Visiting fiancee under VWP. Can we marry? Which visa would we pursue?

[Mister Adequate 0]

Hi folks, my fiancee and I have been browsing this site for awhile for help, but we're currently looking at a possibility we hadn't previously considered. I'm from the UK, she lives in Montana, and I'm here visiting her under the VWP; I arrived in the US on September 20th through SLC. My original return flight was October 21st, but we changed if after I got here so I am now due to leave on December 14th. (We've extended my stay before when I visited, but always of course remaining under the time allowed by the VWP.) My VWP leaving date is 19th Dec.

We have been engaged since 2013, and are planning to submit a K-1 fiancee visa application after I fly out, but before the prices go up on December 23rd. We've already got the package pretty much ready to go, in fact, and my current visit was largely to meet the requirement to have met in the two years prior to filing, as the last time we met was in 2014. But is me returning and waiting necessary? I've seen other people say they've married and remained despite being here on the VWP, and that the main consideration in that regard is whether I came here with intention to marry. (I didn't.) We bounced the idea around a couple of weeks ago but figured we'd need an immigration lawyer to ensure it was done properly, but were we overly pessimistic?

So basically I'm asking for advice on a couple of points:

With the understanding that there's always some risk of being suspected of having entered under false pretenses, is marrying and me staying viable?

Would the procedure actually be much the same, i.e. filing for a K-1, marrying upon acceptance, filing for AOS, and so on? Or would we use a different visa? Or would it be a different method entirely?

Related to the above, is the cost the same either way? Would we end up paying more if I stayed? (Other factors like airfare aside, of course).

We would want to file ASAP of course, but is there any leeway? Is it okay if I'm here for a few days between my required departure date and them getting the package, or us receiving NOA1?

Thanks very much for your help and advice everyone! It's probably not going to prove to be achievable, but it'd be neat if I could stay so we didn't have to be apart for another span of time.

[EM_Vandaveer 2,368]

You can marry and file for AOS.

Follow the guide:

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

Don't worry about intent. Unless you lied to CBP, which I'm assuming you didn't do, it's not an issue.

Overstay will be forgiven, but you should file ASAP.

Edited December 8, 2016 by EM_Vandaveer

[Hypnos 6,576]

Just bear in mind that you won't be able to leave without voiding your AoS application for at least 90 days (the rough time period it will take to obtain Advance Parole).

[Ontarkie 13,915]

~~Moved to AOS from Work, Student, & Tourist Visas, from K1 P&P - As the OP is looking at this option as it is available to them.~~

[Boiler 43,429]

You can follow the guides here, reasonably straightforward.

[Mister Adequate 0]

Okay, thanks for the input everyone, every bit of info and opinion helps us make a better decision.

And sorry it was in the wrong forum!

[yuna628 9,528]

Consider the viability of the options first: Is everything settled back home? Are you employed? Do you have any responsibilities you're prepared to put off for a while?

If so, the VWP route you are thinking about may not be for you, as you cannot return home until paperwork enabling you to travel without issue comes through. That can take some time.

Your other options is to do the K1 as you had planned. You can still visit each other so long as you don't overstay your VWP. Again after the K1 is complete and you marry, you'll need to wait to work and travel until the next paperwork goes through and is approved.

Or you marry now, and return home without spoiling your VWP privileges by an overstay. File for a spousal visa. It takes a longer time, but once approved you will have all the paperwork you need to work and travel.

Anyway, any of these suggestions can be done without the need for a lawyer.

[Boiler 43,429]

No need to overstay.

[Eric-Pris 1,602]

Or you marry now, and return home without spoiling your VWP privileges by an overstay. File for a spousal visa. It takes a longer time, but once approved you will have all the paperwork you need to work and travel.

This is the safe choice. You can marry and try to AoS now, but if you come across a CO that has some kind of grudge against adjusting from tourist visa/VWP, then you may regret doing that.

[f f 725]

you can always use the vwp while your k1 is pending. looks good to cbp that you left within the vwp time frame and filed the k1 soon after or before if you can get all the documents in order.

could always file now to get the lower rate then when you get an rfe send in the rest of the stuff.

good luck

[Boiler 43,429]

This is the safe choice. You can marry and try to AoS now, but if you come across a CO that has some kind of grudge against adjusting from tourist visa/VWP, then you may regret doing that.

I presume you have seen someone having an issue, I have not. Link?

[EM_Vandaveer 2,368]

This is the safe choice. You can marry and try to AoS now, but if you come across a CO that has some kind of grudge against adjusting from tourist visa/VWP, then you may regret doing that.

Is there a reason for you saying this? This is a total non-issue.

[Pennycat 880]

Seriously look into what is required to AOS before you make a decision. If you think you may have any reason to need or want to leave the US anytime in the next 6 months (building in a bit of a buffer, but justifiably so), this is likely not the best path for you. It's a lot more than one simple paper. You'll need a police report from every country you've lived in for 6 months or more, and your birth certificate, and I'm assuming you haven't traveled with those. Same for your vaccination records. You'll need them and also need a medical exam performed.. Is your fiancee able to be your financial sponsor? If not, do you have a co-sponsor? Those forms require documentation that can take a week or more to get together. So, you'd need to arrange all of this from the US.

Then, even if you get married tomorrow and get all of this documentation together in a week (which I think could be possible but not very likely), you're still looking at several months before you'll be able to leave and re-enter the US. They "owe" you a response to your work/travel permit within 90 days of the official received date. But for one, that response could be "no" (unlikely, but still possible). Two, if you've filled something out incorrectly or forgotten to submit a required piece of evidence (like vaccinations, police reports etc), you'll get an RFE (request for evidence) which, depending on the nature of the RFE either "pauses" your 90 days, or totally resets it. And three: 90 days is a lie. They'll get to you whenever they darn well please. Ours took 104 (so, two weeks longer) from their official "received date". My friends just applied for AOS and there was a three week lag between actually sending it, and their official "received date", so their 90 day clock didn't start ticking until almost a month into the process. So if *they* don't get a reply until day 104, their total time would be 4 months, one week. Sure, there are people who have gotten work/travel permits in 2 months or less. Good on them. But that's not a guarantee and not the way things seem to be going now. So add in however long it would take to get married and file (a week to get this kind of paperwork from abroad would be a miracle and either way you'd need to wait a week or so for the marriage certificate to be certified) and you could start to approach 6 months.

If you're able to just walk out of your life like that, then staying and adjusting makes sense .If not, and depending on your circumstances, (are you able to travel back and forth easily or not), I could see a case for either K1 or CR1. K1 you can submit the initial paperwork basically tomorrow. That's all stuff from the US citizen and is very simple and straightforward (the harder/ more involved stuff comes before the interview). Not sure about CR1 but at a minimum you couldn't get the ball rolling tomorrow as you'd need to get married and wait for the marriage certificate to be ready. So there's that.

Edited December 8, 2016 by CatherineA

[Boiler 43,429]

You forgot to mention Emergency AP.

[Pennycat 880]

You forgot to mention Emergency AP.

True, I did forget-- my mind wasn't on though. I'm thinking more pure logistics of thinking you're going home after Christmas and then just....not which even for someone living with family, no car, no job etc is quite the undertaking.

But yes, OP if you do stay and AOS, you can get permission to travel before your work/travel permit for an emergency. You have to have already sent in your petition, and I believe already have gotten your official "received date".