Complicated situation: AOS from VWP

[glennw84 9]

Hi everyone. I have been reading up a lot on this topic, but my situation is so complicated I find it difficult to get a satisfying answer. I even contacted a few lawyers and even from them I got very different opinion.

My situation is as follows. I'm a Belgian citizen, but have lived in Iceland for 2 years. There I met my boyfriend, an American citizen who moved to Iceland because he got married to an Icelander, but ended up in divorce. While in Iceland we started talking about staying there, moving to another country (Belgium, US, other). We decided we would in the future move to New York. Because I am a physical therapist I started the procedure in January 2015 to get licensed in New York. I read that this could take up to 2 years so I wanted to be sure I got a license the moment we would move there.

In January 2016 I officially moved back to Belgium, but we started traveling for 5 months. First 3,5 months in Asia and then we would visit my boyfriend's family in the US for 7 weeks. In Asia I got proposed.

We didn't have any plans written in stone for after our trip, but we intended to go to Belgium for a couple months, start my K1 visa application and then return to the US to get married.

While we were visiting the states however we realized that the whole k1 process would take longer than the 3-4 months we thought it would take (we didn't research it very well). When my fiancé then heard that his best friend who lives in south Florida needed a roommate we started discussing the possibility of trying to stay here and get married now instead of first applying for a k1 visa. I agreed on the condition that I would be able to work and get my PT license. So I registered to sit for the national physical therapy exam to get my license, which I passed.

My VWP expires in 3 days and we still have to register for our marriage which will take a couple days so when we would get married it will be after expiration of my VWP.

This is the situation up to now. The problem is that in order to marry on VWP you have to prove that there was no intention of getting married and immigrating when entering the country. Even though this wasn't our intention I feel it will be hard to prove for us. The only thing we have is that we both had a planned return flight to Belgium and that I still have my legal address (at my parents) and a bank account in Belgium. However there is a lot of evidence they could use against us to make the point that they suspect preconceived intent to immigrate (proposal date, the licensure for PT application, no job to return to) and the red flag that my fiancé started an immigration procedure with his ex, but his ex never got a visa because they moved to Iceland before it was finalized.

So my questions are: how big is the risk in my situation on getting married on VWP? What if it would be considered preconceived intent? Is it a red flag if we get married after my 90 days are up?

If I would go for the K1 visa, can I travel to the us to visit my fiancé while it is pending? And what if I apply for it if I overstay my current VWP with about 2 weeks? Will that cause the K1 visa to take longer?

Thank you all for taking the time to read my story and I would really appreciate your input and comments

[aaron2020 11,651]

Hi,

Your situation is not complicated. It's quite easy.

Since you are currently in the US, there is zero risk of getting married on the VWP.

The preconceived intent to immigrate is not an issue. Under Matter of Batista and Matter of Cavazos, USCIS can not deny your AOS for having immigrant intent.

There i no red flag to get marry in 90 days.

If you want to go the K1 route, you can visit under the VWP if you meet all the requirements. Overstaying would end your ability to travel in the future on the VWP. It will not make the K-1 longer.

You do realize that you will not be able to legally work for 90 days while you wait for your EAD. Furthemore, if you leave the US without AP, you will be deemed to have abandoned your AOS.

Best of luck.

[Penguin_ie 5,985]

***** Moving from AOS from Family Visa to AOS from Tourist visa forum *****

I agree your chances of approval are very good.

[glennw84 9]

So even if the marriage would take place a few days after my VWP expires and the I130/I485 are filed later it wouldn't impose bigger problems? The answers I get from lawyers are always freaking me out. Everyone of them says it has to be filed within the 90 days. I don't know if they say that to get you worried so you'd hire them or if it is actually true.

[RodDetroit 118]

you wont have to prove why you got married under the VWP, it would be huge problem if you entered the country illegally. Plus having a European passport helps.

[newacct 688]

So even if the marriage would take place a few days after my VWP expires and the I130/I485 are filed later it wouldn't impose bigger problems? The answers I get from lawyers are always freaking me out. Everyone of them says it has to be filed within the 90 days. I don't know if they say that to get you worried so you'd hire them or if it is actually true.

Nope. It makes no difference for the AOS whether you file before or after the 90 days.

[Penguin_ie 5,985]

You are technically overstaying, but overstay is forgiven upon marriage to a US citizen and Adjusting of Status.

So unless you commit a deportable crime during your overstay, you are fine.

[EM_Vandaveer 2,369]

I don't know why the lawyers are freaking you out (other than they want you to hire them). Getting married within or after your 90 days are up makes no difference. Once you file for AOS and receive your NOA1 you begin a new period of authorized stay until your application is adjudicated by USCIS.

Don't forget to file for EAD (with I-765) & AP (with I-131) as well, so you'll be able to work once you get it (in about 90 days after filing).

Here is the guide to follow:

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

Edited July 30, 2016 by EM_Vandaveer

[Joe47 0]

I have a similar..ish situation. I got married during the 90 days VWP, on August 10th last year, our interview appointment is tomorrow. You should not have any problems. Even if you don't file within the 90 days. I agree with EM_Vandaveer the lawyers want you to hire them, that's why they are scaring you.

Edited August 8, 2016 by Joe47