Abandon K1, Marry on ESTA and adjust status?

[Danny & Karen 0]

I am from the UK and currently in the US on an ESTA (expires 7th December). My K1 petition was approved and sent to the US embassy in London, where I was hoping to proceed with the interview upon my return. I have just found out that I have a criminal record (Reprimand for Battery) dating back to 2007. This isn’t the only concern, it appears that I lied on my ESTA application when asked if I have a criminal record. This is deemed as misrepresentation. I honestly forgot about the offence as it was so long ago and I was only 15. 
 

I spoke to an immigration attorney yesterday and he advised that there’s a very high chance that I was be denied a visa and would ultimately need a waiver. 

 

The attorney stated that I am better off abandoning the K1, getting married and adjusting status before I have to return to the UK (7th December). That way I won’t be apart from my fiancé etc.

 

Questions: Has anyone else been through something similar? 

Is the better route - abandoning the K1 and filing adjustment of status on ESTA? 

Can this be done without legal help? 
 

Thanks

[designguy 1,179]

What is the US equivalent charge? Is it a misdemeanor or felony?  If it could be considered material then you are still in trouble when you go through the Adjustment of Status process. "I forgot about a criminal battery charge" is not likely to fly.

[Russ&Caro 1,548]

Your attorney's advice sounds pretty solid but you have to factor in life conditions. You may not be able to work for a long duration or multiple long durations while your immigration petition is all sorted out. You might be granted an Employment Authorization card intially while your application is pending but then if the application is rejected, triggering the need for a waiver, you might have another long time not being able to work. Make sure your US spouse knows everything that he or she is getting into, i.e. supporting you a lot.

 

Georwian and others from this community will likely weigh in with more precise advise. But again, on first blush, the attorney's advice doesn't sound bad.

[SalishSea 16,746]

47 minutes ago, Danny & Karen said:

I am from the UK and currently in the US on an ESTA (expires 7th December). My K1 petition was approved and sent to the US embassy in London, where I was hoping to proceed with the interview upon my return. I have just found out that I have a criminal record (Reprimand for Battery) dating back to 2007. This isn’t the only concern, it appears that I lied on my ESTA application when asked if I have a criminal record. This is deemed as misrepresentation. I honestly forgot about the offence as it was so long ago and I was only 15. 
 

I spoke to an immigration attorney yesterday and he advised that there’s a very high chance that I was be denied a visa and would ultimately need a waiver. 

 

The attorney stated that I am better off abandoning the K1, getting married and adjusting status before I have to return to the UK (7th December). That way I won’t be apart from my fiancé etc.

 

Questions: Has anyone else been through something similar? 

Is the better route - abandoning the K1 and filing adjustment of status on ESTA? 

Can this be done without legal help? 
 

Thanks

Why do you think that material misrepresentation for a visa/ESTA would not be an issue for the AOS/ROC/citizenship path?

[Nitas_man 3,100]

Your lawyer told you there is a waiver for misrepresentation on an ESTA application?

Is that before or after you serve out the 10-yr ban?  Or somehow your spouse will be able to prove irreversible harm if you don’t return home?

Advice is to go home, straighten this out, and do it right.  Last thing you need is a non-appealable ruling that you were never admissible in the first place followed by removal proceedings and a run-up of overstay.

Edited November 13, 2019 by Nitas_man

[Wuozopo 4,285]

Anything that keeps you from getting a visa can also keep you from adjusting status. A

2 hours ago, Danny & Karen said:

Questions: Has anyone else been through something similar? 

Is the better route - abandoning the K1 and filing adjustment of status on ESTA? 

Can this be done without legal help? 
 

Yes people have done that. The dodgy part for you is trying to adjust status from a visa waiver entry that you fear was misrepresented. So if that's the case, you are here fraudulently. When you adjust from Visa Waiver/ESTA, you aren't eligible to appeal if you are denied.  Just go to your interview and keep your mouth shut and see if they even bring it up. ESTA is not really their bailiwick. They are in the visa business. Adjusting from a Visa is going to go much better than from Visa Waiver entry in my opinion.

Edited November 13, 2019 by Wuozopo

[Danny & Karen 0]

14 minutes ago, Wuozopo said:

Anything that keeps you from getting a visa can also keep you from adjusting status. A

Yes people have done that. The dodgy part for you is trying to adjust status from a visa waiver entry that you fear was misrepresented. So if that's the case, you are here fraudulently. When you adjust from Visa Waiver/ESTA, you aren't eligible to appeal if you are denied.  Just go to your interview and keep your mouth shut and see if they even bring it up. ESTA is not really their bailiwick. They are in the visa business. Adjusting from a Visa is going to go much better than from Visa Waiver entry in my opinion.

Even though it would be an even bigger risk going home and attending the interview to be denied and apart from my fiancé for the duration of a waiver, if ones available for my criminal record? That’s presuming they bring up the ESTA. I read that California is part of the Ninth Circle, which means one could appeal if denied? The attorney stated that at least we would be with each other during the wait and legal to work once the authorisation comes through, as opposed to waiting for the Waiver appeal, if ones even available and being apart from each other. 

[Nitas_man 3,100]

1 hour ago, Danny & Karen said:

Even though it would be an even bigger risk going home and attending the interview to be denied and apart from my fiancé for the duration of a waiver, if ones available for my criminal record? That’s presuming they bring up the ESTA. I read that California is part of the Ninth Circle, which means one could appeal if denied? The attorney stated that at least we would be with each other during the wait and legal to work once the authorisation comes through, as opposed to waiting for the Waiver appeal, if ones even available and being apart from each other

 

Marriage to USC will not overcome a material misrepresentation that occurred prior to US entry

Worse advising you to marry to specifically skirt the immigration laws knowing the penalty for correctly following the rules could get your lawyer disbarred.  Advising to do so on this site is a TOS violation.

 

 

Edited November 13, 2019 by Nitas_man

[debbiedoo 2,339]

if you were 15 when it happened, it MAY not come up on a background check. I truly am not sure.

 

You have to provide criminal history for AOS, so it would come up there, too, if it is there.

 

If you cancel the k1 and choose to adjust directly (which is what we did), you can provide the info on the i130. at that point, it likely wouldnt be an issue. Do you have a copy of your criminal report and does it show the offense? You WILL be asked about any background that shows. My husband has a DUI from 2016 and an assault charge from 20 some years ago in a bar fight (that was expunged but still shows on the report) and we were asked about both. Had no issue getting his greencard approved, but we were also honest about it from the get-go.

Edited November 13, 2019 by debbiedoo

[RamonGomez 259]

11 hours ago, Nitas_man said:

 

Marriage to USC will not overcome a material misrepresentation that occurred prior to US entry

Worse advising you to marry to specifically skirt the immigration laws knowing the penalty for correctly following the rules could get your lawyer disbarred.  Advising to do so on this site is a TOS violation.

 

 

 

What laws would they be skirting? There's nothing illegal about adjusting from ESTA, and I think from the post it's pretty clear they had no intention of adjusting until they spoke to the attorney.

 

Years ago I paid a couple hundred bucks to speak to the top immigration attorney in our (very large) US city before we married. He said that if there is any problem with a case, it is far better to be inside the US (with your loved one) trying to resolve things with USCIS, rather than dealing with the embassy, stuck abroad. There is a lot more recourse and room for appeal if you are already here.

 

You will have to obviously admit to this (although I don't think an ESTA adjustment requires a police report), but there's probably a decent chance they'll let it slide if you are upfront and honest, and of course if they believe you.

[Jenny17655 283]

I thought offences committed as a minor didn't count.  Maybe I'm wrong.

[geowrian 22,335]

Doing AOS is a legal option here, although the misrepresentation (if deemed material) is not something that goes away. A waiver may be necessary. It is also because of stuff like this that others in the future may not have such luxuries. 

 

21 minutes ago, Jenny17655 said:

I thought offences committed as a minor didn't count.  Maybe I'm wrong.

They do, although they may or may not fall under a petty offense exceptio for a visa (but not an ESTA AFAIK). Battery might not fall under that.

[Nat&Amy 623]

15 hours ago, Danny & Karen said:

The attorney stated that at least we would be with each other during the wait and legal to work once the authorisation comes through,

Hopefully your attorney has kept up with changes in processing times. These days, it might take anywhere from 4 to 8 months to get an EAD after you file your AoS, and the fact you will not be able to do much (no work, no travel, in some states no driving and many other ‘no’s) for that much time is not something to be taken lightly. Many relationships suffer in that period and it’s not only financially.

 

Of course being with each other makes things better but do a quick search in this website and you will see that when it comes to immigration, even the strongest relationships might go downhill due to all the stress.

 

Prepare accordingly.

[Nat&Amy 623]

A question. Let’s assume it all goes well and you make it to the AoS interview. How exactly are you planning to respond when the IO asks you, “I see here you had an approved K1 petition but chose not to pursue it, adjusting status during a visit instead. Why?”

[LilyJ 1,258]

You cannot enter the US on an ESTA or tourist visa with the intent to adjust status. That is fraud.