how can he stay?

[annak 0]

so, i moved to spain in august 2006 to teach abroad. i met rafael soon after, fell in love and 6 months later i was pregnant. ruben leo, our son, was born october 17, 2008. we decided to move back to the US for fall 2008 because i still had rights to a job in the public school dept and i wanted to work 10 years in order to get vested in the state retirement system. i returned on july 21 and rafael is planning on coming over at the end of august/beginning september. the plan is that he will be child care for ruben while i work. we thought he could come to the US as a tourist, we could get married and we would figure out the paperwork as we went along. after i'm lookng at the USCIS web site and calling the 1800 number i am upset and worried.

it seems like rafa will have to return to spain no matter what after 3 months and wait for the K! to go through. the person who i spoke to at the 1800 number said that if i file the K1 now, it might make it difficult for rafa to enter as a tourist sept 1. and that he needs proof that he'll leave after 30 days.

questions

1. is there anyway that he can stay and we complete the visa process here in the US?

2. if we get married as soon as he gets here could he legally stay?

3. does it matter that we have a baby together?

4. should i immediately hire a lawyer or is this process doable solo?

i've asked him to quit his job, move out of his apt of 8 years and leave his home and family and now it seems like he can only stay for 3 months???

TIA

anna

[YuAndDan 153]

There is a right way and a wrong way to immigrate to the USA, most do it by applying for an immigrant visa either by marriage and applying for a spousal visa at the US consulate or embassy, or filing for it through USCIS.

Entering the USA as a visitor with the intent to stay is considered visa fraud, and can be subject to a 5-10 year bar.

If you are still overseas as a resident of Spain, then consider marriage and then filing for an immigrant visa. (DCF) http://www.embusa.es/cons/immigren.html

DCF requies US citizen to be resident 6 months in the counselor district, it also requires the US citizen to demonstrate that they have US domicile, many move back to USA shortly after filing the I-130 to the consulate, and reestablish domicile.

[pushbrk 14,058]

There is a right way and a wrong way to immigrate to the USA, most do it by applying for an immigrant visa either by marriage and applying for a spousal visa at the US consulate or embassy, or filing for it through USCIS.

Entering the USA as a visitor with the intent to stay is considered visa fraud, and can be subject to a 5-10 year bar.

If you are still overseas as a resident of Spain, then consider marriage and then filing for an immigrant visa. (DCF) http://www.embusa.es/cons/immigren.html

DCF requies US citizen to be resident 6 months in the counselor district, it also requires the US citizen to demonstrate that they have US domicile, many move back to USA shortly after filing the I-130 to the consulate, and reestablish domicile.

I would say this is your best option if you qualify. When we make plans without first researching the rules, we are oft disapointed.

[annak 0]

i am no longer in spain. my son and i moved back to RI on july 21 and I started reading about all this only a few nights ago. so getting married in spain is no longer an option.

so I read this post on a yahoo board. anyone ever hear of this working?

"I`m here in US with tourist visa , my visa will expire in 2 months , can I stay here if I apply for marriage?

I`m here in US with tourist visa , my visa will expire in 2 months , can I stay here if I apply for marriage with a US citizen ?

2 weeks ago

jessica3...

Best Answer - Chosen by Voters

what kind of tourist visa?..if you are here on the visa waiver program then that is not a visa. But if you marry and file the I-130 and I485 before the visa waiver expires you can stay and use the receipt as proof of processing. i never advise that though, its sketchy to me and looked down upon by immigration, but still technically legal. if you are here on any other type of real visa, besides the J1 then you can marry and file the I-130 and not leave also, but you have to be under process before it expires which means a really quick wedding and a race to get the filing done and a receipt received before the 2 months. the right thing to do however is to return to your home country and have your fiance file an I-129f fiance visa, then once you have the visa you come here and get married. just cover all your bases

2 weeks ago"

[Carlawarla 1]

i am no longer in spain. my son and i moved back to RI on july 21 and I started reading about all this only a few nights ago. so getting married in spain is no longer an option.

so I read this post on a yahoo board. anyone ever hear of this working?

"I`m here in US with tourist visa , my visa will expire in 2 months , can I stay here if I apply for marriage?

I`m here in US with tourist visa , my visa will expire in 2 months , can I stay here if I apply for marriage with a US citizen ?

2 weeks ago

jessica3...

Best Answer - Chosen by Voters

what kind of tourist visa?..if you are here on the visa waiver program then that is not a visa. But if you marry and file the I-130 and I485 before the visa waiver expires you can stay and use the receipt as proof of processing. i never advise that though, its sketchy to me and looked down upon by immigration, but still technically legal. if you are here on any other type of real visa, besides the J1 then you can marry and file the I-130 and not leave also, but you have to be under process before it expires which means a really quick wedding and a race to get the filing done and a receipt received before the 2 months. the right thing to do however is to return to your home country and have your fiance file an I-129f fiance visa, then once you have the visa you come here and get married. just cover all your bases

2 weeks ago"

The issue here is intent. If he was already here on a visitors visa and you were now thinking about marriage, and you and he didn't have that intent BEFORE he came to the US, then yes, you could get married and adjust status that way. But if he came over now, or several months from now, with a visitors visa and then you got married and adjusted status that way, it would be fraud. Plain and simple. You can't knowingly have him come over to get married and stay before he even gets here!

Hopefully if it's too late, he can stay with relatives until the process is completed. Start gathering information and reading the Guides above, on this page, and get your petition in now to begin the process. Link to others on here that have fiances from Spain to see what kind of timeline you might be looking at.

During the process, he might still be able to come visit you for 90 days on a visitors visa however he's got to show that he has strong ties to Spain when he comes to visit, or they might not let him in, thinking he's going to just stay. Hopefully it's not too late to cancel leaving the apartment and that he hasn't quit his job yet!!

[pushbrk 14,058]

i am no longer in spain. my son and i moved back to RI on july 21 and I started reading about all this only a few nights ago. so getting married in spain is no longer an option.

so I read this post on a yahoo board. anyone ever hear of this working?

"I`m here in US with tourist visa , my visa will expire in 2 months , can I stay here if I apply for marriage?

I`m here in US with tourist visa , my visa will expire in 2 months , can I stay here if I apply for marriage with a US citizen ?

2 weeks ago

jessica3...

Best Answer - Chosen by Voters

what kind of tourist visa?..if you are here on the visa waiver program then that is not a visa. But if you marry and file the I-130 and I485 before the visa waiver expires you can stay and use the receipt as proof of processing. i never advise that though, its sketchy to me and looked down upon by immigration, but still technically legal. if you are here on any other type of real visa, besides the J1 then you can marry and file the I-130 and not leave also, but you have to be under process before it expires which means a really quick wedding and a race to get the filing done and a receipt received before the 2 months. the right thing to do however is to return to your home country and have your fiance file an I-129f fiance visa, then once you have the visa you come here and get married. just cover all your bases

2 weeks ago"

The issue here is intent. If he was already here on a visitors visa and you were now thinking about marriage, and you and he didn't have that intent BEFORE he came to the US, then yes, you could get married and adjust status that way. But if he came over now, or several months from now, with a visitors visa and then you got married and adjusted status that way, it would be fraud. Plain and simple. You can't knowingly have him come over to get married and stay before he even gets here!

Hopefully if it's too late, he can stay with relatives until the process is completed. Start gathering information and reading the Guides above, on this page, and get your petition in now to begin the process. Link to others on here that have fiances from Spain to see what kind of timeline you might be looking at.

During the process, he might still be able to come visit you for 90 days on a visitors visa however he's got to show that he has strong ties to Spain when he comes to visit, or they might not let him in, thinking he's going to just stay. Hopefully it's not too late to cancel leaving the apartment and that he hasn't quit his job yet!!

Right, as Dan told you early on, Entering the USA as a visitor with the intent to stay is considered visa fraud, and can be subject to a 5-10 year bar."

Your circumstances match the visa fraud scenario, not the scenario of a person who meets their loved one while on a tourist visa, then decides to marry while already here. Trying to fake that, would subject your fiance to deportation and a bar from entering the US. The baby is going to be in that muddy tub of water, making things pretty darn obvious.

[desert_fox 32]

Should he get into the US, talk to an experienced immigration attorney before making any final decisions. People adjust status every day coming here on the VWP, but you need some assurance from someone who knows the process.

Even his admissibility to the US may be iffy. He will depend entirely on what immigration asks, and how he responds, but you cannot lie as they may know the correct answer already.

Do not pay for his airline ticket as immigration already knows how the ticket was paid for.

[pushbrk 14,058]

Should he get into the US, talk to an experienced immigration attorney before making any final decisions. People adjust status every day coming here on the VWP, but you need some assurance from someone who knows the process.

Even his admissibility to the US may be iffy. He will depend entirely on what immigration asks, and how he responds, but you cannot lie as they may know the correct answer already.

Do not pay for his airline ticket as immigration already knows how the ticket was paid for.

I hope you're advising the couple on having a successful US entry for the father instead of nibbling around the edges of advising them on how to succeed at visa fraud. Seeing an attorney during the visit won't hurt anything and may help a lot.

Yes, if coming to visit, and asked the purpose, I'd give a more generic answer than, "to visit my girlfriend and our new baby." That's likely to get him sent packing without entering the US. "Visiting friends and family" is generic AND truthful.

An important point is that if he's quit his job and is living with relatives, he won't be able to show ties to home if asked, so there is a real risk, he won't be allowed entry as a tourist at all.

Edited July 30, 2008 by pushbrk

[desert_fox 32]

I hope you're advising the couple on having a successful US entry for the father instead of nibbling around the edges of advising them on how to succeed at visa fraud. Seeing an attorney during the visit won't hurt anything and may help a lot.

Yes, if coming to visit, and asked the purpose, I'd give a more generic answer than, "to visit my girlfriend and our new baby." That's likely to get him sent packing without entering the US. "Visiting friends and family" is generic AND truthful.

An important point is that if he's quit his job and is living with relatives, he won't be able to show ties to home if asked, so there is a real risk, he won't be allowed entry as a tourist at all.

You can call it fraud, and I even agree that it is. It's circumventing the system, but the law does allow it. Virtually any knowlegeable immigration will tell you that it isnt a problem, and it's done all the time.

His problem, should he decide to stay, is that he will be trapped here for many months, unable to leave the country, can work, and basically having issues to deal with in Spain and being unable to return without making himself inadmissible and possibily needing a waiver to enter a second time.

I wouldnt recommend to anyone to try to AOS as a tourist, but the possibility exists as long as you know up front what the issues will be. I have known ppl who have done ti and the issue really never came up at the interview except as a minor issue.

That is why they need to talk to an immigration attorney, get some concrete advice, and then decide.

[annak 0]

His problem, should he decide to stay, is that he will be trapped here for many months, unable to leave the country, can work, and basically having issues to deal with in Spain and being unable to return without making himself inadmissible and possibily needing a waiver to enter a second time.

staying here is not a problem. he's willing to stay and i'm willing to work. but will there be paper work that needs to happen in spain that will then force him to leave and not be able to come back for a long time? longer than say waiting for the fiancee visa?

[KimandRuss 0]

I would NEVER recommend that he comes over with the intent to immigrate and just hope that it wont be brought up! You are playing with people's lives here. Sure it happens, but it also happens that couples then face even more years apart because they are then filing waivers and fighting a ban.... as mentioned many times above.

It's too bad that you didn't do some research before you left Spain. I'd say your best bet now is to file for the K1 immidiately. Vermont is currently 3-4 months from receiving the petition to approval and I think Spain is a couple more months to schedule the interview. Your fiance could try to visit for 3 months as you wait but it will be up to the boder official to let him in or not. He will need to bring ties to home and have a return ticket to show he is planning on going back. Be honest, be prepared and hope for the best.

good luck.

[desert_fox 32]

staying here is not a problem. he's willing to stay and i'm willing to work. but will there be paper work that needs to happen in spain that will then force him to leave and not be able to come back for a long time? longer than say waiting for the fiancee visa?

It can be stressful, being a non-person for several months.

No reason to return to europe for immigration paperwork as it is all handled within the US. Be careful trying to enter. Im sure he will need solid proof of intent to return to europe.

[vickydeutsch 0]

Hi Annak

I recommend you to start the K1 process ASAP. That's the safest way to be with your loved one and start a new life together.

Good liuck!!!!

Vicky

[LaL 418]

I hope you're advising the couple on having a successful US entry for the father instead of nibbling around the edges of advising them on how to succeed at visa fraud. Seeing an attorney during the visit won't hurt anything and may help a lot.

Yes, if coming to visit, and asked the purpose, I'd give a more generic answer than, "to visit my girlfriend and our new baby." That's likely to get him sent packing without entering the US. "Visiting friends and family" is generic AND truthful.

An important point is that if he's quit his job and is living with relatives, he won't be able to show ties to home if asked, so there is a real risk, he won't be allowed entry as a tourist at all.

You can call it fraud, and I even agree that it is. It's circumventing the system, but the law does allow it. Virtually any knowlegeable immigration will tell you that it isnt a problem, and it's done all the time.

His problem, should he decide to stay, is that he will be trapped here for many months, unable to leave the country, can work, and basically having issues to deal with in Spain and being unable to return without making himself inadmissible and possibily needing a waiver to enter a second time.

I wouldnt recommend to anyone to try to AOS as a tourist, but the possibility exists as long as you know up front what the issues will be. I have known ppl who have done ti and the issue really never came up at the interview except as a minor issue.

That is why they need to talk to an immigration attorney, get some concrete advice, and then decide.

DF - the law does not allow for planned entry on VWP/B2 to the US with intent to immigrate.

[LaL 418]

Should he get into the US, talk to an experienced immigration attorney before making any final decisions. People adjust status every day coming here on the VWP, but you need some assurance from someone who knows the process.

Even his admissibility to the US may be iffy. He will depend entirely on what immigration asks, and how he responds, but you cannot lie as they may know the correct answer already.

Do not pay for his airline ticket as immigration already knows how the ticket was paid for.

Really - you need to step back and think about what you are suggesting here. VisaJourney does not condone, nor support visa fraud, and this is exactly what you are advocating. I will repeat my previous statement : the law does not allow for planned entry on VWP/B2 to the US with intent to immigrate.