Duncan Roberts

I think that would be an interesting point of entry story. Father is British who is married to an American and lives in America. Mother is British and lives in Britain. Son entering on the VWP with (presumably) no return ticket. If I was the agent I would certainly be asking questions.

scrubbedexpat099

May have a return ticket, just not intending to use it.

Seen it done many times.

But mother certainly has plenty of opportunities to put a stop to it, if she wants to.

Tegwyn

I would be making all sorts of hostile noises to my solicitor if he was not paying attention to the ex's intentions. Surely custody cannot be granted simply because the father has moved overseas?

Elvira

There are ways of preventing this from happening - BUT the OP needs to be proactive!

Here is a past post from Lansbury, who I believe used to work in child abduction prevention:

http://britishexpats.com/forum/showp...6&postcount=58

mumstheword

HI - I definitely dont want him to go and am trying to find out about the process so that I can show that my ex is not following it.

Noorah101

Yep, that link I posted shows clearly that one cannot have the intention to immigration on the VWP.

Also look up on www.uscis.gov, Immigration Forms, I-130. This is the form the USC (your ex's wife) must file in order to get an Immigrant Visa for your son, so that he can immigrate to the USA.

Rene

Elvira

What's the point of this? She clearly does ***NOT*** want her son to move to the US.

So that is what she ought to be concentrating on. I just hope her solicitor knows what he/she is doing. Judging from the OP's posts, I have grave concerns in that regard.

meauxna

At least your first post is better explained now... when you first asked about a 'visa application' we all assumed he was doing this correctly and actually applying for a visa before they leave.
BUT it appears that your ex is planning something different.. which is what you understood all along. They won't be applying for "visas" but will be applying for Permanent Residency (green card) from inside the US.

You are right about no-visiting during that time. Your son may be landlocked in the US for 3-18+ months while they are waiting on those applications.

Your ex shouldn't be allowed to take your son out of the UK even for a visit without your permission, as I understand it. I don't see how an immigration lawyer can help you, but your family lawyer may need to consult with one.
Who normally has custody of your son?

Noorah101

I was thinking if she knows the correct document needed to immigrate, she can point out in court that her ex does NOT have one of those in the system already, therefore nothing has been started for the child's immigration.

Sorry, I see now that wasn't clear.

Rene

Elvira

I take your point, but if this was the sole issue, the Court could simply order that the correct documents/visa are produced before the father is granted the right to remove the child from the UK. If the OP wishes to retain physical custody, she needs to show that (a) the son does not want to move, and/or (b) that he will be better off with her in the UK.

Plus, as I have already pointed out, she needs to contact the relevant authorities as a matter of urgency to alert them to the possibility of her ex taking the child out of the UK against her will.

meauxna

Because of what mum wrote here:

mum, I'd follow up on that info from lansbury, and get cracking sharpish. Even if your son goes to the US and his dad puts in the application for son to stay, when it comes time to complete the process, they're going to need that document from you.

mumstheword

My ex has supplied the following info in his statement to the court on a headed letter from an attorney in New York : 1. As a UK citizen, C will be able to enter the US under the VWP.
2. Upon entry to the US, your wife may file an I-130 Immigrant Petition for C as her stepchild. The application will process in approx 12-18 mths and you, your wife and your son may need to attend an interview with USCIS in New York.
Once the petition is filed, C will be able to legally stay in US and attend school.

Tracym

It's not legal to AOS from VWP with prior intent for a spoue. Are we sure that the same applies to a child/stepchild?

Especially since an attorney seems to be officially recommending it?

meauxna

mum, what your ex proposes is illegal. Using the VWP is in effect saying 'I am coming to the US for a visit. I have a home outside the US that I do not intend to abandon. I will leave at the end of my permitted stay.' The statement from your ex show clear "immigrant intent" and unpermitted use of the Visa Waiver Program.

While this is a document regarding people who intend to come to the US to marry a US citizen, the principle is the same because the way they become US residents is by being "immediate relatives" of a US citizen.

I'm amazed that a US immigration attorney would be willing to write up that document to be presented in court AND presumably at the boy's interview?

What if my fiancé(e) uses a different kind of visa, or enters as a visitor without visa, to come here so we can get married?

There could be serious consequences. Attempting to get a visa or enter the U.S. by saying one thing when you intend another may be considered immigration fraud, for which there are severe penalties. Those penalties include restricting a person’s ability to get immigration benefits, including permanent residence, as well as a possible fine of up to $10,000 and imprisonment of up to five years. It is not appropriate for your fiancé(e) to enter the U.S. as a visitor with the intent to marry you and remain to try to become a permanent resident. It is appropriate, however, to enter as a visitor to have the wedding in the U.S. and then return to a foreign residence for further processing for U.S. immigration as a spouse.
You should come prepared with proof of your clear intentions in this regard.

Elvira

There was a case a few months ago where a Brit mum was considering having her daughter 'come and stay'. The clear advice at the time (including from Mr. F, if memory serves me right), was that this was illegal.

[What was her name again....... married to a USC soldier.......... whatever happened to her...]