AB's Immigration Status

[panthera]

Now if EB divorses AB....where does AB stand?
Will AB or can AB be deported BEFORE he is charged wth ANY crimes here???

That would be a great question for this thread:

"Questions for our Verified Lawyers"

[ame="http://www.websleuths.com/forums/showthread.php?t=118913"]http://www.websleuths.com/forums/showthread.php?t=118913[/ame]


However I would predict an arrest before the divorce.....MOO

 

[Verity]

I'm not picking on you

Yes you are, but no big deal. I thought every opinion counted on this forum and that unless someone was verified as an expert, (which everyone knows I am not) their posts were to be treated same as anyone else, so I wasn't aware that i was doing anything wrong, but if I am, I am happy to be corrected.

As it happened, my green card and my daughter's card was for 10 years, not 2 years, and no conditions were applied, so that part can't be taken as read. An Alien# is not a visa, it's a file reference number, that's all. I certainly could not get an SS# card for 2 years until the green card was granted, but of course they want you to pay taxes, so getting a tax ID is easy, which anyone can get and looks the same as a SS#, but it isn't the same thing.

Everyone's experience differs, so I'm sure we're both correct. I just think the immigration situation could be extremely complicated and you're discounting lots of different possibilities. They were married, we know that for a fact, so posting things that aren't relevant to married couples is only helpful if you think they may have first applied before they got married. I guess they could have done, but that wasn't the situation I was addressing in my response, so the whole thing is now very confused. They may have first applied in Australia at the consulate there, or aborted various applications before or after they were married. There could be applications in Australia and/ or US. It's a very frustrating process and designed to not be successful, so multiple applications would not be unusual, as well as files moving from one place to another.

I rarely speak up, and TBH, I am now a bit mortified to think I've caused trouble by doing so, so I think it's best that I stop. If anyone wants to know anything else about my experience immigrating with a 10 yr old child, feel free to send me a pm, and I'll respond that way from now on, not publicly, as I don't want to get shot down when I'm only trying to help..

 

[Paulette]

Wrong! If you overstay a visa you are technically illegal! The law is you must leave before your visa expires. You can then apply from out of the country for another visa. The minute you overstay a visa you are in the US illegally.

And the minute he is released from prison, he'll be deported.

 

[darnudes]

Just stumbled on this interesting post by EB to a website indicating that they tried to get immigration papers in June 2009. Perhaps this is what the "passport photos" were for.

Needless to say, she claims they were ripped off so did they try something else?

http://webcache.googleusercontent.c...m6.htm+gothicfairy68&cd=6&hl=en&ct=clnk&gl=ca

What a tremendous find, well done Kamille! So just as we suspected they were passport photos.

 

[NancyA]

Yes you are, but no big deal. I thought every opinion counted on this forum and that unless someone was verified as an expert, (which everyone knows I am not) their posts were to be treated same as anyone else, so I wasn't aware that i was doing anything wrong, but if I am, I am happy to be corrected.

As it happened, my green card and my daughter's card was for 10 years, not 2 years, and no conditions were applied, so that part can't be taken as read. An Alien# is not a visa, it's a file reference number, that's all. I certainly could not get an SS# card for 2 years until the green card was granted, but of course they want you to pay taxes, so getting a tax ID is easy, which anyone can get and looks the same as a SS#, but it isn't the same thing.

Everyone's experience differs, so I'm sure we're both correct. I just think the immigration situation could be extremely complicated and you're discounting lots of different possibilities. They were married, we know that for a fact, so posting things that aren't relevant to married couples is only helpful if you think they may have first applied before they got married. I guess they could have done, but that wasn't the situation I was addressing in my response, so the whole thing is now very confused. They may have first applied in Australia at the consulate there, or aborted various applications before or after they were married. There could be applications in Australia and/ or US. It's a very frustrating process and designed to not be successful, so multiple applications would not be unusual, as well as files moving from one place to another.

I rarely speak up, and TBH, I am now a bit mortified to think I've caused trouble by doing so, so I think it's best that I stop. If anyone wants to know anything else about my experience immigrating with a 10 yr old child, feel free to send me a pm, and I'll respond that way from now on, not publicly, as I don't want to get shot down when I'm only trying to help..

I'm sorry you think I'm picking on you, no one is saying you have caused trouble and I'm not trying to score points but I think it important to have the correct info out there out there. All opinions are of course equally valid but much of what you are putting forward as fact just isn't, or at least not current fact. I don't know what the process was for you and your daughter 12 years ago, but even you concede that rules and conditions have changed somewhat since 9/11, well, they've changed and are still changing since I was going through the process starting just over 3 years ago so to be doubly sure I've been checking my facts with the USCIS website. Sorry once again if you feel this is personal, it really isn't.

 

[WhyaDuck?]

Hi folks - The aim is to exchange ideas and information and opinions amicably towards a common goal, doing so in a way that welcomes input. If you disagree, please do so respectfully. If you feel people are not being respectful, do not reply - simply hit the alert triangle, and a mod will check in. Stick to the post, not the poster. A good rule of thumb is to avoid using the word "you" when you are heated up.

Please continue a good discussion of this matter.

This post falls at random.

 

[BritsKate]

I've reread my last post 100 times and I just can't work out where the information I posted is wrong. I just didn't go into a lot of detail so I guess I should clarify:

- It is my belief, based upon what info has been released, that AB entered the US under the VWP or had a tourist visa.

Under VWP: he could have remained in the country for up to 90 days claiming tourism or business reasons. Prior to January of 2009 he would not even have needed an ESTA. Using the VWP the foreign national is not allowed to seek a change in status.

Under a B1/B2 (tourist) visa: He would have been allowed to stay in the country up to 6 months but he would have to also show his intent to return to Australia and that he had access to sufficient funds. He would not have been allowed to work under this visa. While those travelling under the B1/B2 visas do have the right to apply for a change in status there are restrictions on what status you can apply for. I do not know if K3 (spousal visa) would qualify since you must show there was no preconceived intent to change status. Furthermore, a B1/B2 holder can also apply for an extension of their visa but still must show proof they intend on returning to their native country.

IF he either overstayed the 90 day limit under VWP or 6 months under a B2 and later made an application for residency that overstay would definitely count against him. His visa may or may not have been denied but it would have been taken into account. If he made application for residency prior to the expiry of 90 day/6 mo then he would not be in violation of immigration law.

What leads me to believe he did not enter the country with a K3 visa is the burden of proof required. 1) The sponsor has to prove income level 125% above the federal poverty level. In 2008, according to HHS, this would have been $17,600 for a family of 3 meaning EB would have to earn $22,000 or have a cosponsor for an affidavit of support. 2) AB would have had to supply the USCIS with legal documentation showing all other persons responsible for Zahra (as dictated by custodial court order) were aware of her intent to pursue residency. 3) Both sponsor and applicant would have had to submit an overwhelming amount of supporting documents. 4) AB would have had to seek a consent order from the family court allowing the removal of Zahra from Oz if he did not have ED's consent and current CO did not specifically address relocation. Even with ED's consent it is highly recommended AB petition the court for a modification of custody.[Source: Australian Federal Police Family Law Kit and Family Law Act 1975, revised 2006]

Saying all that there are dozens of variables and each immigration case is unique. EB may have forged financial documents; AB could have doctored a court order - anything could have happened but I think AB and EB would have taken the path of least resistance in way of emigration thinking they'd sort it all out later. JMO

 

[NancyA]

Under VWP: he could have remained in the country for up to 90 days claiming tourism or business reasons. Prior to January of 2009 he would not even have needed an ESTA. Using the VWP the foreign national is not allowed to seek a change in status.

Respectfully snipped, and confirming that all the info you posted is in accordance with current USCIS practice.

Just some clarification of the point above, there is one exception to this rule (yours truly being a living example) the foreign national may not apply for a change of status under the VWP unless they marry a US citizen/other legal resident during the 90 days the VW is in effect. In that case the married couple must apply jointly for the change of status based on that marriage, once again, before the 90 days is up. The petitions must be postmarked with a date within that period otherwise, as you state, the petition is very likely to be denied on the overstay grounds.

 

[BritsKate]

Respectfully snipped, and confirming that all the info you posted is in accordance with current USCIS practice.

Just some clarification of the point above, there is one exception to this rule (yours truly being a living example) the foreign national may not apply for a change of status under the VWP unless they marry a US citizen/other legal resident during the 90 days the VW is in effect. In that case the married couple must apply jointly for the change of status based on that marriage, once again, before the 90 days is up. The petitions must be postmarked with a date within that period otherwise, as you state, the petition is very likely to be denied on the overstay grounds.

Doh! I meant to add that - really...:angel: Thanks for the clarification. :blowkiss: Any clue on transferring from a B2 to a K3 though? I read the form guidelines for change in status (I think its I-539?) but all it stated is that you could not use that form for a K3. Everything else I am finding is changing a B2 to a K1 which obviously doesn't apply.

 

[Kamille]

Well I have to say that I appreciate all views on this immigration issue and everyone's input is valid and very important. After having read all of the posts, I am convinced that there is no way EB and AB would have been able to navigate this on their own. They made one attempt through a fraudulent website that we're aware of and I guess it's possible they spent more money to find an appropriate immigration specialist to help them but I somehow find it most unlikely.

EB can't even get keep her driver's licence or vehicle registrations up to date. How on earth would she be able to keep all this documentation in order?

But someone did raise and interesting point. I have not seen any traffic offenses for AB in the criminal records thread so I'm wondering if he has a NC driver's licence. When he was charged with other offenses, what identification was used to file those charges? Shouldn't the immigration issue have been addressed then? Especially on the charges from May of this year. :waitasec:

MOO

 

[2goldfish]

I've reread my last post 100 times and I just can't work out where the information I posted is wrong. I just didn't go into a lot of detail so I guess I should clarify:

- It is my belief, based upon what info has been released, that AB entered the US under the VWP or had a tourist visa.

Under VWP: he could have remained in the country for up to 90 days claiming tourism or business reasons. Prior to January of 2009 he would not even have needed an ESTA. Using the VWP the foreign national is not allowed to seek a change in status.

Under a B1/B2 (tourist) visa: He would have been allowed to stay in the country up to 6 months but he would have to also show his intent to return to Australia and that he had access to sufficient funds. He would not have been allowed to work under this visa. While those travelling under the B1/B2 visas do have the right to apply for a change in status there are restrictions on what status you can apply for. I do not know if K3 (spousal visa) would qualify since you must show there was no preconceived intent to change status. Furthermore, a B1/B2 holder can also apply for an extension of their visa but still must show proof they intend on returning to their native country.

IF he either overstayed the 90 day limit under VWP or 6 months under a B2 and later made an application for residency that overstay would definitely count against him. His visa may or may not have been denied but it would have been taken into account. If he made application for residency prior to the expiry of 90 day/6 mo then he would not be in violation of immigration law.

What leads me to believe he did not enter the country with a K3 visa is the burden of proof required. 1) The sponsor has to prove income level 125% above the federal poverty level. In 2008, according to HHS, this would have been $17,600 for a family of 3 meaning EB would have to earn $22,000 or have a cosponsor for an affidavit of support. 2) AB would have had to supply the USCIS with legal documentation showing all other persons responsible for Zahra (as dictated by custodial court order) were aware of her intent to pursue residency. 3) Both sponsor and applicant would have had to submit an overwhelming amount of supporting documents. 4) AB would have had to seek a consent order from the family court allowing the removal of Zahra from Oz if he did not have ED's consent and current CO did not specifically address relocation. Even with ED's consent it is highly recommended AB petition the court for a modification of custody.[Source: Australian Federal Police Family Law Kit and Family Law Act 1975, revised 2006]

Saying all that there are dozens of variables and each immigration case is unique. EB may have forged financial documents; AB could have doctored a court order - anything could have happened but I think AB and EB would have taken the path of least resistance in way of emigration thinking they'd sort it all out later. JMO

I'm always fascinated by your postings on this topic (I am close in situation to you, I am an american immigrant with a child, in the UK but a bit longer than you!) and I notice you believe that AB came in under the visa waiver program. I never questioned this although I wasnt in agreement as it seems to me it would be senseless for them to do it that way when applying to do it correctly (from oz) would be what I would think any reasonable person would do. It's a total pain in the youknow of course, we have toyed with the idea of returning to the US so I've looked into it of course and whew, I thought the UK was a little rough and particular (have you taken the life in the UK test yet? urk :|) but the US is like a monstrous machine.

anyway my point is, as time goes on and reading that cached link to begin this thread, I started to wonder if you hadnt called it from the get go because little that eb and ab do seems rational.

do you think they thought it would be easier to come over first? due to zahra and the sketchy custody thing? a "well, they're here now, might as well let em stay" kinda notion? or do you think possibly EB left the relationship and AB came after her to get her back without knowing how that would go and ended up staying? this whole situation is so weird to me, I personally would never go back home with my husband til it was all sorted and legal. it's easy enough to do, just annoying and expensive.

 

[BritsKate]

But someone did raise and interesting point. I have not seen any traffic offenses for AB in the criminal records thread so I'm wondering if he has a NC driver's licence. When he was charged with other offenses, what identification was used to file those charges? Shouldn't the immigration issue have been addressed then? Especially on the charges from May of this year. :waitasec:

Respectfully snipped. I posted a link back in general threads some time back about LE checking immigration status. IIRC, the Department of Homeland Security has only recently given authority to North Carolina law enforcement to check immigration status and it has only been adopted by some counties (with plans to make it statewide). It was 8 counties I believe but I can't recall which ones. I think it may be known as 287 (g). Local LE checking immigration is a state by state issue.

Something else about the licence...just for the sake of argument let's say AB's employer didn't check immigration status or require a work permit...wasn't AB also driving a company vehicle? I'd think his employer would insist on seeing a DL simply for insurance purposes. :waitasec:

You need a SS card to apply for an NC licence or documentation stating legal presence within the US. He could however drive in the US with his Australian licence for a limited time (as a new resident to NC it would have been 60 days I think according to the link below). Perhaps he fudged to his employer about when he moved? (Note: NC doesn't recognise an International DL) Or perhaps he had a fake one?

I don't know about the States but when I applied for insurance here, on my US licence, I had to pay 3x the 'norm' for my age group simply for driving on a foreign licence and I could drive for 1 year before I had to take a driving exam since US and UK do not have a reciprocal drivers licence agreement. FWIW

http://www.ncdot.org/dmv/driver_services/drivershandbook/download/NCDL_English.pdf

 

[BritsKate]

I'm always fascinated by your postings on this topic (I am close in situation to you, I am an american immigrant with a child, in the UK but a bit longer than you!) and I notice you believe that AB came in under the visa waiver program. I never questioned this although I wasnt in agreement as it seems to me it would be senseless for them to do it that way when applying to do it correctly (from oz) would be what I would think any reasonable person would do. It's a total pain in the youknow of course, we have toyed with the idea of returning to the US so I've looked into it of course and whew, I thought the UK was a little rough and particular (have you taken the life in the UK test yet? urk :|) but the US is like a monstrous machine.

anyway my point is, as time goes on and reading that cached link to begin this thread, I started to wonder if you hadnt called it from the get go because little that eb and ab do seems rational.

do you think they thought it would be easier to come over first? due to zahra and the sketchy custody thing? a "well, they're here now, might as well let em stay" kinda notion? or do you think possibly EB left the relationship and AB came after her to get her back without knowing how that would go and ended up staying? this whole situation is so weird to me, I personally would never go back home with my husband til it was all sorted and legal. it's easy enough to do, just annoying and expensive.

A fellow Yank! :blowkiss:

Notice my bolding please. I do think it would have been the reasonable method of immigration to apply for K3/K4 visas from Oz, yes, I just don't think we're dealing with reasonable folks. I think, IMO, we're dealing with people who feel a sense of entitlement and seemingly that laws do not apply to them.

I think their move to the States was an impulsive one. We have confirmation via EB's dad that AB, EB and Zahra all arrived in the US in December of 2008 so I don't think it was a case of EB coming over first.

I'm not certain the custodial orders for Zahra ever factored into what I believe was an impulsive move. I think EB probably sold AB on the 'land of milk and honey' and the legalities were not considered pre-relocation. The reason I believe he may have used the VWP is, prior to 2009, there was essentially no requirement other than a few questions by immigration control and a valid passport. At most I think he had a B2 but even then you're getting into a higher burden of proof on the applicant. When talking about a K3 and K4 you're looking at an extremely high burden of proof that, from all we've learned, I don't believe could be met.

Now...moving to the UK with children from the States depends on the state statutes but just to give you all a taste of what I had to submit to the court before I could even apply for the blessed visas:

Population statistics.
Crime statistics.
Testing scores for the proposed school.
Evidence of extra curricular activities available.
Ability to maintain contact with the NCP and paternal family.
Evidence and documentation of both living and financial arrangements.
Employment history for impending spouse.
Submit to an investigation by a guardian ad litem to determine the children's best interests.

Now, Oz law is not the same as US law but there are similarities in the presumption of the children's best interests and had AB petitioned the court for a consent order an investigation by the court would have ascertained whether the move was indeed in Zahra's best interest. The above may or may not have been required as evidence.

Sorry for the long post. All JMO based on my own experiences.

Oh! And I take the test next year (I've been over 2 years Nov 24th). Why do I need to know the percentage of immigrants in Scotland? :waitasec:

 

[Kamille]

Respectfully snipped. I posted a link back in general threads some time back about LE checking immigration status. IIRC, the Department of Homeland Security has only recently given authority to North Carolina law enforcement to check immigration status and it has only been adopted by some counties (with plans to make it statewide). It was 8 counties I believe but I can't recall which ones. I think it may be known as 287 (g). Local LE checking immigration is a state by state issue.

Something else about the licence...just for the sake of argument let's say AB's employer didn't check immigration status or require a work permit...wasn't AB also driving a company vehicle? I'd think his employer would insist on seeing a DL simply for insurance purposes. :waitasec:

You need a SS card to apply for an NC licence or documentation stating legal presence within the US. He could however drive in the US with his Australian licence for a limited time (as a new resident to NC it would have been 60 days I think according to the link below). Perhaps he fudged to his employer about when he moved? (Note: NC doesn't recognise an International DL) Or perhaps he had a fake one?

I don't know about the States but when I applied for insurance here, on my US licence, I had to pay 3x the 'norm' for my age group simply for driving on a foreign licence and I could drive for 1 year before I had to take a driving exam since US and UK do not have a reciprocal drivers licence agreement. FWIW

http://www.ncdot.org/dmv/driver_services/drivershandbook/download/NCDL_English.pdf

Well considering when agathawannabe was looking up the records on the vehicles and I believe she discovered that the tag on the Tahoe was expired, it doesn't appear that the employer was all that fussy about those "legal requirements" either. Not to mention that he likely hired AB on "under the table" so to speak, after having met him through another of his employees who used to live in the same neighbourhood as AB and EB.

I doubt that LE is going to bother MC about those issues though. I suppose tearing up his house was punishment enough.

What I was curious about was when the charges in May were filed, how did LE have AB's information...birthdate etc...without seeing a copy of his identification? And why didn't they do something about his immigration status then but I believe you've answered that in the first part of your post. Just another way that this tragedy may have been avoided if he had been checked out a little more carefully back in May instead of being allowed to just move again and not show up for his court date. If they had caught up with a possible immigration issue then, and checked on Zahra's status, perhaps she at least would have been returned to her family in Oz if she wasn't supposed to have been in the US.

MOO

 

[vjlaw]

Well I have to say that I appreciate all views on this immigration issue and everyone's input is valid and very important. After having read all of the posts, I am convinced that there is no way EB and AB would have been able to navigate this on their own. They made one attempt through a fraudulent website that we're aware of and I guess it's possible they spent more money to find an appropriate immigration specialist to help them but I somehow find it most unlikely.

EB can't even get keep her driver's licence or vehicle registrations up to date. How on earth would she be able to keep all this documentation in order?

But someone did raise and interesting point. I have not seen any traffic offenses for AB in the criminal records thread so I'm wondering if he has a NC driver's licence. When he was charged with other offenses, what identification was used to file those charges? Shouldn't the immigration issue have been addressed then? Especially on the charges from May of this year. :waitasec:

MOO

I really don't understand the wikiupload on AB's record, but there is a 5 in the blood alcohol greater than .16 with a prior points amount also. Sounds like a drunk driving but I am not sure. In my state we can go through the gov/courts website and find anything pending or disposed charges on a person. We can get all the docket entries on each case on that person. Does NC have anything like that?

 

[NancyA]

I'm always fascinated by your postings on this topic (I am close in situation to you, I am an american immigrant with a child, in the UK but a bit longer than you!) and I notice you believe that AB came in under the visa waiver program. I never questioned this although I wasnt in agreement as it seems to me it would be senseless for them to do it that way when applying to do it correctly (from oz) would be what I would think any reasonable person would do. It's a total pain in the youknow of course, we have toyed with the idea of returning to the US so I've looked into it of course and whew, I thought the UK was a little rough and particular (have you taken the life in the UK test yet? urk :|) but the US is like a monstrous machine.

anyway my point is, as time goes on and reading that cached link to begin this thread, I started to wonder if you hadnt called it from the get go because little that eb and ab do seems rational.

do you think they thought it would be easier to come over first? due to zahra and the sketchy custody thing? a "well, they're here now, might as well let em stay" kinda notion? or do you think possibly EB left the relationship and AB came after her to get her back without knowing how that would go and ended up staying? this whole situation is so weird to me, I personally would never go back home with my husband til it was all sorted and legal. it's easy enough to do, just annoying and expensive.

OT. LOL. I just showed my husband this and he cracked up especially at ‘monstrous machine’. We always knew this day would come, when we could look back and laugh about it…actually we’re not quite there yet, I’m applying for citizenship in the New Year, can you say just a glutton for punishment?

Seriously, we like to think we’re reasonable people but after 3 plus years of transatlantic back and forthing – he lived here and I lived there - when we initially looked into applying for me to come to the US on a fiancée visa ie the ‘correct’ way, ( I assure you the way we did it with me already here is also ‘correct’ and perfectly legal) we were appalled by just how long drawn out, convoluted and complicated doing it that way was going to be.

It’s no less convoluted or complicated doing it the way we did it – I had to be doubly sure I had EVERYTHING I would need documentation-wise to hand and ALL my personal and financial affairs in the UK in order and finalised before I came, just as you say “all sorted and legal” – but it was much more convenient for us in that we didn’t have to be separated for up to another year. I can see the Bakers, if they looked into it at all, thinking itway might be easier if AB and Zahra were already here, but they must have gotten a nasty wake up call come to find out just how involved and expensive the process is.

 

[milliac]

Nine years ago my husband and I also went through the long drawn out immigration process (via the K-1 visa). It required a lot of research, attention to dates and details and was very expensive. It took almost a year before he could come to the US. IMO, I can't see these two knowing how to navigate through the process, and I certainly can't see how EB had the ability to prove enough income on the Affidavit of Support. I am also curious why they married in Australia.

I totally relied on an immigration group forum on Google for information. I'll try to find the link. I did find this one, so maybe some of these people can answer questions you have.

[ame="http://www.immihelp.com/forum/forumdisplay.php?f=48"]Fiance(e) Visa (K1, K2, K3, K4) - Immihelp Forums[/ame]

OT...whoooo hooo my husband became a US Citizen two years ago, so thank God we don't have to do any more immigration paperwork. On the other hand, neither of us have no tolerance for those that don't pay the fees or go the legal route.

ETA: The google group was alt.visa.usa but it appears they no longer have this formum. However, I wonder if EB posted anything is any of these kind of groups like the other link I posted.

 

[Kamille]

I really don't understand the wikiupload on AB's record, but there is a 5 in the blood alcohol greater than .16 with a prior points amount also. Sounds like a drunk driving but I am not sure. In my state we can go through the gov/courts website and find anything pending or disposed charges on a person. We can get all the docket entries on each case on that person. Does NC have anything like that?

agathawannabe actually called regarding those domestic violence and blood alcohol fields on the records that she posted and she has advised not to rely on the information in those fields as they appear to not be on the actual records. She gets her information from a site other than the official NC records database.

Here is her post...

[ame="http://www.websleuths.com/forums/showpost.php?p=5751985&postcount=407"]Websleuths Crime Sleuthing Community - View Single Post - NC - Zahra Clare Baker, 10, Hickory, 9 Oct. 2010 #36[/ame]

 

[Kamille]

OT. LOL. I just showed my husband this and he cracked up especially at ‘monstrous machine’.

\

Respectfully snipped,

When I read that first sentence I thought he cracked up because that's what you were calling EB/AB. :crazy:

ETA: I think that EB believed that because she is a US citizen, she could just bring over her new family, sign a couple of forms, and all would be fine. She seems to have that kind of entitlement mentality. I'm sure it was a rude awakening.

 

[passionflower]

AB not a citizen, so no welfare.
How does he buy food, pay rent on new apartment (deposit/utilities)
get around town?
Who pays for this?
His mother?
His brother?
Are they still here in USA???