Going to the US and not activating a K1 visa

[KathrynP 0]

I'm visiting my fiance next weekend in Chicago but I don't want to activate my K1 visa until I move in May. Do I need to bring/say anything special so that I can NOT activate my K1 visa?

[Carlawarla 1]

There have been other threads in here on the Canada forum that you should search for that have been the exact same question. Basically it's all up to the border officials. Are you prepared to activate it if you have to?

You could say you're just going for a visit, and hope they don't activate it, but if they say they won't let you in unless you activate it, then be prepared to either stay in Canada or activate the visa.

If you know what POE you're going to be going through, phone now and ask them if they'll let you through without activating it.

I know that people who do want to activate it later, have usually asked at the Consulate if they can have it placed in their passport at a later date, like after their next trip, so that they don't have to activate it.

[Kathryn41 3,205]

If you don't have to fly and are driving, leave your passport at home. Bring along your birth certificate or Canadian citizenship certificate instead. If you are flying you 'may' be able to visit, but you may find a US border authority who won't let you in unless you do activate the K1. Fortunately, immigration is pre-screened so you won't have flown there to be rejected upon arrival. Bring with you STRONG evidence of your ties to Canada - proof of employment; lease or mortgage valid until May; car title/insurance valid until May; if you are in school, schedule of classes/exams; etc. - and, if you are flying, your return air ticket. Again, it will be up to the authority at the border who decides whether you will be allowed entry without activating the K-1.

[KathrynP 0]

I tried searching but couldn't find anything so I'm obviously using the wrong keywords.

I'm flying (Toronto --> Chicago). I'm not prepared to activate my K1 at this time. I have too many things to do in Canada before I can leave. I can bring a lot of proof that I need to be in Canada in the next month, that won't be a problem, I just wasn't sure if there was anything special to say or if a lot of people had tried this and were denied.

[Krikit 1,164]

Kathryn and Carla have given you great advice here, Kathryn. I'm going to guess that you're driving over because I see your local office is Buffalo. I recommend crossing at the Peace Bridge. They let me through without making me use my K-1 visa. I just explained to them that I would be using it at a later date because I still had a house to sell and a job to resign from. But Kathryn really did give you the best advice for a land crossing. Leave your passport at home and use your birth certificate or Canadian citizenship certificate. Link

[Krikit 1,164]

I tried searching but couldn't find anything so I'm obviously using the wrong keywords.

I'm flying (Toronto --> Chicago). I'm not prepared to activate my K1 at this time. I have too many things to do in Canada before I can leave. I can bring a lot of proof that I need to be in Canada in the next month, that won't be a problem, I just wasn't sure if there was anything special to say or if a lot of people had tried this and were denied.

Oh, okay, you're flying. That's a bit more tricky. Toronto CBP officers aren't the friendliest in the world. Just be prepared to be turned back if you're not willing to use the visa. Good luck.

[zyggy 9]

I tried searching but couldn't find anything so I'm obviously using the wrong keywords.

I'm flying (Toronto --> Chicago). I'm not prepared to activate my K1 at this time. I have too many things to do in Canada before I can leave. I can bring a lot of proof that I need to be in Canada in the next month, that won't be a problem, I just wasn't sure if there was anything special to say or if a lot of people had tried this and were denied.

Agreed.. I would be prepared to not make the trip... I think the odds are against you, I think they will force you to make the choice of using the visa...

[KathrynP 0]

I tried searching but couldn't find anything so I'm obviously using the wrong keywords.

I'm flying (Toronto --> Chicago). I'm not prepared to activate my K1 at this time. I have too many things to do in Canada before I can leave. I can bring a lot of proof that I need to be in Canada in the next month, that won't be a problem, I just wasn't sure if there was anything special to say or if a lot of people had tried this and were denied.

Agreed.. I would be prepared to not make the trip... I think the odds are against you, I think they will force you to make the choice of using the visa...

I guess I'm having problems with this because I'm obviously doing everything legally so why wouldn't they let me into the country to visit my fiance? For a country so focused on family values I'd assume that they'd be happy I wanted to see my fiance before the wedding.

zyggy, my lawyer sent me the U.S. State Department's Foreign Affairs Manual ("FAM"). Why wouldn't the following section apply?

9 FAM 41.31 N11.1 Alien Fiance(e)s

9 FAM 41.31 N11.1-1 Fiance(e) of U.S. Citizens or Permanent Resident

Aliens

(TL:VISA-370; 03-13-2002)

An alien proceeding to the United States to marry a U.S. citizen is

classifiable K-1 as a nonimmigrant under INA 101(a)15)(K). [see 22 CFR

41.81.] The fiancé(e) of a U.S. citizen or lawful permanent resident may,

however, be classified as a B-2 visitor if the consular officer is satisfied that

the fiancé(e) intends to return to a residence abroad soon after the

marriage. A B-2 visa may also be issued to an alien coming to the United

States:

(1) Simply to meet the family of his and/or her fiancé;

(2) To become engaged;

(3) To make arrangements for the wedding; or

(4) To renew a relationship with the prospective spouse

[KathrynP 0]

I finally got through and talked to someone from Toronto and they said it was okay to not activate it and if the agent had a problem with that - ask to speak to a supervisor. I'll let you guys know how it goes.

[Krikit 1,164]

zyggy, my lawyer sent me the U.S. State Department's Foreign Affairs Manual ("FAM"). Why wouldn't the following section apply?

Because it's subject to interpretation and different officers interpret policy different ways.

I finally got through and talked to someone from Toronto and they said it was okay to not activate it and if the agent had a problem with that - ask to speak to a supervisor. I'll let you guys know how it goes.

Good news. Make sure you leave plent of time for them to deal with it. Hope all goes well.

[zyggy 9]

9 FAM 41.31 N11.1 Alien Fiance(e)s

9 FAM 41.31 N11.1-1 Fiance(e) of U.S. Citizens or Permanent Resident

Aliens

(TL:VISA-370; 03-13-2002)

An alien proceeding to the United States to marry a U.S. citizen is

classifiable K-1 as a nonimmigrant under INA 101(a)15)(K). [see 22 CFR

41.81.] The fiancé(e) of a U.S. citizen or lawful permanent resident may,

however, be classified as a B-2 visitor if the consular officer is satisfied that

the fiancé(e) intends to return to a residence abroad soon after the

marriage. A B-2 visa may also be issued to an alien coming to the United

States:

(1) Simply to meet the family of his and/or her fiancé;

(2) To become engaged;

(3) To make arrangements for the wedding; or

(4) To renew a relationship with the prospective spouse

First, you're not reading this correctly.. this gives guidance to a Consular Office when they can grant a B-2 visa if they check on their DS-156 form that they are the fiancee of a US Citizen. This does not say that one can give a B-2 visa at the same time as they give a K visa. THis section gives a Consular Officer the reasoning of granting a B-visa to a alien prior to the issuance of a K-visa or if they do not plan to immigrate to the US immediately after marriage. An individual can only have one visa at any time. If a K-visa is issued, a B visa is subsequently cancelled.

Second, one cannot use the FAM to judge what the USCIS can do because the USCIS isn't under the jurisdiction of the State Dept... It's under the jurisdiction of Homeland Security... So the FAM isn't really worth a hills of beans to them, they're not bound by it...

An individual is only permitted to have only one visa at one time. Once you get a K-1, you can no longer enter the US under a B-visa situation...

So again, don't be surprised if you aren't allowed to get back on that plane... if I was the supervisor on duty, I would send you packing...

Edited April 10, 2008 by zyggy

[Flames9_RN 358]

And thats why the immigrating process can be very frustrating! Every POE officer seems to understand the laws in a different manner. it MAY or may not work in ur favor, one just does not know!!

I traveled monthly to DC while my CR-1 was ongoing but NEVER had a problem, BUT if I had seen a different POE officer, he/she may have not allowed me entry, its all one big gamble. Yes i realize a k1 is different than a cr-1, just trying to state that a POE officer interprets the rules differently

[KathrynP 0]

So again, don't be surprised if you aren't allowed to get back on that plane... if I was the supervisor on duty, I would send you packing...

Well, let's hope I get someone who understands it differently than you because I've called and they've told me I can go so, I'm going to trust the person I talked to IN TORONTO and my lawyer rather than some stranger on the Internet.

Who says you're right? If all of these other POE officers will let me through, maybe you're the one interpreting things wrong?

[Carlawarla 1]

KathrynP...

You seem to be upset because people are responding to your question with their experience, or information they know of, and that doesn't jive with what you want to hear.

There has been some good responses to your questions, and ultimately it's your choice.

Most of us have been or are going through the process, so when we respond to questions here, it's usually because we've had the experience ourselves. We've gained very very valuable information from zyggy, and neiks, who both are Border personnel. So quite frankly, your statement about trusting someone (aka "stranger") you called on the phone and getting their interpretation, shows your newness to this process.

It's always a good idea to spend time reading other threads here about similar if not the same issues. I think people here have been clear that policy can be interpreted different depending on the officer you're dealing with.

We hope you do get over the border without activating your K-1. Please come back if you're successful and let us know how it goes! It's quite possible you'll find personnel that will interpret it how you'd like to interpret it. Please be respectful when people take the time to answer your questions here.

Edited April 11, 2008 by Carlawarla

[KathrynP 0]

Well... if I get through that would be great (and regardless what zyggy is saying, given who else I've talked to and even from some other people on this forum there is a good chance I can go) and if not I've come up with a backup plan. He flies into Chicago and then drives and crosses the border in Detroit and meets me in Canada there. No border crossings for me and we still can see each other. So, at least all of the negative responses have led me to come up with something.

2.5 months is way too long. I'm stressed and cranky.