Getting married under VWP while K1 is pending???

[SuperCooky 0]

Hi all!

I am new here and a bit lost...

I'm a French citizen and my USC boyfriend filed an I 129F petition for K1 and we received NOA1 on january 18th.

I'm now in the US under VWP, i arrived a month ago with the intention of staying for the 90 days i'm allowed to with the VWP and then go back to France to wait for NOA2 and the whole K1 thing to be done.

Few days ago, we decided to go see an immigration lawyer here in California, and she asked us why i was going back to France though i was already here and she said we could get married now and ask for Adjustment of Status while i stay in the US.

So i just don't get it, is she trying to make money? Is this really legal? From forums, i understood that you cannot adjust status from VWP unless you're an "immediate relative". And then we would have to prove that i did not come to the US with the intent of getting married. I don't see how that is possible since we applied for a K1, showing that we want to get married (even if we did not plan to get married now).

When the lawyer talked about this option she made it sound like there was very little chance that an AOS would be refused if we marry now, we were so happy thinking that we would not have to be apart again.

We really don't know what to do so any help would be welcome!!!

[Inky 1,111]

You already filed the K-1 and have a NOA1?

If so its not advisable to marry and try to AOS from VWP, with a pending K-1.

Most lawyers want money and don't really care about what happens to the people involved.

[SuperCooky 0]

Yes the date for the NOA1 is January, 18th and we haven't had any news since then.

Thanks Inky for your answer, i also thought she was just interested in the money, but then we looked for info and the answers we found were so unclear, so we really did not know what to do.

AOS from VWP is like russian roulette apparently...

Is there anyone who did it? Getting married under VWP?

[Otto 83]

If its advice on how you can circumvent US Immigration Law - you won't find that here on VJ (ask your attorney).

What is your life-goal here? To be married sooner than perhaps originally planned? Or to simply not be away from your loved one? If its the latter, there is nothing that says you can't visit the US while the petition is being processed - you just can't stay over your allowed expiration date.

[SuperCooky 0]

I'm not trying to circumvent anything, was simply asking for advice regarding what the lawyer said because we did not even know that AOS could be an option before we talked to her, and so i wanted to make sure she was giving us good legal advice and not just trying to make us pay her!

It's already been 4 months since the NOA1, and now i still have 2 months to spend here in the US with my fiance before i have to go back to France, so we should not have to spend much time apart till i get the K1. If all goes well, maybe 3 or 4 months apart, and we've done that before. Thus i don't know why you assume i'm trying to do somethimg illegal.

[Brother Hesekiel 2,236]

I'm a French citizen and my USC boyfriend filed an I 129F petition for K1 and we received NOA1 on january 18th.

I'm now in the US under VWP, i arrived a month ago with the intention of staying for the 90 days i'm allowed to with the VWP and then go back to France to wait for NOA2 and the whole K1 thing to be done.

There you have your answer. You arrived in the US with the intention to stay for 90 days, but not to get married. If you now get married, you will become the "immediate relative" of a US citizen, your husband. Thereafter, you are eligible to file for Adjustment of Status.

You need to understand this: it's perfectly legal to get married on the VWP. What is not legal is to travel to the US with the intention to get married and afterward to apply for AOS. According to your own post, that wasn't your intention. So your attorney is correct. Not a problem, as long as you have your AOS application received by USCIS before your (electronic) I-94W expires.

[pushbrk 12,979]

There you have your answer. You arrived in the US with the intention to stay for 90 days, but not to get married. If you now get married, you will become the "immediate relative" of a US citizen, your husband. Thereafter, you are eligible to file for Adjustment of Status.

You need to understand this: it's perfectly legal to get married on the VWP. What is not legal is to travel to the US with the intention to get married and afterward to apply for AOS. According to your own post, that wasn't your intention. So your attorney is correct. Not a problem, as long as you have your AOS application received by USCIS before your (electronic) I-94W expires.

Correct, however, if there is a denial, there's no appeal when adjusting from VWP. Did the lawyer mention that not only the marriage but also the AOS filing must occur BEFORE your 90 days is up? Did the lawyer address the additional risk resulting from having already declared your immigrant intent with an I-129F petition and letters of intent to marry? Four months into the process, I would just follow through with the K1 if it were me.

[AlinaH 38]

Wouldn't they also have to prove that there was NO intent to marry. I think that would be hard to do since they're engaged and have already started the K1. I would wait too, personally. I just wouldn't want to screw it up

[Good Life 7]

It seems CSC is moving pretty fast with approvals and you most likely will get the NOA2 shortly. Why take the risk? Just enjoy yourself while here and go back to complete the process in France which will not take too much longer. I know it's hard to be away from loved ones, but sometimes anything good is worth waiting for. When you were allowed into the US you stated that your intention was not to get married, so I will advise you not to do it. You have waited this long and your are almost there. Good luck on your journey of love and life

[Helen Louise Pile 80]

As has been said...it's all about your intent. You would have to prove your intent was not to marry when you arrive. Presumably you did not 'organise' yourself to leave before you came to the US. So it might not be difficult to 'prove'...but I have no idea.

It seems like your situation is a bit like ours was. I spent 88 days in the US on VWP, arriving 5 days after my husband (then fiance) did. He had filed the paperwork. When I got back to Scotland, packet 3 was waiting for me and I was able to organise everything and say goodbye to family and friends properly in that time. We were only apart for 8weeks and I now appreciate that time so much because I felt ready to say goodbye to my family and organise everything.

If I were you, I'd finish the K1 stuff, hopefully it will go quickly. You can get yourself organised to deal with packet3 (police certificates, any translations of documents etc) while you wait for it. And if you have someone at home checking the mail you can decide to fly back early and deal with the paperwork sooner and then come back sooner if your NOA2 comes before the end of your trip.

Good luck!!

[katiemanny 64]

I would strongly suggest to follow the k1 route instead of marrying here and file for AOS, coming here with a pending k1 and marrying your US fiance and file for AOS, the intention of staying prior to your arrival to the US will be pretty obvious to the IO at your AOS interview, just understand the risk you'll be taking if you decide to stay, no right to appeal if your AOS is denied. Plus a ban for overstaying.

[Rebecca Jo 1,962]

Correct, however, if there is a denial, there's no appeal when adjusting from VWP. Did the lawyer mention that not only the marriage but also the AOS filing must occur BEFORE your 90 days is up? Did the lawyer address the additional risk resulting from having already declared your immigrant intent with an I-129F petition and letters of intent to marry? Four months into the process, I would just follow through with the K1 if it were me.

People do this all the time.

[Blob18 111]

People do this all the time.

And it doesn't end well for many of them.

Risk vs Reward. Is the risk great enough to take after spending the $$$$ and being 4 months in? K-1 was filed, they can say there was intent even if there wasn't based soley on that.

[Rebecca Jo 1,962]

And it doesn't end well for many of them.

Risk vs Reward. Is the risk great enough to take after spending the $$$$ and being 4 months in? K-1 was filed, they can say there was intent even if there wasn't based soley on that.

Really? And you know this for a fact? You know people who have filed to adjust while a K1 was pending and the adjustment was denied?

You already filed the K-1 and have a NOA1?

If so its not advisable to marry and try to AOS from VWP, with a pending K-1.

Most lawyers want money and don't really care about what happens to the people involved.

tsk tsk tsk

[Brother Hesekiel 2,236]

First, I do not want to advise on what to do, but I want to outline what we're dealing here with.

1) No, they do not have to prove that they did not intend to get married. Aside from the fact that a negative can't be proven, intend is not being made an issue of. More to the point, why would they have gone though the hassle of a K-1 petition, if they had intent to get married an file for AOS? Really, this is a non-issue.

2) The K-1 travels to the US, gets married, files for AOS. Sucks to begin with, as it involves AOS.

The VWP travels to the US, gets married, files for AOS. Sucks equally, because AOS is involved.

What would make sense, or would have made sense, is to get married, then to return and file for a CR-1. No AOS, no $1,070 in cost, no waiting for EAD or AP, or for a driver's license, or a SSN . . . free sailing from day one.

Well, at this point that would be crazy. If the O.P. can get this done in a timely manner, meaning to get their AOS out and accepted before the I-94W expires, it's probably a viable option.

So what would she "save?" At best one round tip ticket, but probably nothing, as she didn't intend to stay, meaning she would have to return to France to wrap things up anyway.

Decisions, decisions . . .