Change of mind: Cancel K1 to get CR1 instead

[san diego 407]

If you decide to take his route everything is 100% legal:

1) Withdraw I-129F

2) Come on VWP and get married

3) Fly back and apply for CR1.

HOWEVER, one obstacle: when she arrive to US and passes through passport control and asked for the reason to visit and will state he truth she will most likely be denied entry...

[Xanax 349]

Also, about coming here on VWP while CR1 on process.

Could we use my fiance's substantial travel history to US as proof of ties to Australia (about 3 times on avg the past 3 years, and without overstay)?

I would withdraw the K-1 with a notarized letter- that is what we did.

In regards to traveling, using the VWP you probably won't even be asked. When I entered (3 times now) I was never asked anything at all really.

[pushbrk 12,824]

Also, about coming here on VWP while CR1 on process.

Could we use my fiance's substantial travel history to US as proof of ties to Australia (about 3 times on avg the past 3 years, and without overstay)?

Extensive travel history without overstay or other abuse combined with generic truthful answers to "What is the purpose of your visit?" will usually make things pretty easy for an Australian but there's never a guarantee. Of course, nothing stops you from visiting him in Australia or some third country.

Adjusting status requires that he be able to actually stay here for several months after the marriage takes place. If he's already here and can stay, that's a viable option.

[KLS2010 30]

I personally didn't travel to the US while the petition was being processed, not because I didn't think I'd be allowed in, but because my work schedule at that time of year didn't allow it. Three friends of mine did travel while their petitions were processing and they had no problems whatsoever at the border (two of them were from the UK, one was from Poland). They all took copies of their NOA1 with them to show as proof that they were doing things the right way... but none of them were even asked about it. I myself got married on one trip, went home, then came back on another and filed the I-130 about a week after entry, stayed close to the 90days allowed on the VWP, then went back home and waited out the rest of the process. I have never been asked anything other than the standard questions by CBP (purpose of trip, how long, previous visits, etc), and have never had to show 'an abundance of temporary intent' (as that immigration lawyer termed it), even when I told CBP I was here to visit my HUSBAND. Of course, entry is always at the discretion of CBP, but the chances of an Australian with no history of overstay/other issues with visas or VWP, being denied entry, is pretty slim.

I would be very careful doing what that immigration lawyer suggested. There is no problem at all in coming to the US with the intention of getting married and then LEAVING. There can be problems, however, if you come to the US with the intention of getting married and STAYING. Which is basically what that lawyer has told you to do. Yes, people do it all the time and most don't have any issue, but just know that there is also a chance that you get caught out in a lie, in which case you can wave goodbye to any hope of her moving to the US.

Like I said before... can't really speak to the cancelling of the K-1 - but this is just my OPINION - if it were me - I would cancel the I-129F first before filing the I-130. Just seems more 'tidy' to me.

[rkk1 34]

We did the same last summer. We applied for the K-1 via I-129F in July. Then both married and filed for CR-1/I-130 in September. We didn't have to cancel our original I-129F. In fact, after they approved our I-130, we even received a request for document or two from the USCIS on our original I-129F until we sent a letter in requesting cancellation of the I-129F petition. (left hand doesn't know what the right hand is doing over there. Ha!).

No big deal. Happens every day.

Another thing we did was start the CR-1 paperwork before leaving the US. Also no big deal... just make sure you use your non-US adddress everywhere. They really don't care where you physically mail the forms from. That way, they got our forms a little faster using the domestic mail service.

Good luck!

I'm glad that things worked out for you guys without any issues, though my husband and I did things differently.

OP, I also cancelled my K-1 application (originally filed last August) to apply for the CR-1 instead. I had called USCIS to ask about how to handle this issue, as I told them (at that time) that I was thinking about to leaving for India to get married instead of getting married over here. They told me that the best way of avoiding confusion was to FIRST cancel the K-1, then wait about 1 month until they mail me an acknowledgement letter of the K-1 cancellation, before submitting the CR-1.

We thought about canceling the K-1 before I left for India, then us getting married in India and filing the CR-1 when I got back. But then we were worried that what if we cancel the K-1 only to find out that we couldn't get married in India (for some odd reason) and then we have to start the K-1 all over from scratch again (as we were already 3 months into the process). So that's why I waited to get married, THEN I came home and cancelled the K-1 immediately afterwards, saying that I was now ineligible for the K-1 due to marriage. It took about 4 weeks to get the confirmation letter of K-1 cancellation from them, and afterwards we were free to apply for the CR-1. Of course I wasn't thrilled to have to wait a month on standstill before I could file for CR-1 (although we anyway ended up delaying the process for other family reasons), we still wanted to do things the right way and not take chances with doing things wrong and having our visa delayed indefinitely. This was just my experience, having followed the instructions that I was told from the USCIS about canceling the K-1 before applying for CR-1. Good luck!

Edited June 29, 2012 by rkk1

[rkk1 34]

And just to add to my last post, when we submitted the I-130 packet for CR-1, I included 3 sheets:

-copy of my old NOA1 (for K-1 visa)

-copy of my letter asking for the K-1 to be withdrawn (due to our now ineligibility due to marriage)

-copy of their acknowledgment letter stating the K-1 has been withdrawn

We just got our NOA2 today without any RFE! So thinks worked out alright.

Edited June 29, 2012 by rkk1

[pushbrk 12,824]

And just to add to my last post, when we submitted the I-130 packet for CR-1, I included 3 sheets:

-copy of my old NOA1 (for K-1 visa)

-copy of my letter asking for the K-1 to be withdrawn (due to our now ineligibility due to marriage)

-copy of their acknowledgment letter stating the K-1 has been withdrawn

We just got our NOA2 today without any RFE! So thinks worked out alright.

I'm sure your method worked fine but there is no need to withdraw first and wait for acknowledgment. You can just send the withdrawal letter with the petition or separately directly to the service center, when ready.

[bsd058 296]

when she arrive to US and passes through passport control and asked for the reason to visit and will state he truth she will most likely be denied entry...

This might be true for a Russian, but probably isn't true for an Australian. I'm from Canada and I went through the border in 2009 to marry my wife. I didn't have a visa or proof of any ties. I was completely honest with CBP that I intended to marry on that trip. The officer just asked me what my plans were afterwards, and I told him that she is planning to come up to Canada to be with me. He didn't put up any sort of fuss and let me through immediately. I'm assuming they are similar with Australians since there probably isn't much fraud from that country either.

That being said, your fiance should bring proof of ties to Australia when she comes. CBP might be getting stricter with their requirements.

[pushbrk 12,824]

This might be true for a Russian, but probably isn't true for an Australian. I'm from Canada and I went through the border in 2009 to marry my wife. I didn't have a visa or proof of any ties. I was completely honest with CBP that I intended to marry on that trip. The officer just asked me what my plans were afterwards, and I told him that she is planning to come up to Canada to be with me. He didn't put up any sort of fuss and let me through immediately. I'm assuming they are similar with Australians since there probably isn't much fraud from that country either.

That being said, your fiance should bring proof of ties to Australia when she comes. CBP might be getting stricter with their requirements.

To fail to mention attending your own wedding is one item on your agenda is no more dishonest than to fail to mention you might visit a city park. Generic truthful answers are advised when entering during a spouse or fiancee visa process. Holiday, visiting family and friends, going to Disneyland, etc. are all generic acceptable answers, if true. Neither getting married while visiting or visiting during a petition based visa process are illegal acts.

[bsd058 296]

To fail to mention attending your own wedding is one item on your agenda is no more dishonest than to fail to mention you might visit a city park. Generic truthful answers are advised when entering during a spouse or fiancee visa process. Holiday, visiting family and friends, going to Disneyland, etc. are all generic acceptable answers, if true. Neither getting married while visiting or visiting during a petition based visa process are illegal acts.

I don't know about that, pushbrk. If I were CBP and someone failed to mention to me the main purpose of their visit (their own wedding), I would see it as willfull omission of a material fact. If it's found out by their questions as opposed to being given the information willfully, they might think you have something to hide and become more suspicious. That being said, I'm not CBP. Since it's not illegal to mention it, I would stay on the safe side and mention it. Just be sure to bring proof of ties and evidence you are returning to Australia.

Maybe that's the naive Canadian in me talking.

Edited June 29, 2012 by bsd058

[rkk1 34]

I'm sure your method worked fine but there is no need to withdraw first and wait for acknowledgment. You can just send the withdrawal letter with the petition or separately directly to the service center, when ready.

I'm quite sure you are correct; however, I'm simply passing on to the OP what I was told to do via the USCIS agent, as we went through the same visa change dilemma ourselves (from K-1 to CR-1). I realize that sometimes the USCIS agents don't give the best advice, but we didn't dare going against what we were told to do, as we didn't want to cause any problems for our application.

Edited June 29, 2012 by rkk1

[pushbrk 12,824]

I don't know about that, pushbrk. If I were CBP and someone failed to mention to me the main purpose of their visit (their own wedding), I would see it as willfull omission of a material fact. If it's found out by their questions as opposed to being given the information willfully, they might think you have something to hide and become more suspicious. That being said, I'm not CBP. Since it's not illegal to mention it, I would stay on the safe side and mention it. Just be sure to bring proof of ties and evidence you are returning to Australia.

Maybe that's the naive Canadian in me talking.

Well, fortunately, I DO KNOW about that. First, CBP is making the determination as to whether to allow entry. If entry is allowed, the CBP is out of the picture. IF, the CBP officer were to question further and ask specifically, if a marriage was planned, and one directly lied and answered NO, and was let in, AND the question and answer were NOTED to the record, a misrepresentation might be found by USCIS, not CBP.

Again, once the visitor is allowed in, CBP is out of the picture. What you as a CBP officer might think after the fact is irrelevant. It is not "safe" to mention it. It's "risky". You risk not being allowed into the USA for your own wedding.

I'm familiar with a Detroit/Windsor relationship where the Canadian planned on keeping his home and job in Canada after the marriage but was randomly pulled into secondary inspection, where they found a marriage application license in his briefcase. He was denied entry and flagged until he got a fiance or spouse visa. Although he had ZERO intent of immigration without the spouse visa, he missed his own wedding and since the PREPAID honeymoon trip also departed from Detroit, his bride took the honeymoon trip alone and unmarried.

Omitting an agenda item is not a risk. Raising a big red flag is a huge risk.

[bsd058 296]

Well there you have it, Ray. Do with this info what you will. In the end it's your decision. I stand by my 2 cents. Pushbrk stands by his.

I went through this experience first hand, but maybe I got lucky.

Something else that might help is to call a CBP officer to hear it from the horse's mouth. You don't have to give them your personal information on the phone. Just tell them what's up, and they'll let you know how they handle it.

Honesty is the best policy in my opinion and I think you risk being accused of concealment (a type of fraud in which you willfully omit of a material fact) if you don't mention the wedding. I could be wrong though.

Pushbrk does seem to be pretty sure of himself.

Edited June 29, 2012 by bsd058

[raynlyd 3]

If this helps here are some things I did not post that could probably shed a little bit more light:

1. We are not going to apply for AOS. She needs to be out of the country in march to attend a very important family thingamajig.

2. We have made arrangements for a wedding reception and holy matrimony in December because we thought the K1 would be done by November/December.

3. She has substantial travel history to US. The past 3 years she's been here 5 times without overstay.

Questions:

1. Suppose she wants to come next month, how will the CBP view the fact that we have K1 in process and a wedding reception and holy matrimony in December? Does this show enough proof that she does not intend to stay, but intends to follow the rules?

2. Suppose she comes next month to get married (civil only) and leave, but returns in December for our wedding (church and reception). When she comes here in December, how would the CBP sees the fact that we got married the last time she came here on VWP?

3. What is this 30/60 rule that someone mentioned to me? Is it true that in order to make it look like a "spur of the moment" marriage, we'd have to wait 30 or 60 days?

Edited June 29, 2012 by Ray <3 Lyd

[raynlyd 3]

Sorry for the double post. I forgot one more question:

4. The last time she was here they asked her what's her intention and she answered that "she's visiting her boyfriend."

Now that we are engaged and processing a "fiance" visa, she can no longer say that she's visiting her boyfriend.

Will this raise a red flag?

Anyway guys, thank you very much for the advice and inputs thus far. When this is all done, if any of you are in LA, I'd take you guys out for a drink.

Edited June 30, 2012 by Ray <3 Lyd