Q: My R1 visa is still in processing and I have to leave to my country. Do my R2 dependents need to leave as well with me?
URGENT HELP PLEASE!
I applied for R1 visa on June 2018. At the same time I applied for a R2 visa for my husband and my daughter. It is December 2018, and the visa is still in processing (they say it is a 6 months processing?).
I have an emergency and I need to be back in my home country by January 1st, 2019- which is in less than 3 days.
Can I leave the US and wait for the processing in my home country? Are my R2 dependents (my husband and daughter) need to leave the country too? Will the petition be cancelled once I leave the US while it is processing?
As long as I am the only one required to leave the country it is good. But my husband has a business here and it'd be almost impossible for him to leave the US because of his business.
Does anyone know if R2 applicants need to leave the country with the R1 applicant?
I am very stressed, I don't know what to do.
If anyone could inform me as soon as possible. I'd appreciate your answers!
Thank you very much
A:
Answers:
You can leave, but the employer/petitioner must contact USCIS and request "consular notification" of the approval, versus "change of status."
You will have to wait out the approval, before you may apply for the R-1 visa to return. Doubtful you will be allowed back in the interim on your B1/B2 visitor visa, since the R-1 visa petition (not "visa") is pending.
Your dependents may need, and probably will need, to leave the USA with you. Once you leave, it will eliminate their basis for asking for a change of status, on the I-539 they filed. It will take them back to their B-2 (visitor) status. They will be "lawfully present" up to now, but if they remain the unlawful presence (ULP) will contine to roll. If it reaches 183 days (just under 6 months), and of course any date beyond that, it will prevent them from getting R-2 VISAS back in your home country. INA section 212(a)(9)(B) says they will be barred for 3 or 10 years, and will need a waiver, and even if you get the waiver, for the R-2 visa, this will create a huge problem when it comes time down the road to apply for permanent residence. The 3- or 10-year bar will only be deferred by the R-2 visa waiver, and it will become expensive and difficult to overcome at the PR stage.
So, short answer: If you really must leave, take your dependents with you, NOW.
Something else you mentioned is troublesome. You said your husband "has a business." I hope he has a visa or work-permit (EAD) to allow it. If not he has violated his status and this will create problems, whatever you do.
Absolutely, the best thing for you to do, so you know where things are, is to schedule an appointment with a lawyer and discuss everything with him or her. I want to assure you that a lawyer is sworn to handle all information in confidence.
Go to www.aila.org to find a member lawyer in your area. Or call the Florida bar on its toll-free number and ask for the lawyer referral service for a low-cost consultation.
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