K1 vs CR1 vs AOS - can you help me decide?

[Simmy 3]

Hello all,

I'm a Canadian that's engaged to an American, and planning to immigrate to the U.S.

Even after reading the guides here, I'm still not sure whether to go the K1, CR1 or AOS route. I have two general questions:

1) Should I apply for the K1 visa now and marry after, or should we marry now and apply for the CR1/AOS after?

I am currently visiting my fiancee in the US. I simply drove across the border with my lover and told the guards that I was visiting the woman that I was falling in love with. After proving to them that I wouldn't simply stay here to live, ie. that I have enough money, and that I own a house back in Canada, and showing them a return train ticket, they let me across without mentioning any limits of how long I can stay here. I presume they entered into their computers at the time the stuff I told them. So there was no intent to immigrate or marry at the time, but while I've been here we've decided we do want to marry (I proposed last week), and they probably do have on record that I was visiting my girlfriend.

Given that we haven't actually married yet, would there be any benefit in going through the K-1 process instead of the CR-1 process? I understand that K1 gives us a visa to live together while we wait, but I prefer having the CR-1's flexibility of being able to leave the US after obtaining the visa, along with its other benefits.

Related to the last point, is proving a bona fide marriage with the I-130 application in the CR1 process a tough thing to do? The idea would be to have a courthouse wedding now and a ceremonial wedding next year. We don't have joint ownership of anything, nor kids. So all we'll really have is a marriage certificate and some emails and pictures and the word of friends to show that we love each other. Thus, I'm wondering if the whole bona fide marriage requirement is substantially easier via the K1 process, if indeed it is something to worry about.

2. If the answer to the above is that the K1 process does NOT offer any significant benefits in this situation, then I also want to consider the AOS process on top of the CR1. First of all, for the circumstances I have described, is the AOS process (as described here) even an option? If so, is it preferable to the CR1 route (as described here)? Again, my situation is that I am here as a visitor, not living here, so I'm pretty sure I can't go the AOS route, but was wondering if anyone could confirm this. Also, I'm thinking that although there was no intent to marry or immigrate at the time I crossed the border, this may be hard to prove and am wondering if anyone knows how hard this is to prove in general.

I'm looking forward to whatever insight is offered.

With gratitude,

Simmy

[twowls 217]

My understanding is that the CR1 is significantly less expensive, but neither the K1 nor the CR1 allows the couple to remain together for the duration of the process. There will be a separation, a little longer for a CR1. You can often still visit. One of the reasons (beyond money) that people choose the CR1 is that you can work in and travel outside the U.S immediately on entering with the visa. (Others may clarify or correct me if any of this is inaccurate.)

Someone else may be able to theorize on the difficulty of adjusting based on a spontaneous wedding. Certainly you have to prove lack of intent, and I don't know how exactly you'd go about doing that. If it doesn't work, you won't be happy.

[JimVaPhuong 4,863]

As a visiting Canadian, you stay up to six months unless CBP specifically told you that you have less time.

Understand that both the K1 and CR1 are visas to enter the US - not permission to remain in the US. You have to return to Canada in either case for the visa application and interview. As you noted, the CR1 has the advantage that you'll get a green card within weeks of entering with your CR1 visa, so you'll be able to leave if you wish. With the K1, you'd have to marry within 90 days after entering the US, and then apply for adjustment of status, advance parole, employment authorization, etc. You could use the advance parole to leave the US while you're waiting for the green card, but figure you'll be stuck in the US for at least two or three months before you can leave - depends on how fast you get married and send the AOS package, and how fast USCIS is working at the time.

BTW, it's technically inaccurate to say you are applying for a CR1 and AOS at the same time. Adjustment of status means you're adjusting from one type of status to another, usually from a non-immigrant to an immigrant. A CR1 is an immigrant visa. You would be an immigrant from the moment you entered the US, so there would be no adjustment.

About "preconceived intent" - If you have entered the US legally, and you are the immediate relative of a US citizen (spouse, child, parent), then you are eligible to adjust status and remain in the US while you wait for your green card. This is a courtesy that the US government extends to the US citizen petitioner, and NOT simply an alternative to using the visa system to immigrate. Whenever someone submits an AOS petition this way, without first having obtained a visa that allows immigrant intent, then USCIS will suspect you may have intended to immigrate when you entered the US.

USCIS will not deny your AOS petition simply because they suspect you had a preconceived intent to immigrate. In fact, they won't deny your AOS petition even if they have concrete evidence of your preconceived intent to immigrate. Preconceived intent IS a significant adverse factor, but there is sufficient precedent case law to establish that preconceived intent, by itself, is not enough of an adverse factor to outweigh the positive factor of being the immediate relative of a US citizen. However, if they determine that you had preconceived intent AND that you intentionally misrepresented your intentions to any US immigration authority, then the combined factors of the preconceived intent and the material misrepresentation would be enough to deny your AOS petition, and subsequently ban you from the United States for life for immigration fraud. They don't do this unless they evidence of both the preconceived intent AND the misrepresentation.

If you had no intention of immigrating at the time you entered the US then the statement you made to the CBP officer regarding your intentions was the truth. Unless you can think of some reason why USCIS would have evidence to the contrary, then there is no preconceived intent and no material misrepresentation. You can get married and file an AOS petition, and stay in the US.

If you decide to go this route then you must not leave the US until you receive either your green card or advance parole. If you leave while the AOS is pending without advance parole then your green card petition is considered abandoned. If you leave before submitting the AOS, with the intention of returning and submitting the AOS petition after taking care of some business back in Canada, then you would be re-entering with the preconceived intent to immigrate - not legal.

Good luck, whichever way you decide.

[Simmy 3]

JimVaPhuong, thank you very, very much for your clear and thorough response. I'm digesting the info with intent to reply further..

Gratitude!

[payxibka 10,045]

moving thread to general immigration discussion forum

[Simmy 3]

JimVaPhuong,

I've read your post several times and learned a lot more from reading the guides several times over and perusing the forums.

I do have one remaining question -- you suggest that I can apply for AOS from here. But I am here on the visa waiver program, ie, I drove across from Canada. So I don't have status here, do I? I mean, can I adjust status if I'm only here as a visitor on a visa waiver program?

In lieu of AOS, I will go through the CR-1 process -- I'd stay visiting my girlfriend in the US until the interview date then head back to Canada for the interview.

So in short, can I apply for AOS as a visitor on the visa waiver program?

Thanks,

Simmy