Should we apply for a K-1 immediately?

[ReconditeGrape 0]

My fiancee and I spent 4 years together at the same undergraduate institution, and after graduating about a month ago became engaged. She's currently staying in her home country, but will be applying to law schools in the US for entry in Fall 2011 and is virtually certain to get in.

Our situation seems a little complicated, so I have several questions:

(1) If we don't apply for a K-1 (or get married in her country and apply for a K-3), is there much chance she will be denied entry at a POE if she comes on the visa waiver program to visit for, say, a month and a half? Could she do this once in the fall and once in the spring, or would that raise the chance of denial substantially?

(2) If we don't go through the process now, is there a plausible way for us to apply for AOS in the next 3 years that doesn't involve her being stuck in the US for a long time? She would be in the US for law school on an F-1 visa, but I've seen claims around here that reentering on an F-1 visa after beginning the AOS process (or even getting married???) would be tantamount to visa fraud. Would we have to get Advance Parole for her to leave and reenter the country?

(3) If we apply for a K-1 now, is there any chance that she could come to the US on a visa waiver while we're waiting? I've seen a few claims that this is "possible," albeit extremely difficult -- would you say it's something like a 10% shot? Would most CBP agents send her back the instant they learned about a pending K-1 app?

(4) Finally, given our situation, do you think it would be best just to immediately begin the K-1 process, rather than wait and try to eke out some more visiting time over the next year? (I am hamstrung by my job and could only visit her in her home country for a short time, and we don't want to be apart for so long.)

Thanks in advance for any help -- I know virtually nothing about this process and can use all the advice I can get!

[BelleSade 3]

I'm not an expert but from what I've read here:

1) She can be denied at the POE whether you two have applied for a K-1 or not; if there is suspicion that she's going to stay longer than allowed, no visa application in the world will matter. The best she can do is bring evidence that she's not going to remain in the country.

2) (I have very little knowledge of this one so there's a pretty large chance I'm wrong). It seems that to get an AOS, you have to be in the US. You can get permission to leave, but that's a maybe.

3) Yes she can. Again it's a matter of them not suspecting that she's going to remain, and her not abusing the VWP by visiting many many times. From what I've read here, it seems that it's more likely she'll get in than get denied entry.

4) I'm pretty much in the same situation as you, and I've applied for the K-1 visa. You can visit during the process. Here's a wonderful thread about it.

Read up on the guides here, they're extremely helpful as well. And good luck!

[JimVaPhuong 4,863]

(1) If we don't apply for a K-1 (or get married in her country and apply for a K-3), is there much chance she will be denied entry at a POE if she comes on the visa waiver program to visit for, say, a month and a half? Could she do this once in the fall and once in the spring, or would that raise the chance of denial substantially?

If she's from a VWP waiver country then her chances of being admitted are pretty good. They may ask her if she has a boyfriend in the US. Answering 'yes' would increase her chances of being denied for suspected intent to immigrate. Being denied entry would usually mean she could not return without a visa. It doesn't affect your chances of getting a K1 or CR1, though.

Suspicion of immigrant intent can be overcome at the POE with evidence of strong ties to her home country.

(2) If we don't go through the process now, is there a plausible way for us to apply for AOS in the next 3 years that doesn't involve her being stuck in the US for a long time? She would be in the US for law school on an F-1 visa, but I've seen claims around here that reentering on an F-1 visa after beginning the AOS process (or even getting married???) would be tantamount to visa fraud. Would we have to get Advance Parole for her to leave and reenter the country?

If she begins the AOS process in the US then she cannot leave without advance parole. Leaving would mean abandoning the AOS application. If you decide to get married and apply for AOS while she's in the US then she is committed to remaining here at least until the advance parole is approved. AP generally only takes a few months to get, so I wouldn't think this would be a big problem if she's going to school.

There is always a chance she could be denied entry with a non-immigrant visa or entry pass if they suspect she intends to immigrate. Being married to a US citizen or having a family visa petition or application pending increases the chances of denial.

"Visa fraud" only comes into play if they determine she used a non-immigrant visa to circumvent immigration law and immigrate. In order to deny her AOS on this basis, they need evidence that she intended to immigrate when she applied for her non-immigrant visa or entry pass, or when she entered the US. They also need evidence that she misrepresented her intention to a consular officer or immigration officer. Preconceived intent alone will not result in a denial of AOS. They also need the misrepresentation or other adverse factor.

You could also marry and file for a CR1 while she's in the US. This way she doesn't risk being denied entry unless she leaves and tries to return before the visa is issued. There's also no risk of being denied due to preconceived intent and misrepresentation. She'll have to leave when it comes time to go to the interview in her home country.

(3) If we apply for a K-1 now, is there any chance that she could come to the US on a visa waiver while we're waiting? I've seen a few claims that this is "possible," albeit extremely difficult -- would you say it's something like a 10% shot? Would most CBP agents send her back the instant they learned about a pending K-1 app?

Yes, she can still come and visit. I think "extremely difficult" is an overstatement. It can increase the chances of being denied entry, and a denial would mean a visa is required in the future, but many people have visited using the VWP while a K1 was pending and didn't have any problems. Just don't get anxious and decide to marry and apply for AOS while she's visiting. VWP entrants sign an affidavit declaring their non-immigrant intent, and giving up their right to appeal. If the AOS were denied then she'd have no recourse.

(4) Finally, given our situation, do you think it would be best just to immediately begin the K-1 process, rather than wait and try to eke out some more visiting time over the next year? (I am hamstrung by my job and could only visit her in her home country for a short time, and we don't want to be apart for so long.)

Skip the K1. It imposes too many restrictions. She risks being denied entry while the petition or visa application are pending. She'll have to be in her home country for the interview. She'll have to marry within 90 days of entering with the visa, and she'll be stuck in the US while waiting for her AP to be approved after marriage.

Let her come on the F1. Let your relationship develop, and plan a good time to get married. Then, either apply for AOS or a CR1 visa. The AOS is easier but comes with some risk. The CR1 is less convenient (she'll need to return home for the visa interview) but there's less risk.

Edited June 10, 2010 by JimVaPhuong