VWP then get married or get married now?

[johhny5 26]

I am a US born citizen and my girl friend has an valid J-1 Visa ( au pair, no 2 yr return requirement ). It is going to expire in like 2 more weeks but her agency has the return flight for mid August as the rules allow for her to stay 30 days past the Visa to get her affairs in order. She is from a country that has a Visa waiver program and she has been approved though I know there is no guarantee of anything at the border. She plans on returning early september to come with me to a friend's wedding as well as travel with me here in the US.

My orignal plan was to have her come back on the VWP and then ask her to get married in those 90 days. The other option I had considered was to get married in the next few days before she left and still had a valid J1 Visa.

So now I am conused on which course of action to take. I had asked on an immigration site for lawyers and all of them didnt say one thing except get a lawyer. I did a phone call with one of them and he said that option 1 was easier. But why? Also I heard that she shouldnt travel in August if I choose option 2 and get married at the court house. I would fill out both the I-30 and I-485 immediately after we got married.

Pros / Cons to both options? She is worried that she may not be able to come back in September if we go the VWP route. The lawyer I spoke to earlier said it may be harder with the J1 Visa and getting married now than getting married if she is here during VWP. I am confused with conflicting messages. Perhaps advice from those that may have experienced it will help me.

Thanks in advance!

-John

Edited July 5, 2016 by johhny5

[Pitaya 2,576]

~Moved from WST-based AOS to What Visa Do I Need Forum~

~Inquiry about family-visas~

[Transborderwife 4,666]

Option 1 is visa fraud

[EM_Vandaveer 2,369]

Marry now and file for AOS.

Here is the guide:

http://www.visajourney.com/content/i130guide2

Make sure to file the I-131. In about 90 days she'll receive her AP, she can travel then but not before.

Edited July 5, 2016 by EM_Vandaveer

[IcezMan_IcezLady 582]

Option 1 is illegal... I wouldn't trust any lawyer who has no regards for the law.

You either get married now and file AOS and get AP before she can leave the country.

Or you marry now then she lives and tries to come back for visit (she could be denied entry). If she is denied, then you file for CR-1 which takes 1 year.

[KayDeeCee 4,891]

Marry now, and she stays with you and files for AOS. She will file for the EAD and AP with the I-485, and those will allow her to work and travel and re-enter while waiting for her green card to be approved.

Using the VWP to enter the US with the intent to marry and STAY and file for AOS is fraudulent. She can enter with the VWP, get married and then leave when she is supposed to. Then you would file for the spousal visa. Just cannot plan to use the VWP with the intention of immigrating.

[johhny5 26]

i appreciate everyone'e feedback. It seems as though almost all of you are saying to get married now and file the I-130. But this means she should not leave in August if I am understanding you correctly as I dont think that is enough time to get the AP and will probably be denied entry? Correct? Or can she come back with the VWP?

Also I just want to understand how Option 1 would be considered fraud as she does not know that I had planned on asking her to marry me when she comes back. Not trying to be difficult, just trying to understand all of this stuff is all.

Thank again!

-John

Edited July 5, 2016 by johhny5

[JFH 12,189]

Also I just want to understand how Option 1 would be considered fraud as she does not know that I had planned on asking her to marry me when she comes back. Not trying to be difficult, just trying to understand all of this stuff is all.

Thank again!

-John

It's fraud because you are considering having her come on the VWP to stay for good. It is not fraudulent to surprise her with a proposal and it's not fraudulent to get married using the VWP. I also got married on a VWP trip. But the plan for both of you must be that she leaves at the end of the VWP trip as planned and you then file the necessary paperwork for her to immigrate (K-1 visa if you are still engaged when she returns home or CR-1 if she returns home legally married to you). It's tough being apart. I left the USA 72 hours after marrying my husband and we have never spent more than 3 weeks together. But rules are rules. Breaking them is not worth it.

[EM_Vandaveer 2,369]

i appreciate everyone'e feedback. It seems as though almost all of you are saying to get married now and file the I-130. But this means she should not leave in August if I am understanding you correctly as I dont think that is enough time to get the AP and will probably be denied entry? Correct? Or can she come back with the VWP?

Also I just want to understand how Option 1 would be considered fraud as she does not know that I had planned on asking her to marry me when she comes back. Not trying to be difficult, just trying to understand all of this stuff is all.

Thank again!

-John

If you marry and file for AOS she absolutely CANNOT leave without AP because the application would be considered abandoned. You would have to file for a spousal visa at that point.

[KayDeeCee 4,891]

i appreciate everyone'e feedback. It seems as though almost all of you are saying to get married now and file the I-130. But this means she should not leave in August if I am understanding you correctly as I dont think that is enough time to get the AP and will probably be denied entry? Correct? Or can she come back with the VWP?

Also I just want to understand how Option 1 would be considered fraud as she does not know that I had planned on asking her to marry me when she comes back. Not trying to be difficult, just trying to understand all of this stuff is all.

Thank again!

-John

You file the I-130, I-485, I-765, and I-131 all at the same time, if you marry and she stays. She could not leave unless she had the AP(I-131) or green card first. If she did, she would abandon the AOS, and you would need to file for her to get a spousal visa to return.

Using the VWP with the intent to stay and AOS is fraudulent. Technically she would not be using it that way, since she would not know she would be staying to marry you, but you know and are thinking about planning it that way. The law is that if she enters without the intent to stay and never lies to the CBP upon entry, THEN the situation and circumstances change and she wants to stay, you can proceed with the AOS process. How you go about it is up to the two of you at this point.

[slee0000 13]

I am a US born citizen and my girl friend has an valid J-1 Visa ( au pair, no 2 yr return requirement ). It is going to expire in like 2 more weeks but her agency has the return flight for mid August as the rules allow for her to stay 30 days past the Visa to get her affairs in order. She is from a country that has a Visa waiver program and she has been approved though I know there is no guarantee of anything at the border. She plans on returning early september to come with me to a friend's wedding as well as travel with me here in the US.

My orignal plan was to have her come back on the VWP and then ask her to get married in those 90 days. The other option I had considered was to get married in the next few days before she left and still had a valid J1 Visa.

So now I am conused on which course of action to take. I had asked on an immigration site for lawyers and all of them didnt say one thing except get a lawyer. I did a phone call with one of them and he said that option 1 was easier. But why? Also I heard that she shouldnt travel in August if I choose option 2 and get married at the court house. I would fill out both the I-30 and I-485 immediately after we got married.

Pros / Cons to both options? She is worried that she may not be able to come back in September if we go the VWP route. The lawyer I spoke to earlier said it may be harder with the J1 Visa and getting married now than getting married if she is here during VWP. I am confused with conflicting messages. Perhaps advice from those that may have experienced it will help me.

Thanks in advance!

-John

Hi John,

so as everyone else already stated, option 1 is fraud because she's coming into the country with the intent on staying forever -- basically coming to the US in bad faith

Get married now and file for I-130 and I-485 and whatever else you need, like I-765 so she can work while she is waiting. - pretty much the best option

As I have read in other posts, your girlfriend can stay in the US while you guys file for adjustment of status - visa overstay is forgiven.

[Cathi 5,610]

i appreciate everyone'e feedback. It seems as though almost all of you are saying to get married now and file the I-130. But this means she should not leave in August if I am understanding you correctly as I dont think that is enough time to get the AP and will probably be denied entry? Correct? Or can she come back with the VWP?

Also I just want to understand how Option 1 would be considered fraud as she does not know that I had planned on asking her to marry me when she comes back. Not trying to be difficult, just trying to understand all of this stuff is all.

Thank again!

-John

she may not know she would be entering on the VWP to stay but YOU know that is the plan- that she would be entering with the intent to marry, stay and adjust status which is fraud.

[Unidentified 2,930]

You can forget about marrying on VWP unless she goes back to her own country and you file for spousal visa. If you marry her on her J1 make sure you guys do it once she is done with her au pair contract as she will be thrown out of the program if she marries during her contract period. Her host family would probably not be happy.

[johhny5 26]

Ok totally get it and makes sense. So now here is a secondary question then but it is specific to the J-1 then. Since her J-1 date ends in a few weeks, but as I said her flight back is not set until mid August. She is still within the 30 days as per the guidelines. Do we have to be married and fill out the forms PRIOR to the date expiring or can it be during the 30 day window? I asked 2 immigration attorneys and they had no clue.

As per the state page:

How long before my J-1 program starts can I arrive in the United States? How long can I remain after my program ends?

You may not arrive more than 30 days before the program start date shown on your DS-2019. Upon completion of your exchange program, you have a grace period of 30 days to depart the United States.

https://j1visa.state.gov/participants/common-questions/

Edited July 6, 2016 by johhny5

[Transborderwife 4,666]

Ok totally get it and makes sense. So now here is a secondary question then but it is specific to the J-1 then. Since her J-1 date ends in a few weeks, but as I said her flight back is not set until mid August. She is still within the 30 days as per the guidelines. Do we have to be married and fill out the forms PRIOR to the date expiring or can it be during the 30 day window? I asked 2 immigration attorneys and they had no clue.

As per the state page:

How long before my J-1 program starts can I arrive in the United States? How long can I remain after my program ends?

You may not arrive more than 30 days before the program start date shown on your DS-2019. Upon completion of your exchange program, you have a grace period of 30 days to depart the United States.

https://j1visa.state.gov/participants/common-questions/

It's ideal, but her overstay would be forgiven upon accepted aos via spouse. Does she have a 2 year home residency?