Need advice on visa type for entry

[Comlink 0]

Hello all, my name is Pat and while this is my first post, I've been reading these forums extensively for weeks, now. Wonderful site and people! Hoping I can get some advice on my current situation.

My girlfriend and I would like to marry so we can finally stay together. I'm sure other people have experienced the pain and hardship of having to watch their loved one walk through the security checkpoint at the airport, not to be seen again for a year. We've decided enough of that. She comes back, and barring anything horrible happening, she's staying this time. This summer she came here on a J-1 work/travel visa.

Problem! She isn't entirely sold on the idea of staying here with me "forever" just yet, since we haven't lived together.

So backstory told, my question is this: Since we aren't 100% about where this will end up, should she apply for a J-1 so she can work in the intervening months, or apply for a K-1? J-1 seems better since we actually AREN'T absolutely intending to get married, but it most certainly is on the table of possible outcomes, and she can work when she comes. I want to do this "the most legal way" since the last thing either of us wants is to be forced apart again.

From what I can tell, the major points of each are:

J-1: EAD not required to work immediately; visa non-extensible past DS-2019 end date so about 120 days; possible problems with AOS later since it could be said we "intended to marry".

K-1: EAD required to work, 3 month period minimum between submission and EAD receipt in best of cases; less trouble at AOS and interview; visa good for 90 days maximum; possible issue if we decide to leave again and come back next year.

Obvious to me the simplest answer is "get rid of the 'we must live together first and see if it works'" stipulation, but I don't think that'll happen:) Which is fine with me anyway, since if we marry, it'll be for good. Not one to think of divorce as an option.

This is all I've thought of for the last month. I know it's a toss of the dice either way, since we're dealing with the State, just would like to know what everyone thinks the "least bad" option is.

Thank you for reading, and look forward to seeing the replies!

[sweetanastasia 0]

what about F1? maybe she should try to get into a college or some language courses here? it'll give you more time to stay together and see if your relationship works.

as for j1 advise her on either internship or au pair not work&travel, than the visa will be for a longer period (up to 12 months if she's currently a student)

[Comlink 0]

F-1 is way too expensive for us right now, and she doesn't want to "live off of me". That's why we were considering the J-1 again so much. I'll have to read about the Au pair and internship subtypes though. Sounds like there might be some promise there. Thanks!

[baron555 934]

J-1 seems better since we actually AREN'T absolutely intending to get married,

Then do this and work on determining if you two do want to live forever together. If you do, then she goes back since the J-1 is a work visa and not a fiance visa. You are correct about waiting for the EAD to begin to work. So then get married here, then she immediately goes back and you file for CR-1.

This is all legal and proper. See more below.

but it most certainly is on the table of possible outcomes,

Potential problem with this is that you both do have some predetermination of marrying. If you do get married while she is here on the J-1 (this is not a problem since immigration is not concerned about you marrying) AND you decide to adjust her status while she is here, the fact that there was a possibility of predetermination of getting married when she entered on the J-1 and if this knowledge is fetted out during the AOS interview, her AOS could be denied and then she might be banned for life for misrepresentation. Think very carefully about what you will do. I personally would not suggest you take this very big risk. Many people have done it with no problems and many have tried and they are gone.

I want to do this "the most legal way" Very wise

since the last thing either of us wants is to be forced apart again like forever?

[baron555 934]

We've decided enough of that. She comes back, and barring anything horrible happening, she's staying this time.

Nice committment but immigration does not care about your feelings, they just want you to do things according to the rules that have been set up.

You saying she's staying does not bear any weight with immigration.

This summer she came here on a J-1 work/travel visa.

So therefore she is in the system under a J-1. If she comes back on a J-1 that will be in their system. If you get married and try to adjust status (green card) they will know that she entered here on a J-1. What will you say at the AOS interview? We met while she was here on a J-1 and then she left and then came back and then we suddenly decided to get married and now she wants to stay. They can say, Yea, right, she's outta here. You misrepresented yourselves and used the J-1 to immigrate for purposes of getting married not just working and then returning as the J-1 rules state.

Sri, but unless you want to travel back with her and stay with her while you use other immigration visa petitions for her, I can't see how she can stay and you try to adjust her status, without taking this very big risk.

[Comlink 0]

Well, all things point to K-1 being the answer, here. I am financially able to support us both for the interim period when she can't work legally, and if she decides to wait, I assume I could just re-file a 129f and get another K-1 later. I hear that AOS from exchange visas is non-appealable also, so that's another reason not to use that.

I don't see how coming here on a J-1 sometime in the past would have any bearing on the current situation, except perhaps to show that she used that visa, and then did in fact leave again. Seems like it would be a good thing, not a bad. As far as being charged with visa fraud and permanently banned, yes the burden of evidence is on us, but unless someone actually tells the interviewer "she always meant to stay and lied about it" I don't think that really has any serious chance of happening.

Am I saying that's what we'll do? No. This is too important to risk a screwup out of laziness or impatience. Luckily we're both young so if it takes an extra few months (through CR-1 process after J-1) we aren't going to miss out on too much life. Hate to pay for extra plane tickets though!

[AKguy 1]

Well, all things point to K-1 being the answer, here. I am financially able to support us both for the interim period when she can't work legally, and if she decides to wait, I assume I could just re-file a 129f and get another K-1 later. I hear that AOS from exchange visas is non-appealable also, so that's another reason not to use that.

I don't see how coming here on a J-1 sometime in the past would have any bearing on the current situation, except perhaps to show that she used that visa, and then did in fact leave again. Seems like it would be a good thing, not a bad. As far as being charged with visa fraud and permanently banned, yes the burden of evidence is on us, but unless someone actually tells the interviewer "she always meant to stay and lied about it" I don't think that really has any serious chance of happening.

Am I saying that's what we'll do? No. This is too important to risk a screwup out of laziness or impatience. Luckily we're both young so if it takes an extra few months (through CR-1 process after J-1) we aren't going to miss out on too much life. Hate to pay for extra plane tickets though!

I believe she'll have to go back home while you wait for this 2nd petition to be approved. So, wait for 6+ months to get the 1st approved, she comes here for 90 days, leaves, you file another K-1 and wait 6+ months, she comes back. Am I understanding correctly? Sounds like torture to me.

[Comlink 0]

Yeah.. you're exactly right. If she came on J-1 and we married, she'd have to leave and use CR-1 or K-3 to come back. If we use K-1 and for whatever reason she can't stay this time, the WHOLE process would have to start over again. I don't know about anyone else, but having to give up the one person in the world that actually brings happiness to you is possibly the hardest thing in life. Especially when I know just how long it would be. Well, luckily we're talking about it. Major issue is she wants to finish last year of university (can't blame her!) and we had to make sure if she left for a year or two, she could go back and complete that. Looks now like everything is going to work out though. It would seem love really is a powerful force:)