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Discussion Starter · #1 · (Edited)
309 and living arrangements

This forum is a god send and the devil all in one. I find myself second guessing the decisions my husband and I have made concerning my 309 application. My application went in last November offshore from the USA and I didn't find this forum until the first week in January 2018. Keep in mind that my husband and I had talked to and paid for the services (advice only) of an Australian Immigration Attorney and an Australian Immigration Agent before we lodged our application. The problem I'm having is from the posts I have been reading of late concerning living arrangements. Most of you seem to be living with your spouse or defacto partner despite which country you lodged your application, so evidence of a genuine relationship isn't hard to prove. My situation is different. My husband and I found ourselves both widowed in 2014 with children still left to raise and stable careers. Long story short, we met in 2016 and married in March 2017 knowing we would live apart thinking at the time that we would do this until our children were adults. We thought worse case scenario would be 5 years - that may sound crazy, but it's our crazy. Well, I took my 16 year-old out to Australia in July 2017 for the first time and she thought it would be nice to move there, so we got excited, took a couple of months to gather documents, asked for advice from the attorney and agent I mentioned earlier, and lodged our application which included my 20 year-old son and 16 year-old daughter. We decided to lodge off shore and living apart (vs. on shore and living together) for the following reasons.

1. I have a 20 year-old that is mildly intellectually disabled. Physically he is fine. In fact, when he had his health examination for the visa, I mentioned the intellectual disability and the physician did an additional test to test his cognitive function which he passed with flying colors.

2. I have a career that spans over 25 years. If we were denied while onshore, I would have difficulty coming back to the USA and finding similar employment with the salary I currently have.

3. We were also concerned about my 16 year-old's education. If denied and we were all in Australia, this could seriously disrupt my daughter's education considering she only has about 2 1/2 years left until she graduates from high school, not to mention the emotional turmoil that would cause.

The advice the attorney gave us was to lodge onshore, but we decided to go against that and lodge offshore for the reasons above. (The attorney seemed to think we had a good chance for a grant despite my son's disability). We were also advised by both the attorney and agent that US 309 applications were taking 6-9 months to process and the 820's were taking twice that, but I'm seeing from this forum that the wait is much longer for US 309's than we thought. Now I'm left wondering if we went about this all wrong. We have been visiting each other every 3 months since we met and stay as long as we can during those visits which is usually just over 2 weeks. Is this enough evidence to prove the authenticity of our relationship? We do have tons (everyday) of WhatsApp conversations and records of phone calls as well. Do we just take a chance and move to Australia anyway on a tourist visa and wait for an answer instead? If we would have realized that our wait for a grant was going to be around a year, we both agree that we would have applied for the onshore 820.
Any advice would be greatly appreciated.
 

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You seem to have been badly advised. It might pay you to consult one of the registered migration agents who pssts on this forum.
 

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I assume the Australian Immigration Agent was a Registered Migration Agent?

What was his thoughts on your son's mild disability?

My assumption is you did the application yourselves and if correct how did you address your sons condition?

In my opinion since you are married, the lack of living together can be addressed for various reasons. Education and employment can be valid reasons for living separately apart for a period but not on a permanent basis.

Might be best to get a RMA to review your application (not all do it).
 

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Discussion Starter · #4 ·
Yes, we used a RMA, but only for advice. We lodged our application ourselves. She generated HAP ID's so we could get our health checks done. She felt like if my son could pass a health check, then we shouldn't have any problems.

This is the quote from the immigration attorney concerning my son.
"It is our view that, if we apply for the partner visa and argue Brendan's dependence there may be reasonable prospects of succeeding, but subject to the MOC's findings being similar to the psychologist's report."

I did not mention that the US Social Security Administration (SSA) hired a psychologist to evaluate my son because at the time I was asking if we could reinstate social security death benefits (from his father's death) for my son if he was classified as disabled. The psychologist evaluated him as mildly intellectually disabled and that benefit was reinstated and will continue throughout his life even in Australia. I attached that report to my application along with the financial statements from SSA.

I think I either need to leave this alone and wait or spend the money and reapply onshore. Do you think there's any chance that I could change my 309 to an 820 if I pick up and move before they look at my application and send them a change of address? I'm guessing the answer is "no". At this point, I'm feeling like I'd give up my job and risk getting denied if that meant I could spend a couple of years living with my husband waiting for a decision.
 

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Discussion Starter · #5 ·
...and we probably should have used an immigration attorney or a RMA to help us fill out the application.
 

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I think I either need to leave this alone and wait or spend the money and reapply onshore. Do you think there's any chance that I could change my 309 to an 820 if I pick up and move before they look at my application and send them a change of address? I'm guessing the answer is "no". At this point, I'm feeling like I'd give up my job and risk getting denied if that meant I could spend a couple of years living with my husband waiting for a decision.
You cannot change the 309 to a 820, so you'd have to re-apply onshore and pay all the application fees again. Of course all the applicants would have to be able to enter Australia first on visas without a "no further stay" condition.
 

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Discussion Starter · #7 ·
You cannot change the 309 to a 820, so you'd have to re-apply onshore and pay all the application fees again. Of course all the applicants would have to be able to enter Australia first on visas without a "no further stay" condition.
I thought so, but thanks for confirming.
 
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