AOS, K1 or CR-1?

[Mathilda 19]

Hi folks,

First, I wish to thank this community for amazing support. After all this reading and 2 lawyers appointment I decided that it is about time for me to ask advise to this forum.

I met my loved one while on a J1 visa and after 2 1/2 years he proposed —15 days before my 30 days of grace expired (thus after my visa expired). He did not propose before because we were waiting for my 2-years home requirement waiver (NOS) to be approved, which finally happened 3 days before I was scheduled to leave. We looked into our options and it seemed that K-1 was our best bet. I regret very much that I did not extend my stay and got married, but this is another story. Then, I went back home.

While I was at home, my fiancé asked advise to 2 attorneys and both of them suggested him that I come back on a VWP and get married. We looked into that and we found out that it was ILLIGAL for me to come to the U.S. on a VWP with the intent to immigrate, thus we decided to stick with the K-1 plan, despite the lawyer’s advise . We were kind of pissed too that we have paid somebody and receive such a stupid advise.

It also seems from people’s experience in this forum that I could have entered the U.S. after filing the K-1 petition, but I decided to come back to the U.S. before filing to avoid problems, minimize the time apart and make sure to be able to attend my friends' wedding. So here I am, in the U.S. again, after giving up all my rights of appeal by entering on a VWP, ready to submit the fiancé petition.

However, something strange happened the day I entered. I met a taxi cab on the way from the airport, who after hearing my story (oh well, I shared a cab with a couple of nice ladies who started asking questions and you never know what storied you are going to tell strangers at 2 am after 30 hours traveling and a huge jet-lag) started yelling that that was ridiculous and that we should just get married and apply for AOS. He did that (obviously…) a while ago and there’s nothing wrong with that, he said.

You may now think that there’s something wrong with me for not trusting the opinion of 2 lawyers thinking about following the advise of a stranger taxi driver… Am I out of my mind? We can explore my mental issues later, but here’s the point:

1) I never overstayed any of my previous visas.

2) My criminal records are as clean as those of a 3-years old.

3) At the port of entry I was never questioned about my boyfriend/fiancé and I did not mentioned either.

4) Most important, I did not intend to marry before my entry and sure enough, I never had the intent to immigrate. Seriously, I want to be here just because my fiancé has a job that will be renewed for one more year and then nobody knows-where we are going to end up living (we both have careers with much international mobility). So we could go through the whole process just in time to leave.

5) I downloaded some K-1 application forms in my computer, but clearly, I did not plan to stay and definitely did not prepare for it… here’s the evidence:

a. I co-own a house, which I did not attempt to sell;

b. I own a car, which I did not sell;

c. I have a bank account at home where I keep all my money (not very much I have to say ), which I never attempted to close and some more money from a house my family sold;

d. I booked a roundtrip ticket (of course) to go back right after my friends’ wedding;

e. I scheduled at least one doctor’s appointment for an exam for when I am supposed to go back (because that’s still my main plan even if I am contemplating alternative options);

f. I did not quit my job, because I did not have one at the moment (against me I guess);

g. I attended an interview for a very good job at home before coming back to the U.S. Still waiting to know the outcome (still planning to move back home if I get the job!).

Would there be a problem in trying to prove that I did not mean to stay? Maybe me "thinking" about the K-1 is already a problem? The only problem I see with the AOS right now is that, the consequences of being denied (which I know is happening more often recently) are quite unappealing: be banned for life! But, isn’t the case that you could go home and apply for CR1 and waiver for the ban? And isn’t it the case that the problem is more about people who overstayed their VWP? I do not intend to overstay or do anything illegal.

Any thoughts?

Thanks,

Mathilda

[Harpa Timsah 13,258]

It seems you did not intend to immigrate here on this trip (good thing you didn't follow the lawyer's advise and plan to do this because then you would not be able to do this without committing fraud) so yes, you can apply for AOS. However, you should be informed about how it works. You seem to know that yes, you cannot appeal any negative decision if you are denied. To give yourself the best chance, you MUST get your application submitted and initially accepted for review before your 90 days are up, so I would mail it off at least two weeks (a month if possible) before your stay is up. If you decide to do this, know that you cannot leave the country until you have either temporary travel permission (called Advance Parole or AP) or the Greencard in hand. This will take a few months.

You could also submit the K-1 application now and wait here as long as you can, then go back home and wait out the last few months and come back. This is a much safer option. Good luck.

[Aztec&Taino 144]

Hi folks,

First, I wish to thank this community for amazing support. After all this reading and 2 lawyers appointment I decided that it is about time for me to ask advise to this forum.

I met my loved one while on a J1 visa and after 2 1/2 years he proposed —15 days before my 30 days of grace expired (thus after my visa expired). He did not propose before because we were waiting for my 2-years home requirement waiver (NOS) to be approved, which finally happened 3 days before I was scheduled to leave. We looked into our options and it seemed that K-1 was our best bet. I regret very much that I did not extend my stay and got married, but this is another story. Then, I went back home.

While I was at home, my fiancé asked advise to 2 attorneys and both of them suggested him that I come back on a VWP and get married. We looked into that and we found out that it was ILLIGAL for me to come to the U.S. on a VWP with the intent to immigrate, thus we decided to stick with the K-1 plan, despite the lawyer’s advise . We were kind of pissed too that we have paid somebody and receive such a stupid advise.

It also seems from people’s experience in this forum that I could have entered the U.S. after filing the K-1 petition, but I decided to come back to the U.S. before filing to avoid problems, minimize the time apart and make sure to be able to attend my friends' wedding. So here I am, in the U.S. again, after giving up all my rights of appeal by entering on a VWP, ready to submit the fiancé petition.

However, something strange happened the day I entered. I met a taxi cab on the way from the airport, who after hearing my story (oh well, I shared a cab with a couple of nice ladies who started asking questions and you never know what storied you are going to tell strangers at 2 am after 30 hours traveling and a huge jet-lag) started yelling that that was ridiculous and that we should just get married and apply for AOS. He did that (obviously…) a while ago and there’s nothing wrong with that, he said.

You may now think that there’s something wrong with me for not trusting the opinion of 2 lawyers thinking about following the advise of a stranger taxi driver… Am I out of my mind? We can explore my mental issues later, but here’s the point:

1) I never overstayed any of my previous visas.

2) My criminal records are as clean as those of a 3-years old.

3) At the port of entry I was never questioned about my boyfriend/fiancé and I did not mentioned either.

4) Most important, I did not intend to marry before my entry and sure enough, I never had the intent to immigrate. Seriously, I want to be here just because my fiancé has a job that will be renewed for one more year and then nobody knows-where we are going to end up living (we both have careers with much international mobility). So we could go through the whole process just in time to leave.

5) I downloaded some K-1 application forms in my computer, but clearly, I did not plan to stay and definitely did not prepare for it… here’s the evidence:

a. I co-own a house, which I did not attempt to sell;

b. I own a car, which I did not sell;

c. I have a bank account at home where I keep all my money (not very much I have to say ), which I never attempted to close and some more money from a house my family sold;

d. I booked a roundtrip ticket (of course) to go back right after my friends’ wedding;

e. I scheduled at least one doctor’s appointment for an exam for when I am supposed to go back (because that’s still my main plan even if I am contemplating alternative options);

f. I did not quit my job, because I did not have one at the moment (against me I guess);

g. I attended an interview for a very good job at home before coming back to the U.S. Still waiting to know the outcome (still planning to move back home if I get the job!).

Would there be a problem in trying to prove that I did not mean to stay? Maybe me "thinking" about the K-1 is already a problem? The only problem I see with the AOS right now is that, the consequences of being denied (which I know is happening more often recently) are quite unappealing: be banned for life! But, isn’t the case that you could go home and apply for CR1 and waiver for the ban? And isn’t it the case that the problem is more about people who overstayed their VWP? I do not intend to overstay or do anything illegal.

Any thoughts?

Thanks,

Mathilda

Mathilda,

I think that what would have been best is if you had gotten married before your visa expired and then do the AOS. But hindsight is 20/20! As you know, since you had entered the US under a visa, you were able to adjust your status. As you also know (and as it has been discussed many times in VJ), people who come from VWP countries do not have a visa to adjust from and are facing added scrutiny when attempting to AOS based on marriage when they entered through the VWP.

From the option that remain: the K1 or CR1 I would advise to go the CR1 route. Have your fiance go to Italy, marry, and have him file for you as your spouse. Upon entry to the US you will be allowed to work and you will enter as a permanent resident. It is also the cheaper route and, as of late, not that much lengthier than the K1 route.

Best wishes!

[Mathilda 19]

Thanks for your answers!

Edited February 9, 2011 by Mathilda

[Mathilda 19]

Mathilda,

I think that what would have been best is if you had gotten married before your visa expired and then do the AOS.

I know, to marry before my j1 expired would have been best but honestly, we did not suspect at that time how complicated the whole thing was going to be! We though that my 2-years home requirement was our main problem... how naive!