K1 vs. VWP?

[Kim and Nath 0]

This forum is awesome. I posted this question in the K3 forum, but I thought I might post it here too.

While waiting for feedback, I called a lawyer who gives free consultations. He said once my fiancé is over here on the VWP, we can marry and then we can apply for a Adjustment of Status. The problem is, and I think this is where the scare tactic comes in, is that he said the visa waiver program is a luxury, and my fiancé can be turned away at any time if suspected that he's coming over so often due to a relationship.

Here's how often he's come over. Again, he's a British citizen - I'm not sure if that impacts anything.

He has an aunt, uncle, and 2 cousins (we met through one of the cousins)

2005 - stayed for 3 months.

2006 - arrived briefly I think (we hadn't met yet).

2007 August - arrived for 3 weeks as a groomsmen in a wedding - was held for 1 hour by customs interogating him as to why he was coming over.

we met during that trip.

2008 May - arrived for 2 weeks.

We plan to have him come over in mid-December 2008 and marry early January. The lawyer said that at any time the US can reject his visa waiver. I'm wondering if he holds to the fact that he has family and it's the holidays, it shouldn't be a problem?

Thanks for your help again!

[rebeccajo 14]

Are you asking us if your fiance can visit in the US or if the advice you received from counsel is accurate?

Anyone can be turned back from Port of Entry on any visit. It's strictly up to the officer inspecting the alien. Yes the number of recent visits and evidence the alien plans to return to their country play into the decision.

If your fiance has intent to immigrate to the US at Port of Entry, and lies about this fact to a CBP official, they can be charged with misrepresentation as well as turned back home. Any future use of the VWP is lost at that point, and the possibility of issuance of future visas is highly unlikely also.

You should also be aware that possibly by the end of 2008, VWP entrants will be required to have an ESTA application on file with the DHS before traveling.

[Nich-Nick 3,353]

We plan to have him come over in mid-December 2008 and marry early January. The lawyer said that at any time the US can reject his visa waiver.

I believe the official US stand on that is it's visa fraud. At least that's what I was told that by an official at the USCIS when I asked that question. The reason is the VWP is for tourist purposes only. They fill in the form that says they are here for that reason. So if the intent is to be married, then they basically lied on the VWP form which I suppose could come back to haunt you. I think there are many people who do it the way the lawyer said and get through it fine, even if it borders on the risky side. It's your choice about how you want to go forward and the chances you want to take.

Depending on where where you live in the US, thus whether you file in Vermont (currently faster) or California, he could have the K1 anyway by your wedding timeframe if you filed now.

About visits from the UK to the US. My fiance' has visited on VWP about 29 times since 2000 with no problem. His visits have been short 1-2 week stays. He always says I'm visiting friends. He doesn't go into girlfriend, fiance' talk, etc. Sometimes they have said, "you come here alot" and he says, "yeah, I like it here. I always have fun" or some small talk like that. They don't have to admit anybody, but I just wanted to give an example of many visits with no problem. I think part of the key is to look like a happy, casual tourist and not like the cat who ate the canary when he comes to visit you.

You should look at the top of the page where the blue tabs are and read the Guides, look at the flowchart for K1, and read the FAQ and get a good picture of how the K1 process goes if you're not sure. It might help you figure out what to do or help you understand things better if/when you select a lawyer.

[rebeccajo 14]

The problem isn't coming here to marry.

That's perfectly legal and allowed.

The problem is intent to immigrate. That's were fraud comes in and misrepresentation at the Port of Entry.

[Kim and Nath 0]

Are you asking us if your fiance can visit in the US or if the advice you received from counsel is accurate?

Anyone can be turned back from Port of Entry on any visit. It's strictly up to the officer inspecting the alien. Yes the number of recent visits and evidence the alien plans to return to their country play into the decision.

If your fiance has intent to immigrate to the US at Port of Entry, and lies about this fact to a CBP official, they can be charged with misrepresentation as well as turned back home. Any future use of the VWP is lost at that point, and the possibility of issuance of future visas is highly unlikely also.

You should also be aware that possibly by the end of 2008, VWP entrants will be required to have an ESTA application on file with the DHS before traveling.

Thanks for your reply. We're definitely doing things the right way, even if it takes a long time. We're now planning on a May wedding. It sucks, but family is helping out for me to visit him this winter to cope with being apart.

Thanks again!

[Kim and Nath 0]

We plan to have him come over in mid-December 2008 and marry early January. The lawyer said that at any time the US can reject his visa waiver.

I believe the official US stand on that is it's visa fraud. At least that's what I was told that by an official at the USCIS when I asked that question. The reason is the VWP is for tourist purposes only. They fill in the form that says they are here for that reason. So if the intent is to be married, then they basically lied on the VWP form which I suppose could come back to haunt you. I think there are many people who do it the way the lawyer said and get through it fine, even if it borders on the risky side. It's your choice about how you want to go forward and the chances you want to take.

Depending on where where you live in the US, thus whether you file in Vermont (currently faster) or California, he could have the K1 anyway by your wedding timeframe if you filed now.

About visits from the UK to the US. My fiance' has visited on VWP about 29 times since 2000 with no problem. His visits have been short 1-2 week stays. He always says I'm visiting friends. He doesn't go into girlfriend, fiance' talk, etc. Sometimes they have said, "you come here alot" and he says, "yeah, I like it here. I always have fun" or some small talk like that. They don't have to admit anybody, but I just wanted to give an example of many visits with no problem. I think part of the key is to look like a happy, casual tourist and not like the cat who ate the canary when he comes to visit you.

You should look at the top of the page where the blue tabs are and read the Guides, look at the flowchart for K1, and read the FAQ and get a good picture of how the K1 process goes if you're not sure. It might help you figure out what to do or help you understand things better if/when you select a lawyer.

Yah, I actually have friends of friends who've acquire a greencard for a British citizen b/c they had a spur of the moment wedding while he was over for 6 weeks. They paid a lot of money to a lawyer and it was settled right quick. That said, I think we want to do things the proper way. That joke is that if the US can't/won't grant us a K1 by May, I'll fly to Scotland and apply for citizenship there.

Thanks for your insite. I saw your timeline, and at least things look rather ok for the Vermont office. I'll be filing with them within the next week or so.

[eric_and_teresa 10]

Hopeful 5, congratulations on doing the right thing and good luck on starting your visa journey!

Eric and I were offered this type of "shortcut" option by lawyers and friends... telling us to use my B-2 to marry and immigrate permanently, (even when there was clearly an intention to immigrate prior to enter the U.S.) and we also decided to do the right thing. It is refreshing to know that others have also chose to do what's right. I can not tell you how upsetting it is everytime I have met couples who try to justify why they lied at the POE and to immigration officers, when we had to wait on line to get the right type of visa to marry and apply for AOS.

When I've asked these couples more questions, I even have gotten very stupid responses such as "there is a secret waiver" to do so, but the USCIS wont tell everyone! Unbelievable! I can't help it but to get like this

Edited June 6, 2008 by eric_and_teresa

[rebeccajo 14]

We plan to have him come over in mid-December 2008 and marry early January. The lawyer said that at any time the US can reject his visa waiver.

I believe the official US stand on that is it's visa fraud. At least that's what I was told that by an official at the USCIS when I asked that question. The reason is the VWP is for tourist purposes only. They fill in the form that says they are here for that reason. So if the intent is to be married, then they basically lied on the VWP form which I suppose could come back to haunt you. I think there are many people who do it the way the lawyer said and get through it fine, even if it borders on the risky side. It's your choice about how you want to go forward and the chances you want to take.

Depending on where where you live in the US, thus whether you file in Vermont (currently faster) or California, he could have the K1 anyway by your wedding timeframe if you filed now.

About visits from the UK to the US. My fiance' has visited on VWP about 29 times since 2000 with no problem. His visits have been short 1-2 week stays. He always says I'm visiting friends. He doesn't go into girlfriend, fiance' talk, etc. Sometimes they have said, "you come here alot" and he says, "yeah, I like it here. I always have fun" or some small talk like that. They don't have to admit anybody, but I just wanted to give an example of many visits with no problem. I think part of the key is to look like a happy, casual tourist and not like the cat who ate the canary when he comes to visit you.

You should look at the top of the page where the blue tabs are and read the Guides, look at the flowchart for K1, and read the FAQ and get a good picture of how the K1 process goes if you're not sure. It might help you figure out what to do or help you understand things better if/when you select a lawyer.

Yah, I actually have friends of friends who've acquire a greencard for a British citizen b/c they had a spur of the moment wedding while he was over for 6 weeks. They paid a lot of money to a lawyer and it was settled right quick. That said, I think we want to do things the proper way. That joke is that if the US can't/won't grant us a K1 by May, I'll fly to Scotland and apply for citizenship there.

Thanks for your insite. I saw your timeline, and at least things look rather ok for the Vermont office. I'll be filing with them within the next week or so.

Hopeful -

What your friends did was perfectly legal (spur of the moment). They hired a lawyer because even if their decision was 'spur of the moment', the onus was on them to prove that it was. The lawyer was in their back pocket in case there had been any questions regarding that decision.

The extant question in these circumstances isn't whether or not the couple plan to marry. It's whether or not the foreign born person wishes to reside permanently in the US.

You should have no problems with getting a visa by May. As Nich-Nick said, it's possible to have it by your original timeline. But this system has its twists and turns, and it's best not to make firm wedding plans till you are further down the road and a better of idea of when you'll see daylight at the end of your tunnel.

Edited June 6, 2008 by rebeccajo