Ive been doing some research for the people who are wanting to go back to the USA with their UK spouse but do not yet have Indefinite Leave to Remain in the UK (ILR). Im aware that the embassy has recently started to deny DCF petitions from US citizens residing in the UK to try and curb the use of the priviledge to circumvent long application processing wait-times for petitions filed at the US Service Centers. Reading some of the posts made lately it seems like a lot of newly weds have decided that the UK just isnt the place for them and are trying to move back to the USA but do not know where to file since several vague changes have been made at the Embassy on who they will process petitions from. Im here to shed a little light on what to do and let everyone know that there IS hope. This process ISNT as daunting as it seems to be.
If you are married to a UK Citizen and wish to apply for an immigrant visa on their behalf so that they can move with you to the united states AND you do not yet have your ILR your petition will likely be denied if you choose to submit it to the Embassy for processing. Their requirements have recently changed, although admittedly they are veing quite vague on what the new requirements are. Contact the embassy and ask if they will accept your petition for Direct Counsular Filing - give them YOUR specific details. If they say they do not have jurisdiction over your petition you MUST file through the US Service Centers.
You do NOT need to return to the United States in order to file your petition. Instead of submitting your petition to the Embassy, send it to the service center which has jurisdiction over the place in which you LAST resided in the United States. (Supported by: "I'm not eligible to file in London, where do I file the petition?: If you are not eligible to file the petition with the Department of Homeland Security (Immigration), London, or you reside in the United States, you should file the petition on behalf of your relative with the United States Citizenship and Immigration Services (USCIS) office having jurisdiction over your place of residence or last residence in the United States. A list of offices and the mailing addresses is available at www.uscis.gov"
- Link to this document
After the petition has been submitted to the USCIS Service Centers as above you have two options.
1. Stay in the United Kingdom while the petition is being approved then file for the Immigrant Visa at the Embassy as per usual. The interview takes place, the "green card" is granted, and then you both move together to the United States.
2. Apply for an Interim non-immigrant visa called a K-3 / K-4
(K-3 for spouses, K-4 for children). This interim visa was brought into effect in 2001
and is for the purpose of keeping a family unit together during lengthy application wait-times. The K visa will allow the foreign spouse (or child) to travel to the United States with their US Citizen spouse (or parent) and reside WHILE the petition is being processed.
The requirements are that you must be a spouse or child of a US Citizen and you must already have a petition in progress. K visas are valid for multiple entries and are valid through the length of the application process. Once the petition has been approved Form I-485 (Application to Adjust to Permanent Residence) must be filed. Upon approval of I-485 a green card will be granted. K visa recipients are also eligible for employment authrization while their application is being processed by submitting form I-765 and a $100 application fee in addition to the I-129F which is used to apply for the K visa itself. Do not be mistaken - although form I-129F is the Petition for Alien Fiance(e) it IS the correct form to file for K visas for your spouse / children. A different address is used to send K visa applications to. Following approval of the Form I-129F, the petition will be forwarded to the Embassy in London so that the alien beneficiary may apply for nonimmigrant K-3/K-4 visas.
It's a lot of paperwork but it will enable both the US Citizen and UK Spouse to reside in the United States while the Immigrant visa applications are being processed. In cases where the US Citizen wishes to be present in the US for the support of family members, for instance ill parents, this may be a great way to have your cake and eat it too. From USCIS Guide: How do I Bring My Spouse to Live in the United States?
: "Can My Spouse Come to the U.S. to Live While the Visa Petition Is Pending?: If you are a U.S. Citizen, once you file Form I-130, your spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. The Form to file for this benefit is Form I-129F. It is not necessary for your spouse to obtain a K-3 visa in order to come to the U.S. to live and work. Your spouse may wait abroad for immigrant visa processing. However, seeking a K-3 visa can be a method for him or her to come to the U.S. more quickly."
More information on K visas can be obtained through these links: August 14 2001 Press Release on K Visas
, USCIS Guide: How do I become a K-nonimmigrant...?
, LIFE Act Information
, USCIS Guide: How do I bring my spouse...
I hope that this information is usefull to many of the couples who are now being turned away from DCF. Id like to remind people that this information is free and widely available from the USCIS website. It really does pay to do your research and do it well. My advice to couples who are about to embark on this journey is - do not feel overwhelmed by the forms and the "lack" of information. Read the instructions again and again. Read everything you can get your hands on. ALL of the information you need to do this is right at your fingertips. Sometimes when you look at the forms too hard it feels like the questions are impossible to answer or the directions are too vague. Relax and look again - its all right there and its not has hard as it feels. Dont panic - it WILL work out.
Best of luck to all of you.
PS: If any information here is found to be invalid or misleading please let myself or the moderator know so that it can be stricken from the reccord or made accurate. Thanks for your help!