AOS/Visa Waiver Program Question

[Henia 11]

Hello everyone! Have a question ... with many new countries entering into the Visa Waiver Program soon , was wondering if this is doable or a big NO-NO!

Foreign SO enters the US throu the Visa Waiver Program as tourist. Mets SO ... they decide to marry then do the INS thing ... ok here are my questions:

1, can they marry with the above situation in the US?

2, can the SO stay to file AOS or will they have to go back to file for K visa?

Thanks much everyone! Good luck!

[Jon&Lindsey 0]

It is possible, but the key thing is that the immigrant spouse must NOT INTEND to stay and adjust when they enter on the VWP. Entering on VWP with intent to stay and trying to do AOS = fraud.

In the situation you describe, where someone enters on VWP, THEN meets their future spouse and gets married and adjusts on that visit (without leaving), it would be possible theoretically as the foreign spouse obviously could not have had intent to marry their spouse and stay when they entered, if they hadn't even met them then. However, the couple might have difficulty proving that the marriage is bona fide if they met, got married and the foreign spouse didn't need to return home all within the three month stay you get with VWP. It is visa fraud to use the VWP to enter with the intention of staying - if someone had intent on their entry, they should return to their country and file for the appropriate fiance/spousal visa.

Just getting married on the VWP and then leaving (before VWP stay expires) is fine, it's just that you can't adjust and stay unless you had NO intent to do this on entry, and can prove ties to your home country and your intention to return there.

[payxibka 10,048]

Hello everyone! Have a question ... with many new countries entering into the Visa Waiver Program soon , was wondering if this is doable or a big NO-NO!

Foreign SO enters the US throu the Visa Waiver Program as tourist. Mets SO ... they decide to marry then do the INS thing ... ok here are my questions:

1, can they marry with the above situation in the US?

2, can the SO stay to file AOS or will they have to go back to file for K visa?

Thanks much everyone! Good luck!

1) Yes

2) Yes; If they want

[Eric-Pris 1,607]

The immigrant involved will have to prove what his/her intentions were upon entry. It is up to the immigration officer to decide if they are telling the truth or lying. It is VERY subjective. There may have been no intent, but if the officer feels that there was intent, game over!

People have gotten away with it, but it's risky because it's subjective. If they feel there was intent (even if there wasn't), I believe that you can't then apply for a K-visa either. I'm not sure, but you may even get a ban.

[Henia 11]

Thanks for those replies .... but now here goes another set of quetions:

1, I read on the site that even with the Visa waiver program the person needs to enter for business or tourism purposes ... does meeting SO qualify as tourism? Does the person have to show where they will stay for the duration of the visit? Like hotel or residence? And if so, stating they will stay with SO will that get them in trouble as in later on filing ...

2,The couple does know each other ... so from the above AOS cannot be filed but then will be if the foreign SO can enter the US >can they marry in the US ... then the SO leaves back to their home country ... from they will file for K visa or not? Or can the foreign SO least come just to visit then leave back to their country ... from there file for K visa?

Sorry if I am making this so complicated! Thanks again!

Edited October 23, 2008 by Henia

[Henia 11]

Anyone can help with these above? Thanks!!

[Jon&Lindsey 0]

Thanks for those replies .... but now here goes another set of quetions:

1, I read on the site that even with the Visa waiver program the person needs to enter for business or tourism purposes ... does meeting SO qualify as tourism? Does the person have to show where they will stay for the duration of the visit? Like hotel or residence? And if so, stating they will stay with SO will that get them in trouble as in later on filing ...

2,The couple does know each other ... so from the above AOS cannot be filed but then will be if the foreign SO can enter the US >can they marry in the US ... then the SO leaves back to their home country ... from they will file for K visa or not? Or can the foreign SO least come just to visit then leave back to their country ... from there file for K visa?

Sorry if I am making this so complicated! Thanks again!

1. I don't quite understand the question - if the hypothetical situation is that someone comes on the VWP, THEN meets the SO and decides to get married, then yes the purpose of their trip must have been tourism/business... they could surely not be travelling with the intent of meeting someone and staying?? I thought you meant someone innocently comes on the VWP to visit the US and meets their new SO by chance? You are allowed to come in to visit an existed SO (=tourism) but NOT with INTENT of staying and adjusting status. If the SO is already the spouse (not just boy/girlfriend) you may have difficulties entering, as they may suspect you intend to stay, and it is hard to prove that you intended to return if you are already married to the SO. I came in to visit my then boyfriend, and then we later decided to get married and adjust, which IS allowed, you just cannot use the VWP with the intention to stay and adjust, as this is visa fraud.

2. Yes, the foreign SO can come to visit and no problem if they leave before the VWP expires (although like I said above, if a foreign spouse tries to enter on VWP, they may deny as they may think they intend to remain). You can also get married in the US and then leave, although then it would be a spousal visa you would then apply for, not a fiance visa. It is also possible to visit the US SO on VWP while awaiting processing of a fiance visa application.

Hope that made sense... the main thing to remember is that it is fraud to enter on the VWP with the INTENT to remain and adjust status, and anyone doing it this way must be prepared for the possibility of having to defend themselves from this accusation at interview. You may also be denied entery on the VWP if immigration THINKS that you might not leave when your VWP expires.

[Henia 11]

Ok I see now ... thank you for clarifying that!

[_pegasus_ 0]

Hi guys,

I've only just found out that it is possible to apply for a AOS while visiting with a VWP, and i'm feeling kind of confused right now.

I met my now fiancee in 07, and I've since travelled to the US a few times using the VWP. We filed for the K1 visa a few weeks ago, which means I'll probably have to wait til april or may to finally be able to join her again. Would it be a sensible thing to do for me to go back to see her again but this time get married and apply for the AOS. The fact that I have to register for NSEERS just makes things a hell of alot more complicated.

I'd appreciate any advice.

[Nich-Nick 3,354]

Does the person have to show where they will stay for the duration of the visit? Like hotel or residence?

Yes, that's on the landing card you fill out with the address of where you are staying and sometimes the immigration officers asks too.

2,The couple does know each other ... so from the above AOS cannot be filed but then will be if the foreign SO can enter the US >can they marry in the US ... then the SO leaves back to their home country ... from they will file for K visa or not? Or can the foreign SO least come just to visit then leave back to their country ... from there file for K visa?

It isn't clear what you are asking.

Basically I think you want to come on a VWP and get married and stay in the US. If it was that easy and legal, we would all be doing it. The USCIS considers it FRAUD to come on a visa waiver (as a tourist) with the real plan of getting married and not leaving the US. Some people get by with it, but it is risky, so most couples do the standard legal procedure of applying for a K1 visa.

[NickyMcMillan 0]

Hi guys,

I've only just found out that it is possible to apply for a AOS while visiting with a VWP, and i'm feeling kind of confused right now.

I met my now fiancee in 07, and I've since travelled to the US a few times using the VWP. We filed for the K1 visa a few weeks ago, which means I'll probably have to wait til april or may to finally be able to join her again. Would it be a sensible thing to do for me to go back to see her again but this time get married and apply for the AOS. The fact that I have to register for NSEERS just makes things a hell of alot more complicated.

I'd appreciate any advice.

No, don't go over on VWP to get married. That is visa fraud, as said before on this thread. With AOS, you would have to prove you did not enter the US with the idea of getting married. I'm not sure how you would be able to acheive this, with the K1 visa already started.

All the best!

[pushbrk 13,632]

Hello everyone! Have a question ... with many new countries entering into the Visa Waiver Program soon , was wondering if this is doable or a big NO-NO!

Foreign SO enters the US throu the Visa Waiver Program as tourist. Mets SO ... they decide to marry then do the INS thing ... ok here are my questions:

1, can they marry with the above situation in the US?

2, can the SO stay to file AOS or will they have to go back to file for K visa?

Thanks much everyone! Good luck!

The sequence of events with regard to the "decide to marry then do the INS thing" is the key. If the decision to marry and stay occurs after entry, that's legal. If they decide to circumvent US law by entering with the intent to marry and remain while adjusting status, that's visa fraud, punishable by up to a lifetime ban from the USA. This would be true if there were only one VWP country or a hundred. VWP is for visiting, not immigrating.