K3 and AOS concurrently...questions?

[k2daho 0]

Here is our situation. We had applied for the K1 visa after we got engaged in early summer...sent our application in June. Then heard NOTHING for months.

During the meantime my now husband was in training for a military position overseas and then training was to end on November 2 2007, and he was considered ready to be sent at any time after that for a two year tour in Africa. Having heard nothing about the K1 we decided we wanted to get married before he was sent overseas, and we set a wedding date. After the wedding in early November I remained here in D.C. with him, the plan being to stay here until he was deployed and then return home. I still have my lease which expires next month to prove that I had a contract to my apartment in Canada still. I did technically leave my job (I was a nanny, they had to replace me not knowing how long I'd be gone) but I had, and still have an open offer to go back and work for them should I choose to.

Now my husband has left, and it's really just more financially realistic for us for me to stay here rather than fly back to Canada, and since my original intent was not to stay in the USA it seems that we should be eligible to apply for K3 and AOS at the same time. Also considering the situation with him being an officer in the military and our timeline getting pushed up due to his deployment, I'm hoping that may be considered somewhat by USCIS...not sure about that though.

Oh yes and to make matters even more complicated, or maybe just annoying, we got our K1 approval (pending interview, medical, etc) in the mail a few weeks after we got married!!! Even so though if we had waited for that my husband would have been gone before we would have gotten an interview and I would have had visa in hand so it would have been the same situation.

I know that there are lots of people on this board who really dislike the use of K3/AOS filing concurrently, but I really want some honest experiences of those who have done it and if my situation sounds doable. All I really have for concrete proof that of not intending to immigrate right now is my lease paperwork, so I'm worried about that side of it, although it sounds like from some experiences I've read on here, they don't even ask about intent...

Looking forward to hearing what you have to say!

[pushbrk 12,901]

Here is our situation. We had applied for the K1 visa after we got engaged in early summer...sent our application in June. Then heard NOTHING for months.

During the meantime my now husband was in training for a military position overseas and then training was to end on November 2 2007, and he was considered ready to be sent at any time after that for a two year tour in Africa. Having heard nothing about the K1 we decided we wanted to get married before he was sent overseas, and we set a wedding date. After the wedding in early November I remained here in D.C. with him, the plan being to stay here until he was deployed and then return home. I still have my lease which expires next month to prove that I had a contract to my apartment in Canada still. I did technically leave my job (I was a nanny, they had to replace me not knowing how long I'd be gone) but I had, and still have an open offer to go back and work for them should I choose to.

Now my husband has left, and it's really just more financially realistic for us for me to stay here rather than fly back to Canada, and since my original intent was not to stay in the USA it seems that we should be eligible to apply for K3 and AOS at the same time. Also considering the situation with him being an officer in the military and our timeline getting pushed up due to his deployment, I'm hoping that may be considered somewhat by USCIS...not sure about that though.

Oh yes and to make matters even more complicated, or maybe just annoying, we got our K1 approval (pending interview, medical, etc) in the mail a few weeks after we got married!!! Even so though if we had waited for that my husband would have been gone before we would have gotten an interview and I would have had visa in hand so it would have been the same situation.

I know that there are lots of people on this board who really dislike the use of K3/AOS filing concurrently, but I really want some honest experiences of those who have done it and if my situation sounds doable. All I really have for concrete proof that of not intending to immigrate right now is my lease paperwork, so I'm worried about that side of it, although it sounds like from some experiences I've read on here, they don't even ask about intent...

Looking forward to hearing what you have to say!

Actually, there's no such thing as filing K3 and AOS concurrently. You are probably referring to and I-130 petition and AOS concurrently. K3 is a visa. You're here, so you don't need a visa.

When did you last enter the US and using what sort of visa? What is your current status, I-94 expiration etc.?

[k2daho 0]

Oh yes sorry, I meant the I-130...that results in the K3 though right?

I am a Canadian so do not have an I-94, but I entered the day before our wedding in November and have six months to stay although I believe after I file the paperwork I can stay as long as it takes for it to be completed.

[Brian&Mel 0]

Here is our situation. We had applied for the K1 visa after we got engaged in early summer...sent our application in June. Then heard NOTHING for months.

During the meantime my now husband was in training for a military position overseas and then training was to end on November 2 2007, and he was considered ready to be sent at any time after that for a two year tour in Africa. Having heard nothing about the K1 we decided we wanted to get married before he was sent overseas, and we set a wedding date. After the wedding in early November I remained here in D.C. with him, the plan being to stay here until he was deployed and then return home. I still have my lease which expires next month to prove that I had a contract to my apartment in Canada still. I did technically leave my job (I was a nanny, they had to replace me not knowing how long I'd be gone) but I had, and still have an open offer to go back and work for them should I choose to.

Now my husband has left, and it's really just more financially realistic for us for me to stay here rather than fly back to Canada, and since my original intent was not to stay in the USA it seems that we should be eligible to apply for K3 and AOS at the same time. Also considering the situation with him being an officer in the military and our timeline getting pushed up due to his deployment, I'm hoping that may be considered somewhat by USCIS...not sure about that though.

Oh yes and to make matters even more complicated, or maybe just annoying, we got our K1 approval (pending interview, medical, etc) in the mail a few weeks after we got married!!! Even so though if we had waited for that my husband would have been gone before we would have gotten an interview and I would have had visa in hand so it would have been the same situation.

I know that there are lots of people on this board who really dislike the use of K3/AOS filing concurrently, but I really want some honest experiences of those who have done it and if my situation sounds doable. All I really have for concrete proof that of not intending to immigrate right now is my lease paperwork, so I'm worried about that side of it, although it sounds like from some experiences I've read on here, they don't even ask about intent...

Looking forward to hearing what you have to say!

So you actually got into USA and got married before your K1 is approved and enter as a tourist?

I have heard many stories that is a big NO.

[k2daho 0]

Well yes, they asked where I was going when I crossed the border and I answered honestly and there were no further questions. I crossed legally and got married (which is not illegal or fraudulent) and only after being here now for almost three months we have decided that I will stay here instead.

Looking forward to hearing what you have to say!

So you actually got into USA and got married before your K1 is approved and enter as a tourist?

I have heard many stories that is a big NO.

[k2daho 0]

And also I have heard that there are issues surrounding this type of AOS as well which is why I'm asking, but most often I can't find the examples of when it's gone terribly wrong...it seems like most of what I'm finding in my research is that it's never really an issue when it get to the interview...that is my only concern as I said I KNOW what my intentions were and were not, but I have little concrete evidence should they be looking for it.

Well yes, they asked where I was going when I crossed the border and I answered honestly and there were no further questions. I crossed legally and got married (which is not illegal or fraudulent) and only after being here now for almost three months we have decided that I will stay here instead.

[Dan J 277]

Applying directly for AOS when you married the day after you entered, is likely going to look like fraud. You are technically not allowed to marry and stay on a non-marriage/immigrant visa. Unless you can prove that it was not your intent when you entered. Although as you said, you didn't intend to stay, can you prove that if asked?

The safe way would be to return home and apply for K-3 or CR-1/IR-1.

With the AOS route, you may get lucky and have no problems. Or you could end up with some ugly issues if the adjudicator decides that what you did was fraudulent.

Before filing anything, I would suggest that you speak to a lawyer.

[k2daho 0]

Yes this is what I'm worried about. My fiance tells me that he's not worried and that he's seen people go this route before and have no issue. But my biggest fear is for something to go terribly wrong. On the other hand I REALLY want to be able to file both at once to shorten our wait so that I can get a U.S. passport to go join him in Africa for the second year of his tour.

Does anyone have any specific info on what happens if they do decide that they think you are commiting visa fraud and deny you? What would the options be available to us at that point? Has this happened to anybody???

Applying directly for AOS when you married the day after you entered, is likely going to look like fraud. You are technically not allowed to marry and stay on a non-marriage/immigrant visa. Unless you can prove that it was not your intent when you entered. Although as you said, you didn't intend to stay, can you prove that if asked?

The safe way would be to return home and apply for K-3 or CR-1/IR-1.

With the AOS route, you may get lucky and have no problems. Or you could end up with some ugly issues if the adjudicator decides that what you did was fraudulent.

Before filing anything, I would suggest that you speak to a lawyer.

[k2daho 0]

Also...this confuses me. If you take the language in the instructions of the I-485 on its own...there is nothing that says that people cannot adjust status from visitor as a spouse...

"you are not eligible for adjustment of status if any of the following apply to you:

11. You were admitted to the United States as a visitor underthe Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen(parent, spouse, widow, widower or unmarried childunder 21 years old);"

Applying directly for AOS when you married the day after you entered, is likely going to look like fraud. You are technically not allowed to marry and stay on a non-marriage/immigrant visa. Unless you can prove that it was not your intent when you entered. Although as you said, you didn't intend to stay, can you prove that if asked?

The safe way would be to return home and apply for K-3 or CR-1/IR-1.

With the AOS route, you may get lucky and have no problems. Or you could end up with some ugly issues if the adjudicator decides that what you did was fraudulent.

Before filing anything, I would suggest that you speak to a lawyer.

[gwenneh 7]

The problem is that you applied for the K-1. You have already declared immigrant intent. You cannot un-prove that at your AOS interview. The burden of proof will be on YOU to prove that you had no desire to immigrate at the time when you crossed the border...and the K-1 filing has pretty much destroyed your chances of being able to prove that.

If you apply for AOS and are denied you will have to leave the country and will likely face a bar for fraud and misrepresentation, as well as possible criminal charges.

The safest way is to apply for a K-3 or CR-1. i wouldn't gamble my future on "lots of people do it this way without problems".\

You can adjust from a tourist visa as a spouse, provided you had no immigrant intent when you entered on the VWP - it is legal, and plenty of people do it. However, they have tp prove that they entered on the VWP with NO immigrant intent - that is what is going to trip you up, as you have the K-1 in process. You have immigrant intent.

Edited January 19, 2008 by Gwen666

[LaL 418]

The problem is that you applied for the K-1. You have already declared immigrant intent. You cannot un-prove that at your AOS interview. The burden of proof will be on YOU to prove that you had no desire to immigrate at the time when you crossed the border...and the K-1 filing has pretty much destroyed your chances of being able to prove that.

Actually we did have a member who had a K1 in process, was here on a crewman's visa (sorry do not remember the exact term), went back to UK, came back through VWP to visit, married and adjusted successfully. I am not saying its right or wrong, just that it happened.

[frustrated1 0]

Just to re-cap:

1-you're canadian,

2-live in the US with no visa,

3-can't work,

4-have an approved K1 but you're married,

5-marriage took place in the US while K1 was pending

You should probably apply for I-130 BUT you need to find out how you can convert K1 to I-130. I do know that you're NOT eligible for I-130 if you apply while living in the US. You should probably pursue it from Canada.

Visiting the US while the visa is pending is neither here nor there since it is the discretion of th POE officer. However, the onus is on you to inform the USCIS of a change in your marital status which again I think should be done as a Canadian resident.

[Brian&Mel 0]

Of course you entered USA legally and you have done nothing wrong by getting married. But bear in mind you have a K1 visa application pending. With your action, it can considered as an immigrant fraud. Perhaps you can look at this website: http://americantaino.blogspot.com/2007/06/...akiko-home.html

They are in the similar situation like you and your husband. They got married while their K1 application is pending. Perhaps you should consult an immigrant lawyer to look at your situation before the course of action.

[athena_ny 1]

Yes this is what I'm worried about. My fiance tells me that he's not worried and that he's seen people go this route before and have no issue. But my biggest fear is for something to go terribly wrong. On the other hand I REALLY want to be able to file both at once to shorten our wait so that I can get a U.S. passport to go join him in Africa for the second year of his tour.

Does anyone have any specific info on what happens if they do decide that they think you are commiting visa fraud and deny you? What would the options be available to us at that point? Has this happened to anybody???

Applying directly for AOS when you married the day after you entered, is likely going to look like fraud. You are technically not allowed to marry and stay on a non-marriage/immigrant visa. Unless you can prove that it was not your intent when you entered. Although as you said, you didn't intend to stay, can you prove that if asked?

The safe way would be to return home and apply for K-3 or CR-1/IR-1.

With the AOS route, you may get lucky and have no problems. Or you could end up with some ugly issues if the adjudicator decides that what you did was fraudulent.

Before filing anything, I would suggest that you speak to a lawyer.

Basically, they can put you into removal proceedings if denied.

I haven't seen anyone denied on this board due to fraud, but I also haven't seen anyone apply who married the day after entering. That in and of itself looks suspicious, especially with a K-1 that was filed and subsequently approved. I'm not making a judgement call on what you did/didn't do, because that is not my place, but it could look suspicious to the IO. Having the K-1 in process in and of itself doesn't mean it's fraud, but that with the fact you married the day after entering and now want to stay could trip you up during the process. And like Gwen said, I wouldn't want to gamble my future on "it may or may not be an issue" or "a lot of people don't have problems".

You really need to speak to an immigration attorney asap, and if they advise you to return home and do a CR-1 or K-3, then it would probably be best to do that.

Of course you entered USA legally and you have done nothing wrong by getting married. But bear in mind you have a K1 visa application pending. With your action, it can considered as an immigrant fraud. Perhaps you can look at this website: http://americantaino.blogspot.com/2007/06/...akiko-home.html

They are in the similar situation like you and your husband. They got married while their K1 application is pending. Perhaps you should consult an immigrant lawyer to look at your situation before the course of action.

Akiko and Keith are an ENTIRELY different situation. They got married, and Akiko entered the US on a K-1 while already married, which is misrepresentation and therefore, I believe visa fraud. While this situation could end in a visa fraud determination. They did not have a K-1 PENDING as the OP did.

Edited January 19, 2008 by athena_ny

[frustrated1 0]

well, I don't think it's that unreasonable for someone to be in a rush to get married before they're being sent to Africa for 2 years for military training.

also, there is proof of date when you got married but there is probably no stamp on your passport as to when you entered so that date is anyone's guess.