Confused with AOS

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My fiance was just here from England and we were going to get married and file AOS. We called USCIS several times and part of the time they told us this was fine and part of the time they told us this was visa fraud since he entered the country on VWP. Since we couldn't get any straight answer, we were to worried about the visa fraud that now he has gone back to England and we are going to try a K1 fiance visa. Could he have stayed if we had gotten married and filed for the AOS?

[ameribrit 37]

My fiance was just here from England and we were going to get married and file AOS. We called USCIS several times and part of the time they told us this was fine and part of the time they told us this was visa fraud since he entered the country on VWP. Since we couldn't get any straight answer, we were to worried about the visa fraud that now he has gone back to England and we are going to try a K1 fiance visa. Could he have stayed if we had gotten married and filed for the AOS?

You done the safe and prudent thing. Many AOS from VWP are either getting outright denied or put on indefinite hold these days. A year ago it would have been a viable choice. Today, you are doing the right thing in filing for K1.

[caeremonarius 26]

Actually, it's VWP OVERSTAYS that are being denied or put on hold (and not even all of those -- my wife just adjusted status from VWP with a short overstay). I haven't heard of VWP's being denied adjusting status within the 90 days of authorized stay.

AJ

[zips 0]

Caeremonarius - was there any question of her entering the US with the intent to stay and marry you? That was what they were telling us . . . that if he entered the country with any intent to stay it would be visa fraud. We've already bought a house and a vehicle so that kind makes it look like he meant to stay.

[caeremonarius 26]

No questions about intentions during our interview. My then-fiancee arrived in May for a month-long visit, then we decided to get married in July. It was a very spur-of-the-moment thing.

If you didn't have intent to get married on entry, then it's pretty much a non-issue. If you did plan to get married when he came, then that would be visa fraud, but I think that it's been mentioned here that intent to marry is insufficient to deny AOS. However, material misrepresentation to an IO is grounds for denial, and even a ban.

AJ

[JimVaPhuong 4,863]

No questions about intentions during our interview. My then-fiancee arrived in May for a month-long visit, then we decided to get married in July. It was a very spur-of-the-moment thing.

If you didn't have intent to get married on entry, then it's pretty much a non-issue. If you did plan to get married when he came, then that would be visa fraud, but I think that it's been mentioned here that intent to marry is insufficient to deny AOS. However, material misrepresentation to an IO is grounds for denial, and even a ban.

AJ

Whether or not you intend to marry is irrelevant. It's perfectly legal to enter the US with a visitor's visa or VWP with the intent to marry. What's not legal is entering with a non-immigrant entry pass with intention of immigrating. If you enter with a visitor's visa or VWP with the intention of adjusting status and becoming an immigrant then you are in violation of the law.

[caeremonarius 26]

Whether or not you intend to marry is irrelevant. It's perfectly legal to enter the US with a visitor's visa or VWP with the intent to marry. What's not legal is entering with a non-immigrant entry pass with intention of immigrating. If you enter with a visitor's visa or VWP with the intention of adjusting status and becoming an immigrant then you are in violation of the law.

This is correct. Thanks for the clarification (As soon as I posted this, I realized I that I should have made the distinction about adjusting status vs. just getting married. I figured you, Jim, or someone else would clarify!)

AJ

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Thanks everyone . . . so we've done the right thing than by having him go back to England while we file the K1. I just wish it didn't take so long and we didn't have to be apart throughout the process. I know I'm not the only on this forum apart from their loved one, but it's so hard!

[JoannaV 173]

Given that it's done and dusted and he's back in the UK, it doesn't really matter if it was the right decision or not. Personally I wouldn't choose to try to AOS on VWP, and I appreciate it when other people don't take that route. Now I did choose to marry on VWP and do a CR1, but we were very lucky in our timing and so that was quicker/easier/cheaper than a K1. Generally though people say K1 is faster, so I wouldn't even regret the decision not to marry. Anyways, that's history lol.

Now that he is back in the UK, apply for the K1 asap. Remember he can still visit, so hopefully you will manage to get to see each other at least a little bit whilst you are waiting for the visa.

[Brother Hesekiel 2,235]

I would have gotten married, then have him return as your husband to the U.K. This way he would have entered the US with an CR-1 visa as a lawful permanent resident (Green Card holder) and you wouldn't have to go through the dreaded AOS. Cheaper too!

Edited December 27, 2010 by Just Bob