Need K-1 Advice...Changing Scenario...Unsure of Next Steps

[pepino37 0]

Hello! I a new member but have browsed a bit in the past! I need some advice on my K-1 situation.

General Situation:

Engaged to a wonderful woman from Switzerland. I live in Hawaii. We had originally decided that we would get married in the US and that she would immigrate here. I submitted the K-1 Petition in July. I received the NOA 1 so it is in process. Upon receiving the Visa, we would get married right away and petition for the work permit and permanent resident status.

However, my employment situation has changed for the worse - found out that I would be losing my job next July due to federal budget cuts. So after a recent month-long trip to Switzerland and many discussions, we changed our mind and decided that I would immigrate to Switzerland instead.

So my immediate decision to make is do I CANCEL the K-1 Visa process or not? Not sure if that is still the proper path given that we would still like to get married in the US next Fall? Or do we cancel and get married on a tourist visa? What is the most proper and legal route?

In this new scenario this is our ideal process:

1) she comes to visit in November and March (with proper documentation of desire to return to Switzerland)

2) she obtains a special 6-month tourist visa for July - December 2012 (she has a cush federal job that is willing to give her six months of leave given her situation and if she decides to stay in Switzerland...they obviously like her very much

3) we get married in the Fall of 2012 sometime in Hawaii

4) We file the necessary petitions to get me into Switzerland as her husband

5) she returns to Switzerland in December and I follow in about March.

Does all this sound possible and legal? What is the proper path? Any advice would be greatly appreciated.

[Lainie B 465]

She doesn't need a K-1 if she is not intending to migrate to the US. As long as she has plenty of proof that she will be returning to Switzerland after the wedding, she should be OK, but she should be up-front about the plans at the POE. I would definitely cancel the 1-129f BEFORE obtaining the tourist visa. Otherwise it might look suspicious. Hopefully there are others out there who have done the same thing and can offer advice.

[realizment 18]

It might be difficult for her to obtain a tourist visa even after the petition is withdrawn, but if you accompanied her to the embassy and prove you have emigrated there, then maybe you have a chance. Also with the withdrawal of the petition i would send a letter stating you have decided to go over there instead.

[Winning23 25]

I would agree to everything in your plan.

Just note she can come to the USA without a visa for 3 months as Swiss national. Maybe you can arrange for marriage within that timeframe and avoid special tourist visa.

[at long last 58]

Hello! I a new member but have browsed a bit in the past! I need some advice on my K-1 situation.

General Situation:

Engaged to a wonderful woman from Switzerland. I live in Hawaii. We had originally decided that we would get married in the US and that she would immigrate here. I submitted the K-1 Petition in July. I received the NOA 1 so it is in process. Upon receiving the Visa, we would get married right away and petition for the work permit and permanent resident status.

However, my employment situation has changed for the worse - found out that I would be losing my job next July due to federal budget cuts. So after a recent month-long trip to Switzerland and many discussions, we changed our mind and decided that I would immigrate to Switzerland instead.

So my immediate decision to make is do I CANCEL the K-1 Visa process or not? Not sure if that is still the proper path given that we would still like to get married in the US next Fall? Or do we cancel and get married on a tourist visa? What is the most proper and legal route?

In this new scenario this is our ideal process:

1) she comes to visit in November and March (with proper documentation of desire to return to Switzerland)

2) she obtains a special 6-month tourist visa for July - December 2012 (she has a cush federal job that is willing to give her six months of leave given her situation and if she decides to stay in Switzerland...they obviously like her very much

3) we get married in the Fall of 2012 sometime in Hawaii

4) We file the necessary petitions to get me into Switzerland as her husband

5) she returns to Switzerland in December and I follow in about March.

Does all this sound possible and legal? What is the proper path? Any advice would be greatly appreciated.

food for thought... You still are an american citizen, what happens if plans change again and the two of you want to live in the USA?. I suggest that as you are still working that you complete the process, then if your plans change again in the future then wouldn't you be one step ahead? She would still have to have a visa for USA.. just another thought.

Terri

[pepino37 0]

She doesn't need a K-1 if she is not intending to migrate to the US. As long as she has plenty of proof that she will be returning to Switzerland after the wedding, she should be OK, but she should be up-front about the plans at the POE. I would definitely cancel the 1-129f BEFORE obtaining the tourist visa. Otherwise it might look suspicious. Hopefully there are others out there who have done the same thing and can offer advice.

Hi! Thanks for the response! Are you suggesting that I should cancel the 129F before she attempts to come for a visit in Nov / Dec or make sure we cancel it before we try to obtain a special 6 month tourist visa for July. the visits in Nov / Dec and March would just be for about three weeks or so with regular entry as a tourist. As suggested by another member, there may be some merit to keeping the process going a bit in case we decide to change plans again in the next 6 months or so.

[pepino37 0]

I would agree to everything in your plan.

Just note she can come to the USA without a visa for 3 months as Swiss national. Maybe you can arrange for marriage within that timeframe and avoid special tourist visa.

Hi! Thanks for the response! The six month tourist Visa is only a factor because we want to take advantage of this very generous offer from her employer of 6-month leave. Do you think it will be difficult for her to obtain this Visa under the circumstances?

[Lainie B 465]

Hmm, she shouldn't have a problem coming in under the VWP in November with a pending fiance petition (I did it myself, and plenty of others have done so).

After that the problem you will have is that you should receive the NOA2 very soon, and then the petition will go to the US embassy in Switzerland, and when that happens she will only have four months from the date on the NOA2 to receive the actual K-1 visa. That could happen before March next year. It will most certainly happen before July next year. Embassies can extend the amount of time it takes before you have to get the visa issued, but I think that is usually if they are taking a long time to give interview dates or process the application, not because you are working out whether you still want the K-1.

If you are still uncertain about your plans at this stage, you could wait a bit longer until you are sure, since as another poster pointed out she would be ready to apply for the K-1 if you decided she should migrate to the US after all. However I think you will have to make a decision fairly soon, before she applies for the K-1 visa.

For the March visit, she may already have the K-1 in her passport by then. I doubt she would be allowed into the US under the VWP if she has a K-1 in her passport (someone correct me if I'm wrong on that). Plenty of people have traveled to the US with a fiance petition underway, both under a VWP and a tourist visa (depending on their country). However I haven't heard of anyone who has traveled under the VWP (or a tourist visa) with an actual K-1 visa in their passport as well.

Applying for a K-1 is a lot more complicated and expensive than applying for a tourist visa. If you are thinking of using the K-1 INSTEAD of the tourist visa, for the 6-month visit in July, just in case you change your mind and decide to stay in the US, I would think carefully about that because of the extra expense and other complications. Also by July the K-1 may have expired already (it will only be valid for 6 months after it is issued). In that case she would probably need to get the 6-month tourist visa anyway. That could be difficult with an expired, unused K-1 visa. I suggest you look into K-1 processing times for the US embassy in Switzerland.

There should be no problem getting married in the US under the VWP or a tourist visa, as long as she doesn't intend to apply to stay afterwards, and has proof of ties in her home country.

[pepino37 0]

Hmm, she shouldn't have a problem coming in under the VWP in November with a pending fiance petition (I did it myself, and plenty of others have done so).

After that the problem you will have is that you should receive the NOA2 very soon, and then the petition will go to the US embassy in Switzerland, and when that happens she will only have four months from the date on the NOA2 to receive the actual K-1 visa. That could happen before March next year. It will most certainly happen before July next year. Embassies can extend the amount of time it takes before you have to get the visa issued, but I think that is usually if they are taking a long time to give interview dates or process the application, not because you are working out whether you still want the K-1.

If you are still uncertain about your plans at this stage, you could wait a bit longer until you are sure, since as another poster pointed out she would be ready to apply for the K-1 if you decided she should migrate to the US after all. However I think you will have to make a decision fairly soon, before she applies for the K-1 visa.

For the March visit, she may already have the K-1 in her passport by then. I doubt she would be allowed into the US under the VWP if she has a K-1 in her passport (someone correct me if I'm wrong on that). Plenty of people have traveled to the US with a fiance petition underway, both under a VWP and a tourist visa (depending on their country). However I haven't heard of anyone who has traveled under the VWP (or a tourist visa) with an actual K-1 visa in their passport as well.

Applying for a K-1 is a lot more complicated and expensive than applying for a tourist visa. If you are thinking of using the K-1 INSTEAD of the tourist visa, for the 6-month visit in July, just in case you change your mind and decide to stay in the US, I would think carefully about that because of the extra expense and other complications. Also by July the K-1 may have expired already (it will only be valid for 6 months after it is issued). In that case she would probably need to get the 6-month tourist visa anyway. That could be difficult with an expired, unused K-1 visa. I suggest you look into K-1 processing times for the US embassy in Switzerland.

There should be no problem getting married in the US under the VWP or a tourist visa, as long as she doesn't intend to apply to stay afterwards, and has proof of ties in her home country.

Hello again! Your comments and thoughts are very helpful and informative! Thanks for pointing out the timing issues that may complicate the March visit. I really had not thought of that and did not realize that you only had 4 months from the NOA2 to receive the K-1. The processing time seems to be about 8 months. A Swiss friend of hers just went through the process to move to LA and it took that long from start to finish. We were assuming 5 months for the NOA2 (CA Service Center) so about December 15th. Four months after would put the K-1 deadline at April 15th.

But your last paragraph really goes to the heart of my questions / concerns. Is it possible / legal / and more flexible given my situation to "use the K-1 INSTEAD of the tourist visa, for the 6-month visit in July, just in case you change your mind and decide to stay in the US?"

So let's say

1) we receive the K1 around middle of March and we had either pushed forward or forgone our plans for the March visit so that is not an issue

2) she comes in on July 1 which would be within the 6 month window.

3) we get married in the middle of Sept within the 3 month window

So after that is it possible for her to stay in country at that point for another 3 months and during that time we do not apply for the legal permanent residence, informed the USCIS that plans had changed and I would be moving there and we submit the proper paperwork to get me into Switzerland as her husband? Seems like that might be frowned upon. Once USCIS got notification that plans had changed, would they ask her to leave the country immediately?

Or were you assuming that we would go through with the legal permanent residency petition and maybe Advance Parole so she could leave the country?

Thanks again for your advice....very helpful!

[Lainie B 465]

That might work as long as you are mindful of those deadlines, and she doesn't try to come out in March on the VWP if she has a K-1 by then. However it seems to me like it might be risky. Having just been through it myself, I don't know why someone would choose to go through the K-1 application process if they are not intending to migrate, unless you are really unsure at the moment, and want to keep the option of migrating to the US open. If you are still unsure, it might be worth it to go through with the K-1 just in case. However keep in mind that she might be seen to be "lying" at the interview and also at the POE if she enters on a K-1 and doesn't intend to stay (just like someone entering on a VWP or tourist visa but actually planning to get married and apply for AOS). It probably won't be an issue, but you never know how it might be seen by the USCIS, especially for future visa applications. Also she can only stay on a K-1 for 90 days, I know you will be getting married which will allow her to stay longer than that but you will need to let USCIS know that you are married. Most people do this by applying for AOS (and also EAD and AP). Technically I think she would be allowed to stay longer once married even without filing AOS/EAD/AP, but I think you would still need to let USCIS know the marriage has taken place, otherwise she might be seen to be an overstayer. I imagine that even if you and she decide to go to Switzerland that she will want to come back to the US in the future, either as a visitor or to live, and she would need to be very careful that she does not get any black marks against her name so as not to cause visa problems in the future. I think other people have entered, got married, and then waited a while to apply for AOS, as technically they have fulfilled the K-1 requirement, but I would be careful here if you don't ever intend to file. Were you thinking of applying for AOS/EAD/AP after marriage, just in case you decide to remain in the US? If so then that should be no problem.

I would be interested to hear if anyone else has done the same thing, and if they have had any issues.

Also if you haven't already, check the immigration timelines for the Swiss embassy by filtering for Switzerland - this will give you a good idea of how long it takes from the NOA2 to the interview and visa in Switzerland.

[Lainie B 465]

I just reread your second last paragraph. I think that could be very, very risky to arrive on a K-1, get married, and tell USCIS that you got married but will not be going through the AOS, but then stay another three months anyway. I would think that they would need her to leave immediately, and any overstay could affect future visa applications and even the VWP applications.