Help Needed!

[BristoLee27 0]

Hi eveyone, I was really hoping for some advice and information regarding the situation my girlfriend and I are in! I am a British Citizen living in England, and my girlfriend is a US Citizen living in Pennsylvania. Last month, we had a baby daughter together which lives in the US with her. At the moment, we are trying to decide what's the best course of action to be together-if it's too difficult for me to get there then maybe they can come here. But we have talked about getting married in Pennsylvania in September, with the intention of filing for a visa to enable me to come over and eventually work. I have a potential job lined up next year in Nevada but it all depends on the speed of the Visa Process!

My girlfriend has spoken to USCIS and they have said that if I come over and we marry in September and begin the process, then I am not allowed to leave the USA until I am a permanent resident-is this true?! Ideally, I'd need to come back to the UK after we marry (and/or send the papers) to carry on working/saving money for when the Employment Authorization is ready. Being over there with no income doesn't sound like the best idea as we would struggle financially! We've looked over the guides but seem to hear conflicting things, and we are unsure of what process to undertake. Basically I need to be able to work over there ASAP, or carry on working here with the ability to travel and see them both, or them come here and visit until I can legally work. Two more questions: I know it's hard to tell, but roughly how long would it take for me to be able to start working? And: Is the marriage (K-3) route the best, or fiance (K-1) first?

Any help and advice will be GREATLY appreciated!!

Lee.

Edited July 17, 2008 by BristoLee27

[MsZ 6]

If you don't apply for a visa (K-1) prior to marriage, you can return to the UK for work and you can file for either a K-3 or a CR-1.

If you apply for a fiance visa (K-1) you would need to apply for advance parole before you could leave the US.

The reason you'd want a K-1 would be if you wanted to stay in the US and adjust status after marriage and, to get you here the fastest. You can work right away but there's a time limit as to how long you can work. So you'd have to apply to work which might have you sitting around w/o working for a while. If you don't have a job in the US it might give you time to find one.

It can be a wash between the K-3 and the CR-1 in terms of entering the country and working. With a K-3 you have to apply for employment authorization which can take some time. But, since you can leave the US and return to the UK for work, it isn't like you have to be unemployed the entire time it takes for the authorization. But with a CR-1 you'd enter and be able to work straightaway. But in both cases it will take longer to get a visa than the K-1.

[BristoLee27 0]

Thanks for the response MsZ! That's clarified things a bit more, although what do you think the USCIS meant when they said I had to stay? It seems more sense to have people leave the country and then re-enter on the appropriate visa. Unless they thought we were already on a K-1. So if we apply for a K-1 Fiance now, while I am in the UK, can I work as soon as I arrive in the US on that visa? And then get married while I'm over, and begin the next visa process? I'm just trying to figure out the quickest way to get me working there, but not neccesarily living there. Sorry about all the questions!! Many thanks, Lee.

[rin and john 71]

Thanks for the response MsZ! That's clarified things a bit more, although what do you think the USCIS meant when they said I had to stay? It seems more sense to have people leave the country and then re-enter on the appropriate visa. Unless they thought we were already on a K-1. So if we apply for a K-1 Fiance now, while I am in the UK, can I work as soon as I arrive in the US on that visa? And then get married while I'm over, and begin the next visa process? I'm just trying to figure out the quickest way to get me working there, but not neccesarily living there. Sorry about all the questions!! Many thanks, Lee.

If you file an I-485 (adjustment of status) after marrying in the USA, you are applying for a GC, not a visa. If you depart the USA before receiving the GC, then you are abandoning the application. I would not advise entering the USA via the VWP with the intent to marry, stay, and file AOS. That is immigration fraud. Coming as a tourist, student, worker, meeting someone, falling in love, and getting married and then filing AOS is not fraud.

If you marry in the USA and leave, your spouse would file a I-130, petition for a foreign relative (She can file before or after you leave the USA, doesn't matter). After that is filed, you can either pursue a CR-1/IR-1 visa (and receive GC and right to work upon entry into the USA) or submit a I-129F to get a K-3 visa (valid for 2 years, have to adjust status - I-485 - and apply for work authorization - EAD - before you can work in the USA).

As the fiance or spouse of an American, you can live in the USA faster than you can work in the USA. The shortest amount of time between arrival and work is for the CR-1/IR-1 visa. However, it is the longest from filing to approval.

[MsZ 6]

If you married under a K1, you file for advance parole so you can leave after applying for adjustment of status. You don't abandon your status by leaving the country if you leave with an approved advance parole.

See the K-1 flowchart and read this : http://www.visajourney.com/faq/k1k2visa-aos.html

And since you were planning to leave the US after marriage, it is not visa fraud if you marry w/o a K-1. It would only be fraudulent if you intended to stay and change status.

As for what the person at USCIS meant, I have no idea. There is a period where you can't leave, but that is lifted with the AP. The sad thing is that there are a lot of tales of bad information being given by agents. So read the guides, ask questions, and think about what is best for you.

We went for a CR1 because of the work thing. Also, at the time, the guide for K-3 was wrong stating that you needed to file for AP to leave. That restriction was unacceptable as my husband needs to be able to return to Canada at any time. But now that I'm clear that the K-3 is a multi-entry visa, I'd have no problem going that route and having him unable to work in the US because he could always work in Canada but at least we could start moving on other plans!!

The down side of the K3 is that it is more expensive and that delay in working. The up-side of the CR1 is that it is an immigration visa and you enter able to work and it is cheaper and less hassle in the long run.

A K-1 has the most hassle in the end, offers the fewest direct benefits, but it gets you together fastest. And there's a lot to be said for being together fast.

[BristoLee27 0]

Thanks again for the replies. Things are getting a little clearer, but still have a couple more questions...! So what is the benefit of 'Option A': Applying for a K-1 before I come, then marrying in the US, then AOS, and waiting 90 days to be able to work-as opposed to 'Option B': coming over as normal under the visa waiver program, marrying at the same intended time, then applying for a K-3 or CR-1 and waiting to work? Sorry but one more question-and with both 'options', when do you apply and become approved for advanced parole/ability to leave the US? So basically the K-3 visa would get me there quicker to live but longer to be able to work, as opposed to the CR-1 which would take longer to process but get me working faster...and on either, I would be in the UK while being processed, right...?

[BristoLee27 0]

Our ideal scenario is that I come in September, we marry, file for the appropriate visa, I return to the UK and continue to work while the visa is processed and go to interviews etc. All this until the EAD is complete and I am allowed to work in the US...Is that wishful thinking?!!

[MsZ 6]

Thanks again for the replies. Things are getting a little clearer, but still have a couple more questions...! So what is the benefit of 'Option A': Applying for a K-1 before I come, then marrying in the US, then AOS, and waiting 90 days to be able to work-as opposed to 'Option B': coming over as normal under the visa waiver program, marrying at the same intended time, then applying for a K-3 or CR-1 and waiting to work?

The benefit is being together sooner because the K-1 is generally approved much sooner than either a K-3 or CR-1.

With a CR-1, you don't have to wait to work. Once you get your visa, you're good to go. With the K-3, there is a wait.

Sorry but one more question-and with both 'options', when do you apply and become approved for advanced parole/ability to leave the US?

At the same time you apply for AOS. I can't remember off-hand if they have stats on how long it takes to be approved for AP on the Processing Times link at the top or not...

So basically the K-3 visa would get me there quicker to live but longer to be able to work, as opposed to the CR-1 which would take longer to process but get me working faster...and on either, I would be in the UK while being processed, right...?

Correct.

Now, you *can* come to the US to visit during this time, so you're not completely cut off from one another. There are a lot of discussions about this but people from VWP and no-visa-required countries have a much easier time of this than others so you're lucky in that respect. Us too, with my husband being Canadian.

[MsZ 6]

Our ideal scenario is that I come in September, we marry, file for the appropriate visa, I return to the UK and continue to work while the visa is processed and go to interviews etc. All this until the EAD is complete and I am allowed to work in the US...Is that wishful thinking?!!

So you're thinking K-3?

It isn't wishful thinking. It is very doable.

We're doing the same thing only with the CR-1.

The real drag is the wait and not being able to get any information out of USCIS. So whatever you decide to do, get your paperwork and documents in order ASAP and file as soon as you are able.

[BristoLee27 0]

I think I understand now the difference in visas, and how they are more appropriate to different people's situations! K-3 sounds good if I can travel back to the UK after the wedding in September, save some money to help pay for rent etc. when I am allowed to live (but not yet work) in the US. Would it take about 3 months for me to move over there on the K-3? I take it when I come over to live but not yet work on the K-3, is when I am not allowed to leave the US and have to do biometrics, medicals etc.? And I have the main interview at the US Embassy in London for the visa before I come? Thanks again to you both..!!

Edited July 18, 2008 by BristoLee27

[rin and john 71]

I think I understand now the difference in visas, and how they are more appropriate to different people's situations! K-3 sounds good if I can travel back to the UK after the wedding in September, save some money to help pay for rent etc. when I am allowed to live (but not yet work) in the US. Would it take about 3 months for me to move over there on the K-3? I take it when I come over to live but not yet work on the K-3, is when I am not allowed to leave the US and have to do biometrics, medicals etc.? And I have the main interview at the US Embassy in London for the visa before I come? Thanks again to you both..!!

You can actually do both the K-3 and the CR-1. You would:

1) Come to USA and get married.

2) File for K-3 (before or after returning to UK). Would have to file both the I-130 and the I-129F.

3) Wait (in UK) for USCIS to approve both petitions.

4) Most likely, the K-3 will be finished 2 to 4 months before the CR-1 could be completed. You could travel freely between the UK and US at that time (without fear of being turned away at POE).

5) When the I-130 is approved, make sure USCIS is aware you are pursuing both the K-3 and CR-1 and that the I-130 should also be forwarded to the NVC.

6) When the NVC receives the I-130, your SO will receive instructions on how to proceed (pay IV bill, etc).

7) The CR-1 will be processed and your interview will be in the UK once it clears NVC.

Others have chosen to take this path - get K-3 then pursue GC via the CR-1 path rather than AOS.

With regards to timing, the K-3 and CR-1 both require approved I-130 petitions by USCIS; the K-3 also requires an approved I-129F. Approval times vary by service center, so hard to say how long it will take without knowing where your petition is filed. Check the K-3 timelines under "immigration timelines" link at the top of the page.

Best of luck!

John

Edited July 18, 2008 by rin and john

[pushbrk 13,611]

Thanks for the response MsZ! That's clarified things a bit more, although what do you think the USCIS meant when they said I had to stay? It seems more sense to have people leave the country and then re-enter on the appropriate visa. Unless they thought we were already on a K-1. So if we apply for a K-1 Fiance now, while I am in the UK, can I work as soon as I arrive in the US on that visa? And then get married while I'm over, and begin the next visa process? I'm just trying to figure out the quickest way to get me working there, but not neccesarily living there. Sorry about all the questions!! Many thanks, Lee.

USCIS was thinking about you coming to the USA, marrying and then staying to adjust status. To do so intentionally would be visa fraud but the operators don't understand that. If you come and marry, you can certainly return to the UK while your CR1 or K3 visa process plays out.

[BristoLee27 0]

Again, thank you for your replies-spoke to another agent at USCIS today who was a lot more helpful this time around! But still have a couple more questions if anybody can help. Does the following scenario then sound possible...? This is how I have kinda worked it out in my head, feel free to correct me or advise on doing something better!

Enter on VWP as usual in Sept.>We get married in September. > We file the I-130 and the G235 A.> I return to the UK, continue to work until I have saved enough money to help support ourselves when I come to the US unable to work. > File the I-129 F. > Enter the USA on VWP when I have saved enough, maybe 3-4 months after the wedding. (OR, do I have to wait to enter until the I-129 F has been fully approved?!) > Then, Adjustment of Status to eventually obtain work permit in 75-90 days. Am I allowed to enter the US on VWP even when a visa is being processed?

Another scenario we thought about is waiting to save money first, then marry in December...and file everything, including AOS while I am there. Meaning I am not supposed to leave, or is this now immigration fraud?

Thanks again for putting up with all my questions, all the help is greatly appreciated!

[rin and john 71]

Again, thank you for your replies-spoke to another agent at USCIS today who was a lot more helpful this time around! But still have a couple more questions if anybody can help. Does the following scenario then sound possible...? This is how I have kinda worked it out in my head, feel free to correct me or advise on doing something better!

Enter on VWP as usual in Sept.OK >We get married in September. OK> We file the I-130 and the G235 A.OK > I return to the UK, continue to work until I have saved enough money to help support ourselves when I come to the US unable to work. OK > File the I-129 F.(can file when I-130 NOA1 rcd) > Enter the USA on VWP when I have saved enough, maybe 3-4 months after the wedding. (can enter, cannot stay - visa fraud) (OR, do I have to wait to enter until the I-129 F has been fully approved?!) - have to have visa to stay and file AOS once a petition has been filed > Then, Adjustment of Status to eventually obtain work permit in 75-90 days. Am I allowed to enter the US on VWP even when a visa is being processed? Yes, without intent to stay, but have to prove that to immigration official at POE.

Entering on the VWP with the "intent" to remain in the USA is immigration fraud (VWP is for visitors, not intending immigrants). You can file the I-129F as soon as you receive the NOA1 for the I-130 (some people have even successfully filed them at the same time). You can enter the USA while your petition is pending provided it is to visit, but you will need to provide sufficient evidence at the POE that you have "closer" ties to the UK and will not remain in the USA (it's pretty much up to immigration at the POE to decide whether to admit you on the VWP or not). So yes, you can potentially enter the USA on the VWP while your petition in being processed; your K-3 visa would still be issued in the UK, so you would be unable to remain here and adjust status. You would not file AOS or EAD until you entered with the K-3 visa (cannot do before it is approved).

Another scenario we thought about is waiting to save money first, then marry in December...and file everything, including AOS while I am there. Meaning I am not supposed to leave, or is this now immigration fraud?

If you enter under the VWP with the "intent" to marry and remain in the USA, that is immigration fraud.

Thanks again for putting up with all my questions, all the help is greatly appreciated!

[BristoLee27 0]

Thank you rinandjohn for the response, I actually think most of my questions have been answered now, and I am so much clearer on the whole process. I wil definitely not be staying after the wedding then!! Which actually works out better as I need to save money. Just 2 more questions, I can't seem to able to find a clear average time it takes for the 1-129F to be fully approved so you can move over, I'm sure it differs between different countries but will we be waiting a long time or are we talking 4-6 months from when we file in September? And also, so if we ignored the I-129F/K-3 visa route after I-130 is approved, would it be ok to stay over for 90 days at a time under the VWP? As then, the CR-1 route could complete quicker... What would you guys do?

Edited July 19, 2008 by BristoLee27