K-1: Charting options

[dhruan 0]

Hi,

I have a few questions about the K-1 procedure to which I would like to have feedback from someone "in the know".

I am Finnish and my fiancée is USC. We got engaged when she was on a trip here to see me a couple of weeks ago.

We have not yet filed the I-129F but are in the process of getting the necessary documents for it. (I will start filling my timeline as soon as we get the I-129F filed). I will also get her to join here.

I can travel to the states from the beginning of october (two months from now). I could try to get there earlier (depending on how my work here in Finland permits it), the only real limiting factor would be that I have to be there before the 15th of october (other personal reasons). I can stay in the states for 90 days (visa waiver) as a tourist.

Is it unrealistic to expect that we could get our ducks in a row in time before the 15th (as in me being able to travel to the states with the K1 Visa)?

Oh well, if the application doesn't go through in time it seems that I need to make a trip back to Finland later to get the K1 visa and travel back to the states with it, get married etc.

Hmm, just to be sure, can it hurt the process that I travel to US while the I-129F is still pending?

We are not in that much of a hurry to get married but we are in somewhat of a hurry to get together and stay so...

Thanks for reading this!

[brlukath 1]

(1) No way you'll be done in that time frame.

(2) It doesn't hurt for you to travel while there is a pending I-129F, but whether they allow you to enter is discretionary (need proof of intent to return to Finland)... but, generally, it is not a problem for Europeans on VWP.

Edited September 8, 2009 by brlukath

[dhruan 0]

Ok, thanks...

Slight correction to the original post, the date is 15th november, not october... So yeah, currently looking at flying there early november and getting back early february (within 90 days).

Hmm, I think I can plan the trip, reserve the flights there and back with relative peace of mind.

Even though it is completely up to the immigration officials to decide whether or not they allow me to enter US I do not think they have a reason to stop me from entering because I have a return ticket to Finland.

[payxibka 10,045]

Even though it is completely up to the immigration officials to decide whether or not they allow me to enter US I do not think they have a reason to stop me from entering because I have a return ticket to Finland.

they can stop you from entering for any reason... a return ticket is not de facto evidence of a guanteed return

[dhruan 0]

Well that is indeed true. What I meant was that not having a return ticket would not be the reason to stop me from entering. And to be honest, I have not heard of ordinary Finnish citizens having any problems entering US. There would have to be something seriously wrong if a person is barred entry.

[payxibka 10,045]

Well that is indeed true. What I meant was that not having a return ticket would not be the reason to stop me from entering. And to be honest, I have not heard of ordinary Finnish citizens having any problems entering US. There would have to be something seriously wrong if a person is barred entry.

depends on what you mean by "seriously" wrong... if you "overusing" the VWP it is not something "seriously" wrong other than guilty of overuse, but you will be and can be refused entry for this reason and it occurs more frequently than you might think

Edited September 8, 2009 by payxibka

[JimVaPhuong 4,863]

Well that is indeed true. What I meant was that not having a return ticket would not be the reason to stop me from entering. And to be honest, I have not heard of ordinary Finnish citizens having any problems entering US. There would have to be something seriously wrong if a person is barred entry.

True for a typical tourist. However, you mention "fiancee" to the CBP officer and the dynamic of your conversation is likely to take a sudden turn. Here's the thing...

A US citizen can marry a foreign national whilst in the US, and then petition for that foreign national to obtain legal residency. The foreign national can remain in the US while waiting for the petition to be approved. It's perfectly legal, and is the fastest way to get legal residency in the US through marriage. The kicker is that it's NOT legal for a foreigner to use a non-immigrant entry pass (visa, VWP, etc.) for immigration purposes. The deciding factor is your intent when you cross the border. If your intent is to come to the US, visit, and then leave before your entry permit expires, then all is well. If your intent is to enter the US, marry your fiancee, and apply for legal residency - that would be fraud under US immigration law.

As soon as the CBP officer hears the word "fiancee" he's going to strongly suspect that this is what you intend to do. The burden of evidence for proving that you intend to leave when required will have become significantly heavier. Simply having a round trip ticket probably won't be enough. The CBP is going to want to see proof that you will return, such as a statement from your employer that you are expected back to work, evidence of assets in your home country (real estate, bank accounts, etc.), family that depend on you at home, and other strong ties to your home country. If you provided the necessary evidence and were granted admission, and then you did get married and apply for legal residence, the application would likely be denied and you would be deported for immigration fraud, with a likely lifetime ban from the US.

Having a K1 petition in process can help or hurt in this situation. It can help if CBP believes that, while you DO ultimately intend to immigrate, you are taking the proper steps to do it legally. It can hurt because your intention to immigrate is no longer a suspicion - it is proven fact. It all depends on how the CBP weighs the evidence.

Depending on when your fiancee files the petition, your K1 petition may be approved before the end of your visit to the US. However, you still have to return to Finland for the visa interview. The process cannot be completed while you are still in the US.

[Nik+Heather 121]

Having a K1 petition in process can help or hurt in this situation. It can help if CBP believes that, while you DO ultimately intend to immigrate, you are taking the proper steps to do it legally. It can hurt because your intention to immigrate is no longer a suspicion - it is proven fact. It all depends on how the CBP weighs the evidence.

Yes, since having a K1 in process proves intent to immigrate when they enter, don't you think it would make it difficult/impossible to AOS, therefore pretty safe to let them in and let them get caught at AOS?

I'd be interested to know if anyone has brought the NOA1 (or other visa-in-process documents) as part of their proofs of ties and NOT gotten in. That was the clincher for Nik - of course he was coming for 15 days, not 90.

[missmissy 38]

Well that is indeed true. What I meant was that not having a return ticket would not be the reason to stop me from entering. And to be honest, I have not heard of ordinary Finnish citizens having any problems entering US. There would have to be something seriously wrong if a person is barred entry.

depends on what you mean by "seriously" wrong... if you "overusing" the VWP it is not something "seriously" wrong other than guilty of overuse, but you will be and can be refused entry for this reason and it occurs more frequently than you might think

My fiance is Danish and we thought the same thing and then....WHAMO!! Denied entry for over use of visa waiver. My advice, plan your trips carefully. Nothing puts a serious kink in your budget like (1) half of an unused ticket; and (2) the airline charging you AGAIN for sending you home!

Edited September 8, 2009 by missmissy

[dhruan 0]

Thanks for the replies! Just to clarify, we did not and do not intend to marry before I have entered US with the proper visa.

Ok, lets simplify this a bit, would this work?

File petition > trip to US (VWP) > return back to Finland to claim K-1 > return back to US (K-1) > marriage > etc.

This seems safer (?):

Trip to US (VWP) > file the petition after my arrival > return back to Finland > wait for the K-1 > return back to US (K-1) > marriage > etc.

[dhruan 0]

Ok, answering my own questions after having done a bit of reading, both options have their pros and cons.

The safe way (filing the petition after I arrive) would mean longer waiting time when I return to Finland. The difference would not actually be that much because it is going to take some time anyhow before we get the petition sent forward. So we are talking about something like six weeks more, hmmm...

I have to consult my fiancée but I think we can live with that, we have after all the rest of our lives to spend together...

[ladonna 0]

I think the short answer is ... come on a visa waiver and just don't mention the fiance petition, just tell them you're here as tourist, or visiting a friend. you might open a can of worms by mentioning the fiance petition.