Visa Waiver Help

[nynexla 0]

Hello I am very new at all of this.

My wonderful fiance as of Christmas day and her amazing 5 year old daughter have come to stay with me from Australia since October 17th 2012.

But sadly on January 14th just under 2 weeks, her visa waiver is 90 days and they will be flying back to Australia

Is there anything I can do to have them stay in the country?

We were planning on marrying before she leaves.

Thank you for any feedback.

[Penguin_ie 5,984]

Check our Guide here: http://www.visajourney.com/content/i130guide2

[nynexla 0]

Thank you.

I was reading about intent to get married BEFORE she came to the US which wasn't the case.

We just decided while she was here.

So, in short, no she cant stay.

She needs to go back home in a week and we wait 5-8 months for a K-1 visa approval?

[hmh33 117]

What you just wrote doesn't make sense. You can marry, she can stay with you, she can file to adjust status via the above-mentioned guide, and everything will be ok. However, once the application is filed, she won't be able to leave the US for about 3 months (until approval of Advance Parole) otherwise the adjustment of status would be considered abandoned.

Edited January 4, 2013 by hmh33

[Darnell 8,478]

Thank you.

I was reading about intent to get married BEFORE she came to the US which wasn't the case.

We just decided while she was here.

So, in short, no she cant stay.

She needs to go back home in a week and we wait 5-8 months for a K-1 visa approval?

you've got the logic reversed, or your writing reversed, or something else reversed.

Take another stab at it?

[nynexla 0]

Thank you hmh33.

We just booked in to see an immigration lawyer on Monday. Fingers crossed

[Darnell 8,478]

actually, she qualifies.

Please reread the content of the link posted in post #2.

If you can't see it, come back on a PC and read it again.

[caly 48]

Sometimes immigration lawyers don't know anything.. many horror stories abound on the site. I'm not saying yours will be useless but since you have the weekend to study, might I suggest reading the guides and familiarizing yourself with the process before Monday?

Remember, nobody cares more about your application than YOURSELF!

Good luck!

[nynexla 0]

Hey this is the fiancé here,

I'm going to explain our situation properly as my partner hasn't had enough coffee this morning and is having a little trouble

finding the right words.

- I came here with my 5 year old daughter in October to stay with him for three months.

- We have been together everyday since I came here (not a relevant point)

- He proposed to me on Christmas day (The power had gone out in the area so he proposed to me under a working lamp post

while it was snowing. Also not relevant but was very sweet)

- My visa waiver ends in a little under 2 weeks, which I will then have to go home on the 14th January

- He doesn't want me to have to go home to Australia.

So the question is,

Do I go home and wait for a k1 fiancé visa to be approved?

Do we get married and then I go home and apply for a spousal visa? (which I think takes even longer than the fiancé visa)

-OR-

Is there a legitimate way for my daughter and I to stay in the country without any kind of penalties?

I think our question has already been answered but I just wanted to be clear on our situation. My understanding of the visa waiver

was that I could not change the status of this in any way and I would have to go home once the three months was over.

you've got the logic reversed, or your writing reversed, or something else reversed.

Take another stab at it?

[nynexla 0]

Sorry, didn't see the last two posts before I posted our situation again. I will reread the guide and see what else I can get from it. There's so much to read and it's quite mind boggling.

[mymarriagejourney 112]

Sorry, didn't see the last two posts before I posted our situation again. I will reread the guide and see what else I can get from it. There's so much to read and it's quite mind boggling.

You can file for Adjustment of Status and you enter a new period of legal stay here while the application is being processed. You CANNOT leave the US while the application is being processed. I suggest reading the link carefully and doing it yourself. It's not difficult; it's just tedious and a bit time consuming.

[hmh33 117]

So the question is,

Do I go home and wait for a k1 fiancé visa to be approved?

Do we get married and then I go home and apply for a spousal visa? (which I think takes even longer than the fiancé visa)

-OR-

Is there a legitimate way for my daughter and I to stay in the country without any kind of penalties?

#3, with the caveats already mentioned about there being a temporary period when you'll be stuck in the U.S.

The visa waiver program is restrictive and generally it isn't possible to change status or adjust status (two different things) from it... EXCEPT in a narrow subset of cases which fortunately includes yours (after marriage you will be the immediate relative of a US citizen).

Seeing the lawyer won't hurt. If I were you I would make it a one-time consultation (typically ~$100) rather than hiring them to take your case, simply to save the $2000+ that they would charge to do that. From what you've described, and assuming no complicating factors, it should be straightforward for you to do this yourself. Ask the lawyer what needs to be filed for your daughter, since that's an aspect that people on this forum are probably a little less familiar with. Even that shouldn't be too tricky, though.

Do you have any kind of criminal record? (even expunged, even an arrest without conviction)

[nynexla 0]

I don't have any sort of criminal record except maybe one speeding fine which was paid on time. I don't think that counts though.

SO i guess we are going to vegas to get married! haha

I just wanted to make sure we knew all the facts before getting married in case the fiancé visa was a better option.

#3, with the caveats already mentioned about there being a temporary period when you'll be stuck in the U.S.

The visa waiver program is restrictive and generally it isn't possible to change status or adjust status (two different things) from it... EXCEPT in a narrow subset of cases which fortunately includes yours (after marriage you will be the immediate relative of a US citizen).

Seeing the lawyer won't hurt. If I were you I would make it a one-time consultation (typically ~$100) rather than hiring them to take your case, simply to save the $2000+ that they would charge to do that. From what you've described, and assuming no complicating factors, it should be straightforward for you to do this yourself. Ask the lawyer what needs to be filed for your daughter, since that's an aspect that people on this forum are probably a little less familiar with. Even that shouldn't be too tricky, though.

Do you have any kind of criminal record? (even expunged, even an arrest without conviction)

[hmh33 117]

A local city hall wedding might be nicer than Vegas... San Francisco city hall was easy, fast, inexpensive but not at all tacky.

[caly 48]

In the past when AOSing on the VWP you were not allowed to appeal a denial and could be put in immediate deportation proceedings, is this still true today?

Just throwing it out there as this alone would have been a deal-breaker for my husband and I had we been in the same situation as you.

Edited January 4, 2013 by caly