Beginning of the process...Help!

[Ladylethal 12]

Ok so again, if your foreign SO will remain in the country after the marriage you file for the I-130 + I-485. If he goes home after marriage you file for a CR-1 or K3. Option #1 requires him to prove he had no immigration intent when he came on the visitor's visa.

[Chica Yeyé 41]

Ok so again, if your foreign SO will remain in the country after the marriage you file for the I-130 + I-485. If he goes home after marriage you file for a CR-1 or K3. Option #1 requires him to prove he had no immigration intent when he came on the visitor's visa.

Bravo!

[Raptor 0]

I don't see where Chica is wrong. The OP indicated she Thinks CR-1 might be her option and Chica gave her information pertaining to that - yes he needs to go back to his country for the CR-1 route!!! ... however the OP did not give us enough information for us to help her better: what visa status the foreign fiancee is on now, country of origin etc.

To the OP:

You "came to visit the US", does that mean your fiancee is here on a B1/B2 visit visa? When does this visa expire and how long has he been here on that visa? Chica is 100% correct, if he entered the country on a visit visa he has to prove non immigrant intent. Meaning he did not come here with the intention of marrying and staying for good but his intention was to visit and then leave the country and not evade immigration laws. He can adjust status (AOS) from B1/B2 or many other non-immigrant visas if he proves non-immigrant intent - it will help if you don't get married within 90 days of him arriving here but well after.

Sorry I didn't give enough info. He's on a tourist visa, which lasts another month. We've been here 2 months. How do we prove non-immigrant intent? Is it something we have to include in the package we send in? We were living in the Netherlands before, and his job was moved (but he didn't want to move and take the job offered) so he quit. I never had a job there, but was going to a Dutch language school. We had the time, so we decided to come to my hometown to visit for 3 months. Recently, though, we've decided we want to get married and stay here. That's why we're going to file adjustment of status.

[Kathryn41 3,205]

Moderator hat on: Please don't personally attack or insult members who are offering advice. You can find ways to disagree without being insulting.

Moderator Hat off:

Chica Yeye's answer was correct - the OP was mixing up two different processes - applying for a CR-1 visa and applying for AOS.

A CR-1 visa allows the applicant to enter the US as a permanent resident once the processing is complete. It requires the applicant to be outside of the US as it is an 'entry' visa that grants permanent resident status once activated at the border. If the applicant is already here and decides to marry after he arrives, then he is does not need an 'entry visa' - he just needs permission to stay in the US as a permanent resident. This is done by filing the I-130 petition by the US citizen (requesting permission for a family member to apply to become a permanent resident) along with the non-American filing the I-485 application - a request to change status from non-immigrant (visitor) to immigrant.

Proving non-intent to immigrate when he entered means showing proof of ties to his home country - a job he needs to go back to, a residence he still maintains (pays rent, taxes, utilities, etc.), a return ticket, financial commitments, property ownership, dependent family members left behind, scheduled appointments for doctors, lawyers, schools, things like that, etc. It means he has loose ends left behind that he will need to take care of because he was expecting to return to them.

Edited December 30, 2009 by Kathryn41

[FortLaudy 10]

Raptor: Is your fiancee Dutch? Entered the US on a Netherlands passport? Did he enter on a Visitor visa or Visa Waiver Program (VWP)? Big difference... The Netherlands participate in the VWP, so most Dutch citizens do not need a visa to travel to the U.S.

You have to keep in mind that in case you fail the Adjustment of Status (AOS) from visitor process, there is no chance to appeal... be very careful how you go about this and try to stay in good standing with the USCIS. Since he's only been here for 2 months and entered as a visitor and now you want to get married, this is a big Red flag for the USCIS that he entered for the sole purpose of getting married, gaining immigration benefits and on top of that evading immigration laws... Many people (especially here on this website) have to wait for Months to get their fiancee over here on a K1 visa, so what you an your fiancee would be doing now would seem like you're jumping the line and avoiding the legal route of immigration... understand? It's best to avoid this and go the legal/right route.

It sounds like he is on the VWP as he had only 3 months here, so he cannot get an extension on stay... I would suggest don't get married right now and try to file AOS, it is just too soon and a big gamble... he may or may not be granted AOS and then he'd probably have to go back to Holland anyway and you would have to start the process from scratch again. If he is here under the Visa Waiver Program there seems to be no extension, if you want him to return and be your husband, get married here in the USA, he goes back to Holland and return on a CR-1...

http://www.visajourney.com/wiki/index.php/...Immigrant_Visas READ UP on this

What Are the Disadvantages of Using the VWP? http://www.cbp.gov/xp/cgov/travel/id_visa/...ure/vwp/vwp.xml

A: If you are admitted to the United States under the VWP, you may not change or extend your non-immigrant status. If your admission is denied you have no right to administrative or judicial review, except as noted above. Likewise, if you are found to have previously violated the terms of your admission, you may not enter under the VWP ever again. Therefore, before using the VWP, you should carefully consider your options.

[Bad_Daddy 2,209]

Sorry I didn't give enough info. He's on a tourist visa, which lasts another month. We've been here 2 months. How do we prove non-immigrant intent? Is it something we have to include in the package we send in? We were living in the Netherlands before, and his job was moved (but he didn't want to move and take the job offered) so he quit. I never had a job there, but was going to a Dutch language school. We had the time, so we decided to come to my hometown to visit for 3 months. Recently, though, we've decided we want to get married and stay here. That's why we're going to file adjustment of status.

He lived in the Netherlands you say, yet he was attending a "Dutch language school". So is he a citizen of the Netherlands or some other country ?

[Laura & Kyle 16]

Ok so again, if your foreign SO will remain in the country after the marriage you file for the I-130 + I-485. If he goes home after marriage you file for a CR-1 or K3. Option #1 requires him to prove he had no immigration intent when he came on the visitor's visa.

Hi Raptor,

Ladylethal is dead on when it comes to the big differences in the two routes you can take. My husband and I took the first route, where he came over on the VWP, and we got married a month and a half after he arrived. We just sent off our forms Lady mentioned (I-130, I-485, and I-765(employment authorization)). Please know that when preparing the forms, there are a lot of other forms that "support" the I-130 and I-485... G-325a, I-693, I-864,etc.

Yes, we will have to show that he did not have intent to get married and stay here when he first arrived. It's a pain in the #######, but we are doing it. We couldn't do it without the help of his family helping to wrap things up back in Scotland (selling his motorcycle, quitting his job, loans, etc.) and my family. Hopefully you'll have some support from family no matter how you go about it.

Good luck with whatever choice you make.

Laura

[FortLaudy 10]

Hi Raptor,

Ladylethal is dead on when it comes to the big differences in the two routes you can take. My husband and I took the first route, where he came over on the VWP, and we got married a month and a half after he arrived. We just sent off our forms Lady mentioned (I-130, I-485, and I-765(employment authorization)). Please know that when preparing the forms, there are a lot of other forms that "support" the I-130 and I-485... G-325a, I-693, I-864,etc.

Yes, we will have to show that he did not have intent to get married and stay here when he first arrived. It's a pain in the #######, but we are doing it. We couldn't do it without the help of his family helping to wrap things up back in Scotland (selling his motorcycle, quitting his job, loans, etc.) and my family. Hopefully you'll have some support from family no matter how you go about it.

Good luck with whatever choice you make.

Laura

I think the OP's fiancee is here on a VWP, like yours... Now I know many people have adjusted from VWP without problem, but I think the law on the VWP is very clear and people should not be encouraged on VJ to think that they can come over to the US on a VWP and get married and adjust without a problem... Maybe this has and will work for you and a few others but the law is very clear, see below. If you make it seem like it's such a common thing and seemingly so easy to adjust from VWP then people from all of those VWP countries will start going your route instead of the K1/CR1 (LEGAL route), and the VWP will get a bad rap and might be scrapped. I take personal offense to this kind of immigration advice, because some of my family members might not be able to make use of the VWP in future to visit us because of people misusing it to commit immigration fraud. (Entry on VWP + intent to stay and adjust = visa fraud)...

http://www.cbp.gov/xp/cgov/travel/id_visa/...ure/vwp/vwp.xml

Q: What Are the Disadvantages of Using the VWP?

A: If you are admitted to the United States under the VWP, you may not change or extend your non-immigrant status. If your admission is denied you have no right to administrative or judicial review, except as noted above. Likewise, if you are found to have previously violated the terms of your admission, you may not enter under the VWP ever again. Therefore, before using the VWP, you should carefully consider your options.

[Laura & Kyle 16]

I think the OP's fiancee is here on a VWP, like yours... Now I know many people have adjusted from VWP without problem, but I think the law on the VWP is very clear and people should not be encouraged on VJ to think that they can come over to the US on a VWP and get married and adjust without a problem... Maybe this has and will work for you and a few others but the law is very clear, see below. If you make it seem like it's such a common thing and seemingly so easy to adjust from VWP then people from all of those VWP countries will start going your route instead of the K1/CR1 (LEGAL route), and the VWP will get a bad rap and might be scrapped. I take personal offense to this kind of immigration advice, because some of my family members might not be able to make use of the VWP in future to visit us because of people misusing it to commit immigration fraud. (Entry on VWP + intent to stay and adjust = visa fraud)...

If you read my response, you will see that I never said it was an easy process. It is quite difficult and the AOS route through VWP is VERY VERY DIFFICULT. We did not plan on taking this route, we just ended up on it and are making do while we go through the process. Those people who want to misuse the VWP and commit immigration fraud will do so regardless. My husband and I are not even at the end of the process; we are at the beginning and was I stating my experience. Your scare tactics do not help as the OP was asking for advice and guidance. They have most likely already made up their minds, but are deciding what needs to be done based on the decisions they have made (off the boards).

As someone who is new to the boards, it wasn't helpful to read those who use scare tactics in their response. It's not what I was looking for and was often looked over. What I looked for are those that give real information based on THEIR experience or those that gave guidance based on the helpful VJ guides.

Raptor, and anyone else debating what forms/route you need to go through, good luck and know that whatever process you take, it will take time, effort, and a lot of support. There are many wonderful members here that will support you through the process. Many members on the forums look down on those that came over on the VWP and get married and file for AOS status. The main concern/issue is the intent (which almost every poster on this forum has commented on). It is illegal to come over using the VWP with the intent to get married and/or stay in the US indefinitely. There are those, specifically in this subforum, that have and are going through the VWP->AOS process because there was NO PRIOR INTENT to get married or stay. I don't think a single one of us would tell you the process is "easy."

[FortLaudy 10]

Your scare tactics do not help as the OP was asking for advice and guidance.

Scare tactics? What scare tactics? I was merely stating the law.

[FortLaudy 10]

They have most likely already made up their minds, but are deciding what needs to be done based on the decisions they have made (off the boards).

No, they have not, she's still considering the CR-1 route (see original post), rightly so, which is far better and legal in the eyes of the USCIS than adjustment from AOS after only being here for two months on a VWP.

[Deputy Purple 1,294]

If you are going to marry and then try to Adjust Status from VWP you need to think about "Red Flags" that might make the process even more difficult for you.

The fact that he left a job shortly before coming to the States works against you. Do you have good evidence that there was a plan to return after 3 months? Things like return plane tickets, lease or mortgage back home and some other "Strong Ties" (I'd hope for VERY Strong Ties as the recently left job feeds the presumption of immigrant intent) might be enough but also remember this:

If his AOS is denied then you have no recourse or appeal. He will have to return to his country and most likely will have a finding of "Immigration Fraud" in his USCIS file which would ban him from re-entry and make future Visa filings difficult at best.

In the end only you two can decide if the risk is one you're willing to take.

Either route there are obstacles you will have to overcome such as financial sponsor for him with you not working (AOS and CR-1 both will require this) and establishing a US Domicile.

There is a 3rd option that hasn't been mentioned yet: DCF, where you would both return to his country and you can file the CR-1 through the US Embassy there which is usually a shorter wait. You would still have the issues of Financial Sponsor & US Domicile to deal with though.

[Chica Yeyé 41]

There is a 3rd option that hasn't been mentioned yet: DCF, where you would both return to his country and you can file the CR-1 through the US Embassy there which is usually a shorter wait. You would still have the issues of Financial Sponsor & US Domicile to deal with though.

This last part is a bit not quite there. To be able to file DCF, both need to be legal residents in the consular district in question for at least six months (varies by consulate) and make sure that their assigned district accepts DCF filings. Not all do.

So, if you count moving there, obtaining residence, waiting for 6 months... the wait is about the same.

[Deputy Purple 1,294]

This last part is a bit not quite there. To be able to file DCF, both need to be legal residents in the consular district in question for at least six months (varies by consulate) and make sure that their assigned district accepts DCF filings. Not all do.

So, if you count moving there, obtaining residence, waiting for 6 months... the wait is about the same.

From one of the OP's posts in this thread: "We were living in the Netherlands before, and his job was moved (but he didn't want to move and take the job offered) so he quit. I never had a job there, but was going to a Dutch language school."

They we're specific on how long they'd been living in the Netherlands or what their status was there so you are correct that it may not apply in this situation.

Even if the wait time was the same, if the DCF option does exist they would be waiting out the process together.

Edited December 30, 2009 by Bob 4 Anna

[antda 13]

Hi Everyone,

Yes, VISITOR to AOS is perfectly LEGAL to do! (lol...I for one have done such...see my vj timeline...)

No, it's not illegal that you came to the US and get married while you were down here for a visit.

AS LONG AS YOU CAME HERE WITHOUT PRIOR INENTION TO IMMIGRATE ON YOUR VISIT and not do this as to avoid and/or break immigration laws, then it's fine and legal to do such.

I was in the same situation before too, as I came over to visit my boyfriend (now husband), on a tourist visa (which are rare for Canadians, as Canadians generally don't need visas to visit the USA) from Canada for 2 weeks, and then ended up getting married here in the USA, and overstayed, and then filed the paperwork with immigration. And yes, I did get approved and got my green card afterwards. For more information on my sitation, see my VJ timeline (the link can be found on my signature).

In fact, I had no clue about the immigration/visa process when I got married and afterwards and was 'stuck' in the USA...

Definitely no intention at all in my case....Just visited...got married..then realized..Uh Oh....Can I stay?

So I went to seek the advice of an immigration lawyer....

And it was the lawyer that said that I should do the Visitor to AOS route instead of the other immigrant visa routes....(no point in going back for me..)...

Definitely not a loophole here! It is legal! But yes, it does carry a lot of risk in this process!

For example, if there was a denial, it could not have been appealed (unlike the other visa routes), and would have been deported...scary....

But we took that risk anyways..and it paid off for me....Can't say that this works for everyone though...

Again, contact a lawyer if in doubt of your particular situation....Which I advise anyone to do in this and in any case...

Every situation is different...So don't pre-judge as to one way is better than another way......

As long as in the end it all works out well, then so be it...

Hope this helps too..Good luck on your journeys too..

Ant

P.S. If you HAVE PRIOR INTENTION TO IMMIGRATE ON YOUR VISIT you're probably better off filing for:

-A K1 (fiance visa...go back to your former country, file the paperwork, get married in the USA, adjust status, get green card)

-A K3 (marriage visa...go back to your former country, get married in the former country, file paperwork, come to USA, adjust status, get green card)

-A CR-1 (marriage visa...go back your former country, get married in the former country, file paperwork, come to the USA, get green card...)

Edited December 31, 2009 by Ant+D+BabyA