Change plans and marry while on VWP?

[Melian 0]

We were originally planning to apply for a fiancé visa. He's visiting from Germany now (has a return ticket, job in Germany, etc. - planned to go back in Feb.) Our daughter was born in December, and the paperwork from my divorce, which we needed for the K1 application, has taken much longer than it was supposed to to arrive. If we change plans and marry while he's here, how much of a risk do you think there is that they'll think we planned it ahead of time? (Yes, he really did intend to go back in Feb. when he arrived at the beginning of Nov.)

Edited January 8, 2009 by Melian

[JeremyR 8]

What is banned under the VWP is entering with intent to immigrate, not entering with intent to marry.

I believe (IANAL!) that there is technically nothing wrong with marrying under the VWP* and then your spouse leaving the US and you filing a K3 on his behalf. What you cannot do is marry under VWP and adjust status right away without your spouse leaving the country. Whether doing it this way is faster than the K1 process, I do not know.

VWP info from the Dept of State

*Assuming you can get a marriage license, of course. Don't some states now require proof of legitimate immigration status for non-citizens applying for marriage licenses? Also, Customs and Border Protection - if your spouse tried to reenter subsequently without a visa, I suspect he'd have an extremely hard time persuading the agent that he didn't intend to stay.

[Melian 0]

What is banned under the VWP is entering with intent to immigrate, not entering with intent to marry.

I believe (IANAL!) that there is technically nothing wrong with marrying under the VWP* and then your spouse leaving the US and you filing a K3 on his behalf. What you cannot do is marry under VWP and adjust status right away without your spouse leaving the country. Whether doing it this way is faster than the K1 process, I do not know.

VWP info from the Dept of State

*Assuming you can get a marriage license, of course. Don't some states now require proof of legitimate immigration status for non-citizens applying for marriage licenses? Also, Customs and Border Protection - if your spouse tried to reenter subsequently without a visa, I suspect he'd have an extremely hard time persuading the agent that he didn't intend to stay.

We didn't intend to get married during this visit when he entered the country (we were going to wait and apply for a K1) - but if we were to do so now that he's here, he would stay and file for an AOS.

[JeremyR 8]

We didn't intend to get married during this visit when he entered the country (we were going to wait and apply for a K1) - but if we were to do so now that he's here, he would stay and file for an AOS.

You can't file AOS based on a marriage when the spouse entered under the VWP.

Look at the eligibility categories listed in the AOS instructions (link - pdf file). Category 3 in the right column of page 2 and specifically paragraph 10, bottom of left column on page 2.

Sorry

[JeremyR 8]

Can't edit the above post but now not so sure. Section 11, right column, 2nd page appears to contradict exclusions earlier in the instructions. It's confusing, sorry

[Kez/JWolf 6]

We didn't intend to get married during this visit when he entered the country (we were going to wait and apply for a K1) - but if we were to do so now that he's here, he would stay and file for an AOS.

You can't file AOS based on a marriage when the spouse entered under the VWP.

Look at the eligibility categories listed in the AOS instructions (link - pdf file). Category 3 in the right column of page 2 and specifically paragraph 10, bottom of left column on page 2.

Sorry

There are 1000's of people who arrive on a VWP with no intent to immigrate. They get married and then file for AOS, Myself and my late wife one just 1 of these couples.

There is only a problem if you entered the USA with intent to remain and file for AOS. If no intent existed you can file for AOS as an immediate relative of a USC once you are married. You may be asked for proof at your interview that you did not intend on remaining at the time of your entry but many are not asked anything about their intent.

I would always recommend talking to a good immigration lawyer to go over your case and make sure you have no issues that may cause you problems later on.

[aravis227 1]

I think that you would have an incredibly difficult time convincing an officer that you didn't intend to marry. Look at it from their point of view...they spend every day trying to root out visa fraud and you come in saying "We were engaged and were going to file a K-1, but the divorce paperwork took a long time. He was visiting and we got the divorce paperwork so we got married! But we didn't intend to." I'm not saying you'd be automatically denied...I'm just saying it would be a difficult process. Whatever YOUR intentions were...it's their opinion of them that matters and if they think it was fraud the punishment is pretty steep.

My now-husband and I went through this process (although, with no kids or previous marriages involved) and he visited several times before we applied for our K-1. We went through this argument with ourselves every time...and we just didn't think it was worth the risk. The process has been painful and long...but I'm glad we did it this way because it meant we never had to fear deportation because someone we had barely met decided they didn't believe our relationship was real.

[JeremyR 8]

There are 1000's of people who arrive on a VWP with no intent to immigrate. They get married and then file for AOS, Myself and my late wife one just 1 of these couples.

Indeed, I was wrong - can't was the wrong word to use. The time limit for realising that you've messed up and editing out your mistake on this forum is very small

I still think it's not the safest route though. Persuading the IO that it wasn't planned all along will not be easy.

Edited January 8, 2009 by JeremyR

[Kez/JWolf 6]

I think that you would have an incredibly difficult time convincing an officer that you didn't intend to marry. Look at it from their point of view...they spend every day trying to root out visa fraud and you come in saying "We were engaged and were going to file a K-1, but the divorce paperwork took a long time. He was visiting and we got the divorce paperwork so we got married! But we didn't intend to." I'm not saying you'd be automatically denied...I'm just saying it would be a difficult process. Whatever YOUR intentions were...it's their opinion of them that matters and if they think it was fraud the punishment is pretty steep.

My now-husband and I went through this process (although, with no kids or previous marriages involved) and he visited several times before we applied for our K-1. We went through this argument with ourselves every time...and we just didn't think it was worth the risk. The process has been painful and long...but I'm glad we did it this way because it meant we never had to fear deportation because someone we had barely met decided they didn't believe our relationship was real.

The immigration laws allow for anyone to change their mind after they have entered the US. It is not about getting married once you enter, its not even about you already having a relationship and were waiting to file for a K1. It is all about your intent at the time you entered the US. If you came to visit and then once you were here something changed and you decided to remain and file for AOS then you can and the law fully allows for this. If on the other hand you planned to enter the US on a VWP/Tourist visa so that you did not have to wait for a K1/K3/CR1/IR1 and you gave up your job and home in your own country and then tried to file for AOS you would be commiting visa fraud. Now there are some people who do this and get away with it. But as long as you have proof that you did not intend to get arround immigration laws by entering with intent to remain you can legally file for AOS and remain in the US while it is being processed.

[aravis227 1]

I think that you would have an incredibly difficult time convincing an officer that you didn't intend to marry. Look at it from their point of view...they spend every day trying to root out visa fraud and you come in saying "We were engaged and were going to file a K-1, but the divorce paperwork took a long time. He was visiting and we got the divorce paperwork so we got married! But we didn't intend to." I'm not saying you'd be automatically denied...I'm just saying it would be a difficult process. Whatever YOUR intentions were...it's their opinion of them that matters and if they think it was fraud the punishment is pretty steep.

My now-husband and I went through this process (although, with no kids or previous marriages involved) and he visited several times before we applied for our K-1. We went through this argument with ourselves every time...and we just didn't think it was worth the risk. The process has been painful and long...but I'm glad we did it this way because it meant we never had to fear deportation because someone we had barely met decided they didn't believe our relationship was real.

The immigration laws allow for anyone to change their mind after they have entered the US. It is not about getting married once you enter, its not even about you already having a relationship and were waiting to file for a K1. It is all about your intent at the time you entered the US. If you came to visit and then once you were here something changed and you decided to remain and file for AOS then you can and the law fully allows for this. If on the other hand you planned to enter the US on a VWP/Tourist visa so that you did not have to wait for a K1/K3/CR1/IR1 and you gave up your job and home in your own country and then tried to file for AOS you would be commiting visa fraud. Now there are some people who do this and get away with it. But as long as you have proof that you did not intend to get arround immigration laws by entering with intent to remain you can legally file for AOS and remain in the US while it is being processed.

I understand what the law allows. My post wasn't about what the law ALLOWS...it was about what the officer will THINK, because in the end...that's what is important in this situation. Yes, the law allows you to come into the US and change your mind and suddenly decide to get married. However, you then have to PROVE that was not your intention. I commented on their likelihood of providing that proof. They were engaged before he entered, they already had intentions for him to eventually immigrate...proving to the officer that their marriage really was spur-of-the-moment will be difficult.

[pushbrk 12,898]

We didn't intend to get married during this visit when he entered the country (we were going to wait and apply for a K1) - but if we were to do so now that he's here, he would stay and file for an AOS.

You can't file AOS based on a marriage when the spouse entered under the VWP.

Look at the eligibility categories listed in the AOS instructions (link - pdf file). Category 3 in the right column of page 2 and specifically paragraph 10, bottom of left column on page 2.

Sorry

Yes you can. It seems like we correct this misconception weekly here. The issue is intent upon entry. It is not legal to have such an intention upon entry but it is perfectly legal to marry and adjust status after entering on the VWP in cases where plans and intentions change DURING the visit. It happens thousands of times each year.

What the OP will need to do is provide documentation of the immigrant's original intent to visit and return to their job. A copy of the return ticket and letters from employer or landlord will help in that regard as will documenting the need to move their possessions, or anything else that "documents" the original intention. To succeed, however, he must actually stay until at least Advance Parole is granted and I generally advise waiting until the green card is in hand. If staying doesn't work, then don't try this. You'll fail.

[Kez/JWolf 6]

I think that you would have an incredibly difficult time convincing an officer that you didn't intend to marry. Look at it from their point of view...they spend every day trying to root out visa fraud and you come in saying "We were engaged and were going to file a K-1, but the divorce paperwork took a long time. He was visiting and we got the divorce paperwork so we got married! But we didn't intend to." I'm not saying you'd be automatically denied...I'm just saying it would be a difficult process. Whatever YOUR intentions were...it's their opinion of them that matters and if they think it was fraud the punishment is pretty steep.

My now-husband and I went through this process (although, with no kids or previous marriages involved) and he visited several times before we applied for our K-1. We went through this argument with ourselves every time...and we just didn't think it was worth the risk. The process has been painful and long...but I'm glad we did it this way because it meant we never had to fear deportation because someone we had barely met decided they didn't believe our relationship was real.

The immigration laws allow for anyone to change their mind after they have entered the US. It is not about getting married once you enter, its not even about you already having a relationship and were waiting to file for a K1. It is all about your intent at the time you entered the US. If you came to visit and then once you were here something changed and you decided to remain and file for AOS then you can and the law fully allows for this. If on the other hand you planned to enter the US on a VWP/Tourist visa so that you did not have to wait for a K1/K3/CR1/IR1 and you gave up your job and home in your own country and then tried to file for AOS you would be commiting visa fraud. Now there are some people who do this and get away with it. But as long as you have proof that you did not intend to get arround immigration laws by entering with intent to remain you can legally file for AOS and remain in the US while it is being processed.

I understand what the law allows. My post wasn't about what the law ALLOWS...it was about what the officer will THINK, because in the end...that's what is important in this situation. Yes, the law allows you to come into the US and change your mind and suddenly decide to get married. However, you then have to PROVE that was not your intention. I commented on their likelihood of providing that proof. They were engaged before he entered, they already had intentions for him to eventually immigrate...proving to the officer that their marriage really was spur-of-the-moment will be difficult.

As I have said it does not matter if they were in a relationship before the entry on a VWP, People who are already married can enter without intent to remain and then change their mind and file for AOS.

As for the proof, A bank statement from a bank in the home country, a copy of a rent agreement, a mortgage statement, a return ticket, a letter from an employer stating you were due to return to work are all thing that can be used to prove no intent on entry. I have been on VJ since 2005 and have seen many many people adjust from a VWP/Tourist visa and none have been asked to provide any proof. That does not mean that USCIS wont ask for it but if you really did not have intent then you will have proof that you did intend to return to your home country.

[Melian 0]

Thanks for your answers!

He'll have proof of his job, car, insurances, bank account & return ticket - however, if they should look for proof of having an apartment there, I fear that will be a problem. He moved out in November, and was going to go back to his parents' house, anticipating that it wouldn't be long until we had a fiancé visa.

Edited January 8, 2009 by Melian

[Kez/JWolf 6]

Thanks for your answers!

He'll have proof of his job, car, insurances, bank account & return ticket - however, if they should look for proof of having an apartment there, I fear that will be a problem. He moved out in November, and was going to go back to his parents' house, anticipating that it wouldn't be long until we had a fiancé visa.

He could get his parents to write a letter stating that he moved back home and was expected to return after his visit

[MrsD 0]

Just note that you will still need copy of divorce papers for your concurrent I-130/I-485

Good luck and best wishes