element6

So, I'm utterly confused because I just had a consultation with a lawyer.

My wife (UKC) and I (USC) have been going back and forth for the past 3 months about everything and very intensively over the last month since we got married. We finally caved and decided to talk to a lawyer because we were ready to try to attempt her claim to US Citizenship through her father (USC).

We entered into our consultation with the lawyer presenting all of the evidence regarding her claim through her father but she stopped us almost right away and asked us why we were pursuing that route when we were married already.

We were told that my wife (UKC) can simply enter the country as a tourist in another 2-3 months when she wants to come over to visit family, and then remain here, living with me, and apply for an AOS from within the country around the 60 day mark in her stay.

If it's really that easy, then why have we been racking our brains over CR1's, K1's, and attempts at claiming citizenship through parents?

I never see this mentioned on this forum but I have seen it elsewhere.
Examples:
Can my spouse travel to US to visit while i-130 visa is processing? - Page 2
Immigrants who overstay can apply for green card if married to a citizen - NY Daily News

Noorah101

Excellent. If her father is able to pass on his US Citizenship, then she's already a USC, and just has to get a US Passport. This is the best of all possible luck! It totally bypasses the time and cost of having to get an immigrant visa.

Um....because if she's already a USC by virtue of having a USC father, then why not pursue it? Wouldn't make sense not to.

Unfortunately, many lawyers suggest this route. Did you happen to ask the lawyer what would happen if her AOS is denied? You should ask that question before going any further with this plan. Also, what an immigration lawyer tells you behind closed doors is probably different than they would say in an open forum. It's illegal to enter the USA as a tourist with the intent to remain and adjust status to permanent resident. Do people get away with it? Yes. Is it legal? No. The AOS route is for those folks who are already in the USA under some other status (work, student, i.e. they are not tourists). The thing is, one is not supposed to have the intent to remain, prior to entering as a tourist.

Because you want to do things the legal way, without having to worry about whether the AOS gets denied (which can result in removal from the USA and a ban from returning...and if the entry was on the VWP, there is no recourse to fight the decision...the Immigration Officer's word is final). So the CR-1 and K-1 are the legal methods to enter the USA via marriage to a USC.

Well, this exists because it's the best case scenario.

Because we promote the legal methods of immigrating.

I haven't read the articles, but going by the titles....yes, it's possible for a spouse to visit the USA while an I-130 is processing. And yes, it's possible for someone who entered the USA and overstayed, to marry a USC and adjust status....although it depends on how they entered the USA. And of course you wouldn't want to do this on purpose.

The first thing you should do, before going any further, is to find out if your wife is a USC already. If she is, then everything else regarding immigration is moot.

Rene

element6

Rene, Thank you so much for the detailed reply.

I figured the AOS route was flawed and risky in some way. Thanks for the explanation.

The reason that pursuing her claim as a USC is so difficult is because of the insane effort we have made up to this point to obtain info on her grandfather, who was in the USAF and is the reason her US born father ended up in the UK.

Her grandfather completely left the family without a trace of contact to follow around the time her father was 17 (so her father would no longer have been considered to be living in the "same household" after this point) and he retired from the USAF when her father was 17 or 18. Around the same time, her grandmother (UKC) obtained a divorce. So by 17 or 18, her father was no longer a member of his fathers "household" and was in the custody of his UKC mother.

Her father spent the first 10-12 years of his childhood in the US, but the hard part that we are having trouble with is proving that he spent 2 years total on US soil (or as a member of his father's household in this case) after the age of 14.

My wife was born out of wedlock in the UK in 1990 to her mother (UKC) and father (still USC at the time with no UK citizenship until 1991 but lived in the UK from the time the family moved over with his USAF father). Her parents were married in 1991 and are still happily married today.

According to everything we have read, as long as we can prove that her father spent the required 5 years (no problem) and 2 of those years being after the age of 14 (this is where we are having trouble substantiating evidence because her grandfather disappeared), then she could have direct claim to citizenship.

From USCIS:
The only other thing we are wary of at this point is that she only has a UK Birth Certificate (no Consular Report of Birth Abroad of a Citizen of the United States of America) and she is clearly over 18 now. So as much as we'd like to believe that what we've read up to this point would make her eligible to take a trip to the US Embassy in London with her father and get a passport.. something makes me believe this would only make her eligible for the N600 form route.

That would clearly take forever and push us right back to our best option being the CR1.

Noorah101

If she's able to take the trip to London with her father, that means he's still living. Can't she just ask him if he lived in the USA for 2 years at any point after his 14th birthday? If the answer is yes, then it should be fairly easy (although of course with some legwork) to gather evidence....school records and medical records come to mind immediately.

If his answer is "no", then you know the coast is clear to do the CR-1.

The thing is, if she's already a USC, she's not eligible for a visa to the USA. She would need a US passport instead.

Rene

element6

Thanks again Rene! We are going to keep at it with her claim as a USC. If we can just obtain a divorce decree from her grandmother (living) and some school or medical records for her father (indeed, he is living), I guess we have a real shot at this. No other method is more straightforward than this one.

Noorah101

Why do you need the grandmother's divorce decree?

Rene

element6

We need to prove that her father was a member of her grandfathers (USC, USAF) household during the time he was serving. Her grandmother is a UKC and took custody of her father and uncle after the divorce. The dates are fuzzy and her grandmother does not remember the exact year they divorced.

If, for example they divorced when my wife's father was 15, she won't qualify. 2 of the years he spent in the household of an active US service member must be after the age of 14. The divorce decree is one thing that would establish those two years. Her fathers medical or school records are the other piece of the puzzle to establish where he was living and reaffirm the dates.

Hopefully my assumptions there are correct. It's been an absolute nightmare trying to find the records of a ghost.

We found her grandfathers Air Force ID and birth certificate, but still haven't found a way to get his SSN. It's not on the marriage certificate since her grandparents married in the U.K. Without the SSN we can't request a copy of his DD214 (separation documents) from the Nationals Archives in the US.

Noorah101

I guess I'm just surprised that her father doesn't know whether he lived in the USA after age 14, and for how long.

I'm sure others will chime in to this thread, too.

Good luck with everything!

Rene

element6

Oh jeez.. I'm sorry.. I forgot to even clarify that part.

After her father was 10 or 11 the whole family was living in the UK. Her grandfather was active duty at a US Air Force base there. So as long as her father was a member of her grandfathers (active service) "household", meaning, her grandparents didn't get divorced before her father turned 16, she should qualify.

S Folinsky

I am not party to all the facts. But sometimes, these derivative citizenship claims can be a real PIA to prosecute.

When I was in practice [and in my volunteer work] was "what do you want? what can I do for you?" And often the question is not really a legal one. So, what do you want? What is your practical goal?