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Visiting fiancee under VWP. Can we marry? Which visa would we pursue?

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Hi folks, my fiancee and I have been browsing this site for awhile for help, but we're currently looking at a possibility we hadn't previously considered. I'm from the UK, she lives in Montana, and I'm here visiting her under the VWP; I arrived in the US on September 20th through SLC. My original return flight was October 21st, but we changed if after I got here so I am now due to leave on December 14th. (We've extended my stay before when I visited, but always of course remaining under the time allowed by the VWP.) My VWP leaving date is 19th Dec.

We have been engaged since 2013, and are planning to submit a K-1 fiancee visa application after I fly out, but before the prices go up on December 23rd. We've already got the package pretty much ready to go, in fact, and my current visit was largely to meet the requirement to have met in the two years prior to filing, as the last time we met was in 2014. But is me returning and waiting necessary? I've seen other people say they've married and remained despite being here on the VWP, and that the main consideration in that regard is whether I came here with intention to marry. (I didn't.) We bounced the idea around a couple of weeks ago but figured we'd need an immigration lawyer to ensure it was done properly, but were we overly pessimistic?

So basically I'm asking for advice on a couple of points:

With the understanding that there's always some risk of being suspected of having entered under false pretenses, is marrying and me staying viable?

Would the procedure actually be much the same, i.e. filing for a K-1, marrying upon acceptance, filing for AOS, and so on? Or would we use a different visa? Or would it be a different method entirely?

Related to the above, is the cost the same either way? Would we end up paying more if I stayed? (Other factors like airfare aside, of course).

We would want to file ASAP of course, but is there any leeway? Is it okay if I'm here for a few days between my required departure date and them getting the package, or us receiving NOA1?

Thanks very much for your help and advice everyone! It's probably not going to prove to be achievable, but it'd be neat if I could stay so we didn't have to be apart for another span of time.

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You can marry and file for AOS.

Follow the guide:

http://www.visajourney.com/content/i130guide2

Don't worry about intent. Unless you lied to CBP, which I'm assuming you didn't do, it's not an issue.

Overstay will be forgiven, but you should file ASAP.

Edited by EM_Vandaveer

Entry on VWP to visit then-boyfriend 06/13/2011

Married 06/24/2011

Our first son was born 10/31/2012, our daughter was born 06/30/2014, our second son was born 06/20/2017

AOS Timeline

AOS package mailed 09/06/2011 (Chicago Lockbox)

AOS package signed for by R Mercado 09/07/2011

Priority date for I-485&I-130 09/08/2011

Biometrics done 10/03/2011

Interview letter received 11/18/2011

INTERVIEW DATE!!!! 12/20/2011

Approval e-mail 12/21/2011

Card production e-mail 12/27/2011

GREEN CARD ARRIVED 12/31/2011

Resident since 12/21/2011

ROC Timeline

ROC package mailed to VSC 11/22/2013

NOA1 date 11/26/2013

Biometrics date 12/26/2013

Transfer notice to CSC 03/14/2014

Change of address 03/27/2014

Card production ordered 04/30/2014

10-YEAR GREEN CARD ARRIVED 05/06/2014

N-400 Timeline

N-400 package mailed 09/30/2014

N-400 package delivered 10/01/2014

NOA1 date 10/20/2014

Biometrics date 11/14/2014

Early walk-in biometrics 11/12/2014

In-line for interview 11/23/2014

Interview letter 03/18/2015

Interview date 04/17/2015 ("Decision cannot yet be made.")

In-line for oath scheduling 05/04/2015

Oath ceremony letter dated 05/11/2015

Oath ceremony 06/02/2015

I am a United States citizen!

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Just bear in mind that you won't be able to leave without voiding your AoS application for at least 90 days (the rough time period it will take to obtain Advance Parole).


Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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~~Moved to AOS from Work, Student, & Tourist Visas, from K1 P&P - As the OP is looking at this option as it is available to them.~~


Spoiler

Met Playing Everquest in 2005
Engaged 9-15-2006
K-1 & 4 K-2'S
Filed 05-09-07
Interview 03-12-08
Visa received 04-21-08
Entry 05-06-08
Married 06-21-08
AOS X5
Filed 07-08-08
Cards Received01-22-09
Roc X5
Filed 10-17-10
Cards Received02-22-11
Citizenship
Filed 10-17-11
Interview 01-12-12
Oath 06-29-12

Citizenship for older 2 boys

Filed 03/08/2014

NOA/fee waiver 03/19/2014

Biometrics 04/15/14

Interview 05/29/14

In line for Oath 06/20/14

Oath 09/19/2014 We are all done! All USC no more USCIS

 

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You can follow the guides here, reasonably straightforward.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Consider the viability of the options first: Is everything settled back home? Are you employed? Do you have any responsibilities you're prepared to put off for a while?

If so, the VWP route you are thinking about may not be for you, as you cannot return home until paperwork enabling you to travel without issue comes through. That can take some time.

Your other options is to do the K1 as you had planned. You can still visit each other so long as you don't overstay your VWP. Again after the K1 is complete and you marry, you'll need to wait to work and travel until the next paperwork goes through and is approved.

Or you marry now, and return home without spoiling your VWP privileges by an overstay. File for a spousal visa. It takes a longer time, but once approved you will have all the paperwork you need to work and travel.

Anyway, any of these suggestions can be done without the need for a lawyer.


K-1 - AOS & ROC Timeline  - Immigration and the Health Exchange Price of Love in the UK Thinking of Returning to UK?

 

First met: 12/31/04 - Engaged: 9/24/09
Filed I-129F: 10/4/14 - Packet received: 10/7/14
NOA 1 email + ARN assigned: 10/10/14 (hard copy 10/17/14)
Touched on website (fixed?): 12/9/14 - Poked USCIS: 4/1/15
NOA 2 email: 5/4/15 (hard copy 5/11/15)
Sent to NVC: 5/8/15 - NVC received + #'s assigned: 5/15/15 (estimated)
NVC sent: 5/19/15 - London received/ready: 5/26/15
Packet 3: 5/28/15 - Medical: 6/16/15
Poked London 7/1/15 - Packet 4: 7/2/15
Interview: 7/30/15 - Approved!
AP + Issued 8/3/15 - Visa in hand (depot): 8/6/15
POE: 8/27/15

Wedding: 9/30/15

Filed I-485, I-131, I-765: 11/7/15

Packet received: 11/9/15

NOA 1 txt/email: 11/15/15 - NOA 1 hardcopy: 11/19/15

Bio: 12/9/15

EAD + AP approved: 1/25/16 - EAD received: 2/1/16

RFE for USCIS inability to read vax instructions: 5/21/16 (no e-notification & not sent from local office!)

RFE response sent: 6/7/16 - RFE response received 6/9/16

AOS approved/card in production: 6/13/16  

NOA 2 hardcopy + card sent 6/17/16

Green Card received: 6/18/16

USCIS 120 day reminder notice: 2/22/18

Filed I-751: 5/2/18 - Packet received: 5/4/18

NOA 1:  5/29/18 (12 mo) 8/13/18 (18 mo)  - Bio: 6/27/18

 

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No need to overstay.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Or you marry now, and return home without spoiling your VWP privileges by an overstay. File for a spousal visa. It takes a longer time, but once approved you will have all the paperwork you need to work and travel.

This is the safe choice. You can marry and try to AoS now, but if you come across a CO that has some kind of grudge against adjusting from tourist visa/VWP, then you may regret doing that.

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you can always use the vwp while your k1 is pending. looks good to cbp that you left within the vwp time frame and filed the k1 soon after or before if you can get all the documents in order.

could always file now to get the lower rate then when you get an rfe send in the rest of the stuff.

good luck

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This is the safe choice. You can marry and try to AoS now, but if you come across a CO that has some kind of grudge against adjusting from tourist visa/VWP, then you may regret doing that.

I presume you have seen someone having an issue, I have not. Link?


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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This is the safe choice. You can marry and try to AoS now, but if you come across a CO that has some kind of grudge against adjusting from tourist visa/VWP, then you may regret doing that.

Is there a reason for you saying this? This is a total non-issue.


Entry on VWP to visit then-boyfriend 06/13/2011

Married 06/24/2011

Our first son was born 10/31/2012, our daughter was born 06/30/2014, our second son was born 06/20/2017

AOS Timeline

AOS package mailed 09/06/2011 (Chicago Lockbox)

AOS package signed for by R Mercado 09/07/2011

Priority date for I-485&I-130 09/08/2011

Biometrics done 10/03/2011

Interview letter received 11/18/2011

INTERVIEW DATE!!!! 12/20/2011

Approval e-mail 12/21/2011

Card production e-mail 12/27/2011

GREEN CARD ARRIVED 12/31/2011

Resident since 12/21/2011

ROC Timeline

ROC package mailed to VSC 11/22/2013

NOA1 date 11/26/2013

Biometrics date 12/26/2013

Transfer notice to CSC 03/14/2014

Change of address 03/27/2014

Card production ordered 04/30/2014

10-YEAR GREEN CARD ARRIVED 05/06/2014

N-400 Timeline

N-400 package mailed 09/30/2014

N-400 package delivered 10/01/2014

NOA1 date 10/20/2014

Biometrics date 11/14/2014

Early walk-in biometrics 11/12/2014

In-line for interview 11/23/2014

Interview letter 03/18/2015

Interview date 04/17/2015 ("Decision cannot yet be made.")

In-line for oath scheduling 05/04/2015

Oath ceremony letter dated 05/11/2015

Oath ceremony 06/02/2015

I am a United States citizen!

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Seriously look into what is required to AOS before you make a decision. If you think you may have any reason to need or want to leave the US anytime in the next 6 months (building in a bit of a buffer, but justifiably so), this is likely not the best path for you. It's a lot more than one simple paper. You'll need a police report from every country you've lived in for 6 months or more, and your birth certificate, and I'm assuming you haven't traveled with those. Same for your vaccination records. You'll need them and also need a medical exam performed.. Is your fiancee able to be your financial sponsor? If not, do you have a co-sponsor? Those forms require documentation that can take a week or more to get together. So, you'd need to arrange all of this from the US.

Then, even if you get married tomorrow and get all of this documentation together in a week (which I think could be possible but not very likely), you're still looking at several months before you'll be able to leave and re-enter the US. They "owe" you a response to your work/travel permit within 90 days of the official received date. But for one, that response could be "no" (unlikely, but still possible). Two, if you've filled something out incorrectly or forgotten to submit a required piece of evidence (like vaccinations, police reports etc), you'll get an RFE (request for evidence) which, depending on the nature of the RFE either "pauses" your 90 days, or totally resets it. And three: 90 days is a lie. They'll get to you whenever they darn well please. Ours took 104 (so, two weeks longer) from their official "received date". My friends just applied for AOS and there was a three week lag between actually sending it, and their official "received date", so their 90 day clock didn't start ticking until almost a month into the process. So if *they* don't get a reply until day 104, their total time would be 4 months, one week. Sure, there are people who have gotten work/travel permits in 2 months or less. Good on them. But that's not a guarantee and not the way things seem to be going now. So add in however long it would take to get married and file (a week to get this kind of paperwork from abroad would be a miracle and either way you'd need to wait a week or so for the marriage certificate to be certified) and you could start to approach 6 months.

If you're able to just walk out of your life like that, then staying and adjusting makes sense .If not, and depending on your circumstances, (are you able to travel back and forth easily or not), I could see a case for either K1 or CR1. K1 you can submit the initial paperwork basically tomorrow. That's all stuff from the US citizen and is very simple and straightforward (the harder/ more involved stuff comes before the interview). Not sure about CR1 but at a minimum you couldn't get the ball rolling tomorrow as you'd need to get married and wait for the marriage certificate to be ready. So there's that.

Edited by CatherineA

Marriage/ AOS Timeline:

23 Dec 2015: Legal marriage

23 Jan 2016: Wedding!

23 Jan 2016: "Blizzard of the Century", wedding canceled/rescheduled (thank goodness we were legally married first or we'd have had a big problem!) :sleepy:

24 Jan 2016: Small "civil ceremony" with friends and family who were snowed in with us. December was a bit of a secret and people had traveled internationally and knew we *had* to get married that weekend, and our December legal marriage was nothing but signing a piece of paper at our priest's kitchen table, without any sort of vows etc so this was actually a very special (if not legally significant) day. (L)

16 Apr 2016: Filed for AOS and EAD/AP (We delayed a bit-- no big rush, enjoying the USCIS break)

23 Apr 2016: Wedding! Finally! :luv:

27 Apr 2016: Electronic NOA1 for all 3 :dancing:
29 Apr 2016: NOA1 Hardcopy for all 3
29 Jul 2016: Online service request for late EAD (Day 104)
29 Jul 2016: EAD/AP Approved ~3 hours after online service request
04 Aug 2016: RFE for Green Card (requested medicals/ vaccination record. They already have it). :ranting:
05 Aug 2016: EAD/AP Combo Card arrived! (Day 111)
08 Aug 2016: Congressional constituent request to get guidance on the RFE. Hoping they see they have the form and approve!

K-1 Visa Timeline:

PLEASE NOTE. This timeline was during the period of time when TSC was working on I-129fs and had a huge backlog. The average processing time was 210+ days. This is in no way predictive of your own timeline if you filed during or after April 2015, unless CSC develops a backlog. A backlog is anything above the 5-month goal time listed on USCIS's site

14 Feb 2015: Mailed I-129f to Dallas Lockbox. (L) (Most expensive Valentine's card I've ever sent!)

17 Feb 2015: NOA1 "Received Date"
19 Feb 2015: NOA1 Notice Date
08 Aug 2015: NOA2 email! :luv: (173 days from NOA1)

17 Aug 2015: Sent to NVC

?? Aug 2015: Arrived at NVC

25 Aug 2015: NVC Case # Assigned

31 Aug 2015: Left NVC for Consulate in San Jose

09 Sep 2015: Consulate received :dancing: (32 days from NOA2)

11 Sep 2015: Packet 3 emailed from embassy to me, the petitioner (34 days from NOA2).

18 Sep 2015: Medicals complete

21 Sep 2015: Packet 3 complete, my boss puts a temporary moratorium on all time off due to work emergency :clock:

02 Oct 2015: Work emergency clears up, interview scheduled (soonest available was 5 business days away--Columbus Day was in there)

13 Oct 2015: Interview

13 Oct 2015: VISA APPROVED :thumbs: (236 days from NOA1)

19 Oct 2015: Visa-in-hand

24 Oct 2015: POE !

15 Dec 2015: Fiance's mother's B-2 visa interview: APPROVED! So happy she will be at the wedding! :thumbs:

!

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You forgot to mention Emergency AP.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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You forgot to mention Emergency AP.

True, I did forget-- my mind wasn't on though. I'm thinking more pure logistics of thinking you're going home after Christmas and then just....not which even for someone living with family, no car, no job etc is quite the undertaking.

But yes, OP if you do stay and AOS, you can get permission to travel before your work/travel permit for an emergency. You have to have already sent in your petition, and I believe already have gotten your official "received date".


Marriage/ AOS Timeline:

23 Dec 2015: Legal marriage

23 Jan 2016: Wedding!

23 Jan 2016: "Blizzard of the Century", wedding canceled/rescheduled (thank goodness we were legally married first or we'd have had a big problem!) :sleepy:

24 Jan 2016: Small "civil ceremony" with friends and family who were snowed in with us. December was a bit of a secret and people had traveled internationally and knew we *had* to get married that weekend, and our December legal marriage was nothing but signing a piece of paper at our priest's kitchen table, without any sort of vows etc so this was actually a very special (if not legally significant) day. (L)

16 Apr 2016: Filed for AOS and EAD/AP (We delayed a bit-- no big rush, enjoying the USCIS break)

23 Apr 2016: Wedding! Finally! :luv:

27 Apr 2016: Electronic NOA1 for all 3 :dancing:
29 Apr 2016: NOA1 Hardcopy for all 3
29 Jul 2016: Online service request for late EAD (Day 104)
29 Jul 2016: EAD/AP Approved ~3 hours after online service request
04 Aug 2016: RFE for Green Card (requested medicals/ vaccination record. They already have it). :ranting:
05 Aug 2016: EAD/AP Combo Card arrived! (Day 111)
08 Aug 2016: Congressional constituent request to get guidance on the RFE. Hoping they see they have the form and approve!

K-1 Visa Timeline:

PLEASE NOTE. This timeline was during the period of time when TSC was working on I-129fs and had a huge backlog. The average processing time was 210+ days. This is in no way predictive of your own timeline if you filed during or after April 2015, unless CSC develops a backlog. A backlog is anything above the 5-month goal time listed on USCIS's site

14 Feb 2015: Mailed I-129f to Dallas Lockbox. (L) (Most expensive Valentine's card I've ever sent!)

17 Feb 2015: NOA1 "Received Date"
19 Feb 2015: NOA1 Notice Date
08 Aug 2015: NOA2 email! :luv: (173 days from NOA1)

17 Aug 2015: Sent to NVC

?? Aug 2015: Arrived at NVC

25 Aug 2015: NVC Case # Assigned

31 Aug 2015: Left NVC for Consulate in San Jose

09 Sep 2015: Consulate received :dancing: (32 days from NOA2)

11 Sep 2015: Packet 3 emailed from embassy to me, the petitioner (34 days from NOA2).

18 Sep 2015: Medicals complete

21 Sep 2015: Packet 3 complete, my boss puts a temporary moratorium on all time off due to work emergency :clock:

02 Oct 2015: Work emergency clears up, interview scheduled (soonest available was 5 business days away--Columbus Day was in there)

13 Oct 2015: Interview

13 Oct 2015: VISA APPROVED :thumbs: (236 days from NOA1)

19 Oct 2015: Visa-in-hand

24 Oct 2015: POE !

15 Dec 2015: Fiance's mother's B-2 visa interview: APPROVED! So happy she will be at the wedding! :thumbs:

!

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