mumstheword

My sons solicitor has sent this to the immigration attorney in NY :

I am C's Solicitor. The father has passed me your letter and I would like to clarify a few matters so that I can inform the court of the exact position. In particular, the court will want to know if C is guaranteed entry to the US and that he is free to travel back to the UK at any time.

Having looked at the US Embassy website, it states that, as a UK citizen, C would be eligible to travel to the US under the Visa Waiver Programme if he satisfies the list of requirements which includes:

A) An intention to stay in the US for 90 days or less - if his intention when he enters is to remain living there long term, would this be an issue when he enters the US?

B) Holding a return or onward ticket - As I understand para 3 of your letter, it could take approx. 3 months to process Form I-131 Application for Travel Document for Advance Parole. Therefore, presumably, if C arrived in December and allowing time off over the Christmas period an application could not be submitted until January which would mean his return ticket would have to provide for a trip back to the UK from 1st April 2009 onwards - is that right?

Is there any way in which C could travel to the UK within 3 months of entering and if so how and when could he travel?

What do you think? Haven't had reply yet

Noorah101

Instead of having this solicitor asking questions, I think it would be more beneficial to have an immigration attorney saying this is definitely NOT the way to immigrate. By asking questions, it just sounds like he's trying to clarify that it's OK, and likely Fragoman will say sure...that's all OK (even if it's not).

Rene

mumstheword

Yes thats what I thought. I replied and said that i want independant advice, after all, my ex is paying this attorney for their services

Noorah101

So wait...C's solicitor is working for you, or for your ex? I don't think he can be working in favor of both of you....

Tracym

Or he's trapping them into their answers - getting them to put things in writing. I don't know - but that would be smart, if it was so.

I do still agree re. another immigration attorney saying it isn't the way to go.

mumstheword

C's solicitor is meant to protect my sons interests but I dont see that contacting the father's immigration lawyer is doing that. I emailed the solicitor back and said that an independant view needs to be sought. It would be best if I could get something in writing from the embassy - have written to them but unsure how long that might take

Noorah101

Just my own take on the answers to what C's solicitor has asked:

No, there is never a guarantee of entry to the USA (although it seems most people with the VWP do gain entry). Yes, he is free to travel back to the UK at any time (although he won't be able to return to the USA unless he has AP in hand).

This is kind of the tricky part. A VWP entrant is not supposed to have the intent to remain in the USA and adjust status. However, if the POE officer never specifically asks if he has that intent, then the subject never comes up, so no...it's not really an issue when he enters the USA. It becomes an issue when the adjudicating officer looks over the AOS paperwork and wants to make a decision on approving his permanent resident status. At that time, if the AO feels he lied at the POE and actually had intent to remain in the USA, his AOS can be denied. From what I've seen on these forums, this rarely happens. I must say though I usually look at marriage-based visas, and yours is different, so perhaps in this case, an AO might say hmmmmm....

The date of the return ticket is irrelevant. Tickets can be changed.

C can always travel BACK to the UK anytime he wants. The issue is returning to the USA.
1. If he travels before applying for AOS, he can still go back & forth on the VWP, as long as he did not overstay his initial 90 days on the VWP.
2. After he applies for AOS, it usually takes only 60 days or so to get the AP in hand, so yes, in that case he can return to the UK within 3 months of entering and without abandoning his AOS.

I'm not sure I see the point of his questions, but I'm not a lawyer.

Rene

mumstheword

thanks for that - I take your point that people do enter the US on a VWP and then apply to stay but they should not do this and a UK court should not be allowing this as the method my son should use to enter the US with the definite purpose of staying. That's the stance I am going to take and hope it works!

Noorah101

I'm with you! And don't forget, your ex will need your written permission to remove C from the UK. If you don't supply that, chances are he's not going anywhere at all, not even for a visit.

Rene

ian-mstm

I realize the difficult situation you're in, but the UK has no jurisdiction to determine what the US will or won't allow with respect to entering the US. What the UK courts can do, is determine whether or not your ex is about to *compel* a UK citizen to deliberately break the laws of another country.

Ian

mumstheword

This is all very confusing!! I have spoken to the US embassy twice now and the first time I was told that my son must apply through the proper visa route and remain here while he does that. I was told that if he went on the VWP basis, that he could be stuck in the USA for some time because of paperwork(by stuck I mean would not be allowed back in if he left), which is what most of you thought. However, I then spoke to the embassy again - first time rang visa/immigration number, second time rang switchboard and was put through to American Citizen Services. They then said that it was possible to do the VWP thing but not something they advertise. It seems to be a minefield!!
My conclusion still remains that the appropriate route for my son, should my ex get the court order, of course, is that he should stay here, apply for the visa and then travel if and when he gets it.

Noorah101

You can call 10 times and get 10 different answers sometimes. Calling is not the best way to get the information you are after. An immigration attorney is much better.

Something being "possible", and something being "legal" are two different things. When I was talking to an immigration attorney on how to bring my fiance here, I knew absolutely nothing about immigration. I asked her, how about if my fiance comes to the USA as a tourist, can we get married then and he can stay?" Her answer was "USCIS frowns on that". Well, that doesn't sound TOO harsh, but I decided not to go that way, why would I purposely do something USCIS frowns on. So the embassy told you correctly that it's possible, but it's not something they advertise, why...because it's not the legal method. Some people risk it and never get caught, but that doesn't make it right.

I agree with you.

Rene

mumstheword

Hi all, court case today went relatively well. Judge has not yet adjourned case but said that if I can produce evidence that my ex has complained to the LCS recently, then he will adjourn. My ex sent a statement that he made 1 complaint 3 years ago and nothing since which I know is not true so I will be onto the LSC tomorrow for evidence. Also, judge says that my ex has to produce a letter from the US embassy stating that the process he is suggesting - VWP, then apply for visa when in USA is the correct process to follow and that my son will be free to leave and re-enter the US immediately - if ex can't produce this, then hearing will be adjourned.
So, fairly good result as I should be able to get evidence to get him on number 1 and dont believe he will be able to produce the second. So......watch this space!!

clarissageo

Glad to hear it went well for you.

I think your ex will have fun trying to get that letter off the embassy - It might be worth you trying to get a letter off them yourself, if nothing else it will alert them to his possible plans. Perhaps write to them explaining about the case giving all the details and ask for their legal standpoint on it for you to submit to the judge.

mumstheword

Hi - have already done that, sent a letter last week. i am also sending it to the British Embassy in Washington and Consulate in NY! In for a penny, in for a pound as we Brits say!!