Immigrant Visa Application.After that is received the USCIS will request her background/security check bedone by the FBI. When the clearance on her is received her file is forwarded to the US consulateor Embassy closest to her. She will then receive her instructions for her medical and visaappointment. She will be told what documentation to bring.Judith
As a clarification, she does have ties to Northern Ireland. Her entire family lives there. Her dad is a professor at the University and she has her mother and brothers also there. She has been attending Hillsong College in Australia for the last year and a half and just before she did both her and my son (who was also in Australia attending Hillsong at the time) came to the U.S. and they got married here. They then left and went back to Australia to finish her last year, but now due to financial trouble, she is not going to be able to stay for another year. They were planning to apply for a green card while they were there, but now they are faced with having to leave Australia immediately due to her Australian student visa expiring and they not having enough money to stay in school. Does this makes a difference?
No that does not change my answer.
I'm sorry. But I need to be honest.
She is a married woman and she is not coming here to visit, she has no intention of living back in Northern Ireland away from her husband when she enters here.
So it is a misrepresentation for her at entry and vary risky.
What if her and our son, who is a US citizen go to Ireland and stay with her family and apply for a U.S. visa there? My son would be able to stay for 3 months in Ireland, would that be long enough for her to get her U.S. visa, if applying from Ireland?
I'm sorry but maybe you missed it in my first answer, it takes 6-10 months for her to go through the immigrant visa process.
He can go and visit there for 3 months but she will not have her visa up to 6 months after that.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).