Re-Entry into US without filing for Advance Parole

[Lariza 0]

I'm in the process of petitioning for a K-1 visa for my fiancee who lives in Australia and so far we're up to scheduling her interview with the US Embassy here. It's come to my attention that after we've been granted the K-1 visa and traveled to the U.S. where we will be having our wedding, she isn't able to leave until she's granted Advance Parole. Besides the fact that the AOS and AP costs a lot of money which we won't have, especially after paying for our wedding, the estimated 3 months it takes for the AP to be granted is a long time to wait for her. I'm currently living in Australia with her on my own unrelated Work and Holiday visa which is good for a year, so we'd spend the time together in her home country, get married at the halfway mark in the U.S., return to Australia to live out my visa a week or so after, then together we'd return to the U.S. to live permanently and begin her AOS. 

 

So from what I've read online, if we were to leave before the AOS and AP are granted it will be seen as abandoning the process. Does anyone know if there's a way we could delay the process until we come back to the U.S. in 5 months? Would she be allowed to re-enter at that time on an ESTA or would she need something different? 

 

I've tried calling all the US Embassies here and even USCIS but I can't seem to get live assistance or any answers that don't direct me back to the website, so hopefully someone out there can give me a little help. Thanks!

[audacieux89 256]

9 minutes ago, Lariza said:

I'm in the process of petitioning for a K-1 visa for my fiancee who lives in Australia and so far we're up to scheduling her interview with the US Embassy here. It's come to my attention that after we've been granted the K-1 visa and traveled to the U.S. where we will be having our wedding, she isn't able to leave until she's granted Advance Parole. Besides the fact that the AOS and AP costs a lot of money which we won't have, especially after paying for our wedding, the estimated 3 months it takes for the AP to be granted is a long time to wait for her. I'm currently living in Australia with her on my own unrelated Work and Holiday visa which is good for a year, so we'd spend the time together in her home country, get married at the halfway mark in the U.S., return to Australia to live out my visa a week or so after, then together we'd return to the U.S. to live permanently and begin her AOS. 

 

So from what I've read online, if we were to leave before the AOS and AP are granted it will be seen as abandoning the process. Does anyone know if there's a way we could delay the process until we come back to the U.S. in 5 months? Would she be allowed to re-enter at that time on an ESTA or would she need something different? 

 

I've tried calling all the US Embassies here and even USCIS but I can't seem to get live assistance or any answers that don't direct me back to the website, so hopefully someone out there can give me a little help. Thanks!

Hi there, to my knowledge, once you enter the US with the k1 visa in the passport it can only be used once. Leaving the US would mean abandoning the k1 visa so if she wants to return (after marriage) she would need a CR1 (spousal) visa instead. I am not sure if she can still enter the US using ESTA or if the abandonment of the K1 will have an effect on her status.

[Roel 7,191]

She wont be allowed on esta. No matter what you do, if she leaves US without AP or green card she will not be able to immigrate back unless you apply for a spouse visa. 

 

You kind of overcomplicated this. Simply do not leave Australia until you are both ready to permanent live in the USA. 

[geowrian 22,335]

Once the K-1 visa is in her passport, she must use it at her next entry. At that point, the K-1 visa is no longer valid and the I-94 stamp in her passport will be used for her 90 days of legal status in the US.

 

If you file for AOS and then leave the US for any reason without AP, the AOS application will be automatically deemed abandoned and denied.

 

Even if you don't file for AOS, she cannot re-enter on the K-1 visa again. Somebody technically can enter on VWP afterwards, however 1) it's extremely unlikely to work since she has documented immigrant intent, and 2) it's visa fraud to enter the US via VWP with the intent to stay. Do not do this. She will need a CR-1/IR-1 visa to reenter the US...ETA 12-14 months.

 

You can request emergency AP, but you need a compelling reason.

 

Edit: I agree with the above - just don't get the K-1 visa until you're ready to live in the US.

Edited June 7, 2017 by geowrian

[Scandi 3,970]

You'd think paying for her AOS would be more appropriate than spending the money on a wedding ceremony.. but to each his own.. I take it this process isn't very important to the two of you at this point since your priorities are off and you haven't planned things out very well. My suggestion would be to cancel the K-1, get married and file for CR-1 whenever you're ready. That way she would at least have the possibility to work and travel once she enters the US.

[Lariza 0]

We've already started the K-1 visa process, we're at the stage where she has to interview with the US Embassy here but we haven't paid the fee for scheduling the meeting. How long can we hold off in continuing the process before it's abandoned (if that's possible)? 

 

What is the CR-1 process like? Can K-1 be transferred to a CR-1?

[bunkx 25]

If you're going to the US for the sole purpose of the wedding and not adjusting status immediately, you could have easily done this with an ESTA. If you haven't begun the K-1 process yet, go attend your wedding on an ESTA (as long as you leave after your wedding, this is legal). After your wedding, go back to Australia and apply for a CR-1 visa as soon as you can. The process will take time, so you should be ready to move to the US permanently by that time. This is advantageous to a K-1, because with a CR-1 you are a legal permanent resident at the point of entry, which means you can work.

 

Be very careful with K-1. A lot of people have trouble saving up for the AOS costs. If you miss the 90 day (or 180 day if you push it) deadline, and you fail to file for AOS or break up after that, your Australian spouse will incur a long ban from entering the United States. Don't gamble with this.

 

Not to mention, I believe CR-1 is cheaper than AOS.

Edited June 7, 2017 by bunkx

[geowrian 22,335]

Just now, Lariza said:

We've already started the K-1 visa process, we're at the stage where she has to interview with the US Embassy here but we haven't paid the fee for scheduling the meeting. How long can we hold off in continuing the process before it's abandoned (if that's possible)? 

 

What is the CR-1 process like? Can K-1 be transferred to a CR-1?

I believe it's usually up to 1 year. The I-129F has an expiration date (4 months after NOA2), but you can contact the embassy to extend this for another 4 months at a time. They may do it automatically, but in your case I would suggest requesting it if you go that route.

 

No, there's no transfer. You need to marry & start by filing an I-130. ETA 12-14 months. But it grants a green card immediately at entry (no AOS required).

[audacieux89 256]

3 minutes ago, Lariza said:

We've already started the K-1 visa process, we're at the stage where she has to interview with the US Embassy here but we haven't paid the fee for scheduling the meeting. How long can we hold off in continuing the process before it's abandoned (if that's possible)? 

 

What is the CR-1 process like? Can K-1 be transferred to a CR-1?

The K1 visa has an expiry date. It is either 6 months after the medical exam or 6 months after the approval (whichever came first). She has to enter the US before the visa expires.

 

CR-1 is a spousal visa. You can only file for this once she is married to you. And no, I don't think the K1 (non-immigrant) can be converted to CR1 (immigrant) because they are totally different.

 

Edit: If you haven't had the interview yet, you can delay the interview until the validity of the Fiance petition (it's on the NOA2 form). But again, the validity of the visa is 6 months from medical or approval from interview.

Edited June 7, 2017 by audacieux89

[Roel 7,191]

2 minutes ago, Lariza said:

We've already started the K-1 visa process, we're at the stage where she has to interview with the US Embassy here but we haven't paid the fee for scheduling the meeting. How long can we hold off in continuing the process before it's abandoned (if that's possible)? 

 

What is the CR-1 process like? Can K-1 be transferred to a CR-1?

I don't know about the interview but you have 6 months to leave to US from the date of her medical. No k1 can't be transferred to cr1. 

[geowrian 22,335]

1 minute ago, bunkx said:

Be very careful with K-1. A lot of people have trouble saving up for the AOS costs. If you miss the 90 day (or 180 day if you push it) deadline, and you fail to file for AOS or break up after that, your Australian spouse will incur a long ban from entering the United States. Don't gamble with this.

It's 90 days of legal status. After that, you accrue unlawful presence. Leaving the US with 180+ days to 1 year of unlawful presence results in a 3 year ban. Over 1 year is a 10 year ban.

 

1 minute ago, bunkx said:

Not to mention, I believe CR-1 is cheaper than AOS.

That it is (albeit I'm not sure if that's still the case given the ~$535+ they already sunk into the K-1 process).

[bunkx 25]

15 minutes ago, Lariza said:

We've already started the K-1 visa process, we're at the stage where she has to interview with the US Embassy here but we haven't paid the fee for scheduling the meeting. How long can we hold off in continuing the process before it's abandoned (if that's possible)? 

 

What is the CR-1 process like? Can K-1 be transferred to a CR-1?

 

If you've already begun the process then you must file for AOS before you leave if you want to use K-1 the way it's intended. If you left the country before applying, you'd have to apply for a CR-1 in Australia to go back the US (I'm not sure how that would work though). The AP only takes 3 months, however I would recommend against extended leaves on AP. "A week or so" should be fine, but not months. Applying for AOS means you intend to make the US your permanent home, if it's determined that you do not intend to live in the US permanently, your application will be denied. In fact, even after your get your green card, if you indicate that you don't intend to live in the US, your permanent resident status can be considered abandoned. 

 

Any travel on AP should be reconsidered. When you enter on an AP, you're not being admitted into the country, you're being paroled. That means your status is entirely dependent on the decision on your AOS.

 

(Also, if you think 3 months is long when it comes to USCIS... You're in for a treat. EAD and AP's are the fastest I've seen them approve anything)

Edited June 7, 2017 by bunkx

[Lariza 0]

 

7 minutes ago, bunkx said:

If you're going to the US for the sole purpose of the wedding and not adjusting status immediately, you could have easily done this with an ESTA. If you haven't begun the K-1 process yet, go attend your wedding on an ESTA (as long as you leave after your wedding, this is legal). After your wedding, go back to Australia and apply for a CR-1 visa as soon as you can. The process will take time, so you should be ready to move to the US permanently by that time. This is advantageous to a K-1, because with a CR-1 you are a legal permanent resident at the point of entry, which means you can work.

 

Be very careful with K-1. A lot of people have trouble saving up for the AOS costs. If you miss the 90 day (or 180 day if you push it) deadline, and you fail to file for AOS or break up after that, your Australian spouse will incur a long ban from entering the United States. Don't gamble with this.

 

Not to mention, I believe CR-1 is cheaper than AOS.

I've read a little about marrying on an ESTA, but I wasn't sure how legal it was. Could we still do this even though we've already begun the K-1 or would we have to call them to cancel it? I don't know if it would spark any suspicion by doing so or if it matters. We have already paid a the initial I-129 fee which I'll be disappointed in losing but if there is an easier way to go about doing this, I'll take the hit. Do you happen to know an estimate cost of going through with the CR-1? I'm sure some fees will range depending on where you live. And if I'm understanding correctly, with the CR-1 we wouldn't have to file the AOS? 

[bunkx 25]

15 minutes ago, Lariza said:

 

I've read a little about marrying on an ESTA, but I wasn't sure how legal it was. Could we still do this even though we've already begun the K-1 or would we have to call them to cancel it? I don't know if it would spark any suspicion by doing so or if it matters. We have already paid a the initial I-129 fee which I'll be disappointed in losing but if there is an easier way to go about doing this, I'll take the hit. Do you happen to know an estimate cost of going through with the CR-1? I'm sure some fees will range depending on where you live. And if I'm understanding correctly, with the CR-1 we wouldn't have to file the AOS? 

 

Correct. CR-1 is an immigrant visa unlike the K-1. You legally become a permanent resident as soon as you enter the country, and your green card will be mailed to you soon after that. For the cost, see https://rapidvisa.com/spousal-visa-cost/

 

You can always try ESTA, however you'll be risking denied entry. Go ahead and apply for it - it's cheap and you'll see if they'll approve it. Doesn't guarantee admission though. You'll have to be truthful at the border (always a good idea) and tell them you're only here for the wedding ceremony and that you intend to return to Australia after the wedding. You must be able to prove your intention to return. If you can convince the CBP officer, this is not in violation of the law.

 

Any particular reason why you don't want to get married in Australia? If CR-1 takes longer than expected, you could apply for a temporary partner visa 820 in Australia through your future spouse.

 

Keep in mind that embassies and consulates in Australia allow for Direct Consular Filing (DCF), if you applied for a CR-1, you would file your petition (I-130) directly with the embassy and not USCIS in the US. This should speed things up a little. The US citizen petitioner does not need to be a resident of Australia for this, apparently. 

Edited June 7, 2017 by bunkx

[Lariza 0]

1 minute ago, bunkx said:

 

Correct. CR-1 is an immigrant visa unlike the K-1. You legally become a permanent resident as soon as you enter the country, and your green card will be mailed to you soon after that. For the cost, see https://rapidvisa.com/spousal-visa-cost/

 

You can always try ESTA, however you'll be risking denied entry. Go ahead and apply for it - it's cheap and you'll see if they'll approve it. Doesn't guarantee admission though. You'll have to be truthful at the border (always a good idea) and tell them you're only here for the wedding ceremony and that you intend to return to Australia after the wedding. You must be able to prove your intention to return. If you can convince the CBP officer, this is not in violation of the law.

 

Any particular reason why you don't want to get married in Australia? If CR-1 takes longer than expected, you could apply for a temporary partner visa 820 in Australia through your future spouse.

In the past, she has traveled to the US on an ESTA (4 times) and it would still be valid for the wedding. What would be good proof for intention to return to Australia? Do return plane tickets not work or it would have to be something like our honeymoon being here or work-related? Would talking to the officer be something she'd have to do alone or could I be there? 

 

As lovely as Australia is, marriage equality isn't legal here yet. If it does take longer than expected, I could look into going about extending my Work and Holiday visa that I'm currently on. If not, we might just have to go back to being long distance for just a little bit longer.