how can he stay?

[annak 0]

Yes, if coming to visit, and asked the purpose, I'd give a more generic answer than, "to visit my girlfriend and our new baby." That's likely to get him sent packing without entering the US. "Visiting friends and family" is generic AND truthful.

An important point is that if he's quit his job and is living with relatives, he won't be able to show ties to home if asked, so there is a real risk, he won't be allowed entry as a tourist at all.

so should i not start the fiance visa application til he's here?

and if he keeps apt. what does proof of apt look like ? a letter from landlord?

what are other ties to home other than job and what exactly do they look like?

[LaL 418]

Ties are what keep a sustainable life back "home" ie: spain. Things like a job, university, apartment/home, etc.

[desert_fox 32]

Should he get into the US, talk to an experienced immigration attorney before making any final decisions. People adjust status every day coming here on the VWP, but you need some assurance from someone who knows the process.

Even his admissibility to the US may be iffy. He will depend entirely on what immigration asks, and how he responds, but you cannot lie as they may know the correct answer already.

Do not pay for his airline ticket as immigration already knows how the ticket was paid for.

Really - you need to step back and think about what you are suggesting here. VisaJourney does not condone, nor support visa fraud, and this is exactly what you are advocating. I will repeat my previous statement : the law does not allow for planned entry on VWP/B2 to the US with intent to immigrate.

show me!!!

As is said earlier, I would not recomend it, but the LAW allows it, w/o talking about intent. The USCIS does not even use that 30/60/90 day rule, as does the DOS.

I also recommended that they talk to a knowledgeable immigration attorney, as they CANNOT advise clients to take illegal actions.

[LaL 418]

Should he get into the US, talk to an experienced immigration attorney before making any final decisions. People adjust status every day coming here on the VWP, but you need some assurance from someone who knows the process.

Even his admissibility to the US may be iffy. He will depend entirely on what immigration asks, and how he responds, but you cannot lie as they may know the correct answer already.

Do not pay for his airline ticket as immigration already knows how the ticket was paid for.

Really - you need to step back and think about what you are suggesting here. VisaJourney does not condone, nor support visa fraud, and this is exactly what you are advocating. I will repeat my previous statement : the law does not allow for planned entry on VWP/B2 to the US with intent to immigrate.

show me!!!

As is said earlier, I would not recomend it, but the LAW allows it, w/o talking about intent. The USCIS does not even use that 30/60/90 day rule, as does the DOS.

I also recommended that they talk to a knowledgeable immigration attorney, as they CANNOT advise clients to take illegal actions.

What exactly do you want to see? The VWP and B2 are tourist visas and are not dual intent. They can be adjusted from in certain circumstances. One of which that negates this adjustment is the intent to immigrate. I really do not know why you are so hell bent on advocating an illegal action.

Edited July 30, 2008 by LaL

[Chica Yeyé 41]

Both pushbrk and YuandDan are very knowledgeable in this --- I suggest you follow their advise. Consult with an immigration attorney and do things by the book.

Trying to find loopholes in the law (and I am not saying you are doing this) will potentially come and bite you in the youknowwhat. This is your life sweetie, don't risk it.

Buena suerte!

[lili&kai 0]

His problem, should he decide to stay, is that he will be trapped here for many months, unable to leave the country, can work, and basically having issues to deal with in Spain and being unable to return without making himself inadmissible and possibily needing a waiver to enter a second time.

staying here is not a problem. he's willing to stay and i'm willing to work. but will there be paper work that needs to happen in spain that will then force him to leave and not be able to come back for a long time? longer than say waiting for the fiancee visa?

hi,

my fiancé is american and I'm french. we are curently processing a K1 visa. we've been visiting each other this last year and I've never had problems entering the US. Last time I went we were already in the process of getting the K1 (between NOA1 and NO2) and it was absolutely not an issue. I don't lie on who I am coming to visit. the first time I said I was coming to visit "my friend" and ended up explaining our whole story so now I just say it straight with a big smile, showing my return ticket.

I am ready to move to the US (stoped my job) in september but I know the K1 won't be ready by then. So I'm just gonna continue making return trips, following up the process on uscis website and with the embassy once it's sent there.

my advise is not to take the risk to enter the US with the intention to get married. first it means u will have to prove u didn't mean to fraud (...) and second it means being kind of stuck in the US during the process.... mmm.. no thanks

take it that way: you start the K1, he comes to visit u, then he goes back to spain to process with the embassy (should take about one month: the embassy contacts him and ask him to give them back a whole bunch of documents, he does, then gets a medical apointement and an interview: it is accepted) and then he goes back to u with the K1 ! (if after 3 month processing your case isn't at the embassy yet - kind of likely - he will indeed needs to leave the US, but he can come back straight after I reckon..). well.. that's my plan if the K1 takes long. I stopped my work to go to the US so now I can only wait and take the extra long vacation I've never had!! that is actually pretty cool

I wish you good luck with the whole process, I'm sure it will be fine !!

ps: if u decide to get married directly in the US than the immigration won't require him to go process stuff back in spain. that wouldn't make sence since he is technically not supposed to leave the US! (he actually can but he will need an autorization first).

[KimandRuss 0]

The problem does not arrive at just getting over the border... or even getting married. The real problem awaits at adjustment. If it is proven that he entered with the intent to immigrate (seems an obvious conclusion in this circumstance) he will face a ban. To advocate that is not only against TOS here at VJ it's unethical. I wouldn't want to be the one responsible for putting another couple in that position. I think we've all learned here that lawyers, even immigration ones, aren't always the best source of good and true information. Even if a lawyer says to them.. 'sure, just stay and adjust'.... he's putting them at risk.

annak... no, do not wait until he arrives to file the K1.. get on it right away so that your wait is shortned. You will need a (4 page) G325 signed by him, passport photo... as well as an original letter of intent. Read this... go down the checklist. The example forms will help you to fill the forms out and we are all here for any additional questions.

[KimandRuss 0]

On the idea of entry whilst awaiting a K1... it's the same as entering at any other time really except that you may show more intent. If you are spending more time in the US than in your own Country is when it becomes a problem. Have a look at our timeline if you don't believe me. It has everything to do with the POE officer. Some get in with no problems.... some do not.

[desert_fox 32]

Here is the problem...its discretionary, and can be subject to review....

My advice....dont do it!!!, but talk to a lawyer.

-----------------------------------

Denials

The second thing to understand about AOS is that it is discretionary, not mandatory. It is possible for a person who is technically eligible for immigrant status to nonetheless be denied adjustment of status in the exercise of discretion. The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process.

For example, if a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.

If the application occurs between 30 and 60 days after entry, no presumption is made, but there is a strong suspicion that the person may have acted in bad faith. The case will be scrutinized carefully. If the application occurs more than 60 days after entry, the presumption is that the applicant acted in good faith. Both the USCIS and the State Department reserve the right to re-examine such cases, however, if there is any additional evidence of wrongdoing. If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can and will deny such adjustment applications in the exercise of discretion. Discretionary AOS refusals are not subject to administrative review. While federal court review is theoretically possible, few judges are willing to attempt to substitute their judgment for that of USCIS officers in the absence of gross abuse of discretion.

[lili&kai 0]

On the idea of entry whilst awaiting a K1... it's the same as entering at any other time really except that you may show more intent. If you are spending more time in the US than in your own Country is when it becomes a problem. Have a look at our timeline if you don't believe me. It has everything to do with the POE officer. Some get in with no problems.... some do not.

well.. that is a very good point. easy to say that it's easy as long as it is... it has been for me so far but it's important to be patient and carefull on the whole process. plus it is indeed very likely to be less easy when one can't show evidence he has a job and appartement back "home"..

[MichelleN 0]

show me!!!

As is said earlier, I would not recomend it, but the LAW allows it, w/o talking about intent. The USCIS does not even use that 30/60/90 day rule, as does the DOS.

I also recommended that they talk to a knowledgeable immigration attorney, as they CANNOT advise clients to take illegal actions.

Hmm I found this on the USCIS website, in regards to a FAQ on how to get your fiance into the US. It seems you're both kinda right....

What if my fiancé(e) uses a different kind of visa, or enters as a visitor without visa, to come here so we

can get married?

There could be serious consequences. Attempting to get a visa or enter the U.S. by saying one thing when you intend another may

be considered immigration fraud, for which there are severe penalties. Those penalties include restricting a person’s ability to

get immigration benefits, including permanent residence, as well as a possible fine of up to $10,000 and imprisonment of up to five

years. It is not appropriate for your fiancé(e) to enter the U.S. as a visitor with the intent to marry you and remain to try to become

a permanent resident. It is appropriate, however, to enter as a visitor to have the wedding in the U.S. and then return to a foreign

residence for further processing for U.S. immigration as a spouse. You should come prepared with proof of your clear intentions in

this regard.

You can't enter the US with the intent to marry and expect to stay in the US while the K3 is being processed. You can come, marry and then the foreign spouse has to return to their country while the K3 is being processed. That's if I'm reading it correctly.

[KimandRuss 0]

Yes, what is considered illegal is not to come to the U.S. and marry... lots of people do that. It's coming into the Country with the intent to immigrate. It's being made to sound complicated here but it's really not... The law is simple... you can not enter the US on any visa (except K1) to marry WITH the intent of staying. There is legal way to do things.... and there is immigration fraud. Sure, maybe you'll get lucky .... but maybe not.

[Chica Yeyé 41]

You can't enter the US with the intent to marry and expect to stay in the US while the K3 is being processed. You can come, marry and then the foreign spouse has to return to their country while the K3 is being processed. That's if I'm reading it correctly.

You are correct

[annak 0]

thank you all so much. i wish i'd been a little more practical this past year in spain, but being a first time mom in a foreign country can throw you for a loop. i think it's probably best to start the k1 and forget about the getting married when he arrives, though it is so tempting to hope that all would work out, i already did that and here i am, checking this site for answers everytime ruben is busy.

can someone give a concrete example of what proof to return would look like--is it a rental agreement, (i think the job is not a possibility since he's given notice), what else would be proof?

[KimandRuss 0]

Yes, rental agreement and job are good... anything that ties him to home and proves he'll be returning. Here's a FAQ on it and there are so many posts all over VJ if you do a search. He may not even be asked for proof at POE... it's a ####### shoot really. My love was allowed in 5 times with no ties to home....

Don't feel too bad. We weren't aware we were doing anything 'wrong' either. I was awaiting my divorce (years of this) and we just wanted to be together. My poor love has a master's degree and he's stuck in NZ right now.. not having worked in his field in two years. Hindsight is a b!tch!

Best of luck to you!