Withdrawing K1 and Filing AOS?

[David and Marina 0]

Ok this is the situation.

My fiancee came on the Visa Waiver program for a vist.

We originally file a K1. Now, we are weighing our option of withdrawing the K1 visa, and getting married and then filing our AOS.

Has anyone done this before and how was the outcome?

My fiancee is pregnant, got pregnant while here for her visit and we are considering this option but obviously don't want to cause a ban. She is due in March.

Is this possible, moreover has anyone done it and been sucessful. We don't want to trigger a ban, but our marriage would be spur of the moment since our intent was to go the K1 route, but now circumstances have changed. Thoughts, help?

[Kez/JWolf 6]

As you have filed a K1 you already had intent to married and then come to live in the USA.... you would have to be able to prove you had NO intent to marry and remain in the USA.... I would recomend you talk to a Lawyer before you do anything....

You say your fiancee is pregnant, how will you cover all the costs involved with her medical care and the birth of the baby? do you have insurance that she can be added to if she was to stay and marry...

Looking at your timeline you are well into the process of getting a K1 whould it not make more sence to complete the K1 and her come and then you get married....

There are many risks involved with doing AOS from VWP... you could be denied for trying to get around the immigration laws and you would have little or no chance of appeal... she would have to return home and you would have to file for K3/CR1....

Kezzie

[David and Marina 0]

Thanks for the reply Kezzie.

Honestly, I think that having filed the K1 would be proof we didn't intend to get married during her visit. Just my opinion though.

I have great health coverage and so she is currently under my health coverage, so that shouldnt' be an issue.

I would love to just ask an attorney that simple question I posted above, but most attorneys want $500 upfront to even just answer questions, at least around here, no initial free visits

Did you come here and intend to get married? The reason I ask is that it appears you came here to recover from surgery and then got married, which would be AOS right?

If we had known the K1 process would take 6+ months, we would have gone the K3 route, or I would have never asked her to marry me until she arrived here...

[Kez/JWolf 6]

Yes I did the AOS from a VWP...... But I only knew my now husband as the son of family friends I was staying with.... yes we had met before but he was not my boyfriend... we just hit it off from the word go and a month after I got here he asked me to marry him....

Your K1 application will show you had intent to marry and immigrate to the States and could be used against you.... you realy need to think about if it is worth the risk and uncertincy and stress to do the AOS from a VWP as you are so close to getting your K1 approved...

USCIS do not have to prove you used the VWP and AOS to get round the long wait for K1 it is up to you to prove you did not, and your K1 is not going to help you with this.... Does she have a Job and property that she was ment to be returning to? when was she ment to go back? what evidence does she have that will support her claim that she did intend to return?

Kezzie

[David and Marina 0]

Yes I did the AOS from a VWP...... But I only knew my now husband as the son of family friends I was staying with.... yes we had met before but he was not my boyfriend... we just hit it off from the word go and a month after I got here he asked me to marry him....

Your K1 application will show you had intent to marry and immigrate to the States and could be used against you.... you realy need to think about if it is worth the risk and uncertincy and stress to do the AOS from a VWP as you are so close to getting your K1 approved...

USCIS do not have to prove you used the VWP and AOS to get round the long wait for K1 it is up to you to prove you did not, and your K1 is not going to help you with this.... Does she have a Job and property that she was ment to be returning to? when was she ment to go back? what evidence does she have that will support her claim that she did intend to return?

Kezzie

She has no property as she was working, as many in the carribean to just get by. She does however have kids there, which would give her a good reason as to not come to the US. (2 younger children) and she did have work letter. Her visitors visa is up on November 17th of this year, so she has not overstayed or anything like that. I have contacted by congressman's office in regards to the K1. I agree USCIS could view it two ways really.

1. Tired of waiting, tried another process

2. Tried the K1 way, but then decided to get married instead (spur of the moment)

I don't know what we will/can/should do, it is all a cluster right now thanks to the incompentence at USCIS. We are trying to "play by the rules" but I now understand why people come running across the border.

[ChristinaM 0]

David, I did PRECISELY that! We filed the K1, then went to the local office to ask if we could extend my I-94 so that I didn't have to go back to the UK for a very short period of time where I had no job, house or car. (I was working on a cruiseship before my entry to the US.) The very nice officer there explained that there was no way to extend the VWP beyond the 90 days, but that we could get married and file for AOS. So that's what we did!

We chose to look at the withdrawn K1 as proof that I had no intention of immigrating when I entered the country - why would we have gone to the expense of filing the K1 if we'd have known all along that it was possible to marry and adjust?

Since they let her in on the VWP, I can't see any reason why there should be any question about it. Provided she didn't misrepresent herself (ie. lie about the K1 being in process) at the POE, I can see no reason why what you're suggesting is not a valid reason for a marriage and AOS filing at this time.

[Kez/JWolf 6]

I agree with Christina.... I just wanted to make sure that you understood that there are risks involved.... I did it, Christina did and many more here have done it.... so yes it can be done....

Good Luck in whatever you decide to do....

Kezzie

Edited August 27, 2006 by Kezzie

[sjoefl01 1]

I have to agree with Kezzie on this.

Things move a lot more quickly once you get out of the service center. You must be pretty close to that time already. I don't think you should turn a relatively simple process of adjustment into something that you have to worry about.

The only thing you will gain is not having to return for an interview. If you add a lawyer into the mix you have a whole new layer of people to screw things up.

Be patient. It is a long time till March. You can always adjust later if you feel compelled to do so. Surely your petition approval is very near.

[ChristinaM 0]

I would agree that you're likely not to be too far off with the K1, but it's not my call which route they choose from here. All I can do is share my experience.

Sitting out the K1 is probably the more sensible route, but discovering you're pregnant whilst in the US would seem, to me at least, to be a pretty bona fide reason someone would change their mind and just get married.

David, Kezzie is right about considering the implications. When you enter on the VWP, you waive your rights to certain immigration-related things. Most people who do the AOS from VWP have little to no problems. However, I am sure that there are denials out there that we just don't hear about on VJ.

We're not trying to scare you - just making sure that you have the imformation to make the best choice for you and your sweetie!