Change of mind: Cancel K1 to get CR1 instead

[dwheels76 5,466]

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.

Good talk.

[KLS2010 30]

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?

Ok....I'm a little confused.

On point one... if you had gone/do go the K1 route, and she happened to make it to the US in order to have your wedding in December (being honest...I don't think she would make it there by Dec)... you kinda have to AOS after that. If she didn't, and then left the country (say in March to attend a very important family thingamajig), then she would be deemed to have abandoned her application for permanent residency and you would have to start all over again with the CR-1.

But anyway...moving on to your actual questions.

1. Just like with the CR-1, there is no problem with visiting while a I-129F is processing. Same deal as I mentioned about my friends visiting during their I-130 processing... just bring a copy of the NOA1 and proof of ties to Australia (for example, lease, car loan, letter from employer stating date she has to return by,etc) just in case, although in all likelyhood she wont be asked for any of it. The second part of that question though, about mentioning weddings... is where Pushbrk and another VJer were in dispute earlier. General consensus is - don't give out more information than is strictly needed to answer CPBs questions. Even if she is getting married, stating that she is visiting her fiance, is not lying either. Of course, if they asked straight out 'Are you getting married?" then of course she needs to be truthful!

2. How would they know that she got married on her previous trip? Unless they asked her specifically if that was the case. But anyway, it doesn't matter. There is nothing wrong with getting married on the VWP then going home and coming back again. I did it myself. I told them I was visiting my husband.... they didn't even bat an eyelid. So... not likely to have any issue there.

3. I had heard something similar, but I think that it's mainly used by people that are trying to adjust status without leaving. They think that by waiting til close to the end of the allowed time for the visa, then it looks better when they file to adjust, because it's supposed to show that they didn't have pre-conceived intent to stay when they entered (obviously by having pre-conceived intent to stay in the US, you are in contravention of the conditions of a tourist visa - namely that you are NOT intending to stay in the US!) And since you are planning for her to return to Australia after the marriage, this really doesn't have any bearing on your case.

THERE.... I think I answered your questions lol. WIsh I could be succint and give concise answers like Pushbrk but I just can't lol.

[KLS2010 30]

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.

Nope.... guess I didn't answer all your questions in my last post...missed this one lol

4. No, it shouldn't raise a red flag, During the course of my relationship, I told the CBP that I was visiting a friend, my boyfriend, my fiance and my husband (all the one person in case you're wondering lol.) And I had much the same travel history as your fiancee - 5 trips in about 2 and a half years. Just curious... had she been coming to visit you on all those previous trips too?

[raynlyd 3]

On point one... if you had gone/do go the K1 route, and she happened to make it to the US in order to have your wedding in December (being honest...I don't think she would make it there by Dec)... you kinda have to AOS after that. If she didn't, and then left the country (say in March to attend a very important family thingamajig), then she would be deemed to have abandoned her application for permanent residency and you would have to start all over again with the CR-1.

Yes you got it!!

Basically we made wedding arrangements for December based on the wrong "projection/assumption." We didn't think that the K1 process would take this long. Money has been sunk for down payments and we don't want it to go to waste.

proof of ties to Australia (for example, lease, car loan, letter from employer stating date she has to return by,etc) just in case, although in all likelyhood she wont be asked for any of it.

In her previous many visits, she was never asked for it. Would she be asked for it since we're processing K1?

Even if she is getting married, stating that she is visiting her fiance, is not lying either. Of course, if they asked straight out 'Are you getting married?" then of course she needs to be truthful!

I guess if she was asked "are you getting married" she could answer "no" and in order to be consistent with her "no" statement we could do the civil registry in Sydney (or Bali). Would this pose any problems?

4. No, it shouldn't raise a red flag, During the course of my relationship, I told the CBP that I was visiting a friend, my boyfriend, my fiance and my husband (all the one person in case you're wondering lol.) And I had much the same travel history as your fiancee - 5 trips in about 2 and a half years. Just curious... had she been coming to visit you on all those previous trips too?

Yes. The past 2.5 years she's been coming to visit me.

In addition she was home-schooled with US curriculum during high school, so during 2000-2003 she and her family used to come to the US yearly for some conference and standardized test.

THERE.... I think I answered your questions lol. WIsh I could be succint and give concise answers like Pushbrk but I just can't lol.

Thank you sooo much... Your advice and inputs have been really beneficial. If you're ever in LA, drinks on us!

I honestly am confused as to why the US has to be so tight with Australians or even Canadians.

I mean, it's not like the Australians are coming here to look for job when the unemployment rate in Australia or Canada is half that of the US?

Sorry... that was just me ranting my frustration...

Edited June 30, 2012 by Ray <3 Lyd

[pushbrk 12,569]

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.

Yes, I'm quite sure AND I also believe honesty is the best policy. Here's an example.

You and your wife are walking in the mall when one of your old girlfriends waves hello. Your wife asks, "Do you know that woman?" Do you answer...

1. Yes

2. Yes, and we used to mate like bunnies up until a month before I met you, honey.

Both answers are honest. Which do you choose?

If she asks, "How do you know her?" do you give answer number 2 or a more generic truthful answer like, "We used to work at the same company."

Edited June 30, 2012 by pushbrk

[KLS2010 30]

Yes you got it!!

Basically we made wedding arrangements for December based on the wrong "projection/assumption." We didn't think that the K1 process would take this long. Money has been sunk for down payments and we don't want it to go to waste.

In her previous many visits, she was never asked for it. Would she be asked for it since we're processing K1?

My opinion is no, but I'm not CBP. Better to be safe than sorry...if she has got stuff that she can use to show she intends to return to Australia... take it just in case!

I guess if she was asked "are you getting married" she could answer "no" and in order to be consistent with her "no" statement we could do the civil registry in Sydney (or Bali). Would this pose any problems?

They probably wont even ask her. They usually dont ask such specific questions (unless maybe they saw her with a wedding dress or something!).

Yes. The past 2.5 years she's been coming to visit me.

In addition she was home-schooled with US curriculum during high school, so during 2000-2003 she and her family used to come to the US yearly for some conference and standardized test.

Thank you sooo much... Your advice and inputs have been really beneficial. If you're ever in LA, drinks on us!

Lol thank you!! But the only time I'm ever in LA is when I've got 5hr layovers in LAX on my way to and from Australia lol.

I honestly am confused as to why the US has to be so tight with Australians or even Canadians.

I mean, it's not like the Australians are coming here to look for job when the unemployment rate in Australia or Canada is half that of the US?

Sorry... that was just me ranting my frustration...

Haha..... I think they are the most succint answers I've ever given lol

[san diego 407]

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.

You may want to research matters more before making misleading statements. The fact that you were let through does not mean OP will be let through. There are cases on VJ specifically from Canada where OP was refused entry because they were in the process of K1 or CR1 application.

[lynJer 7]

JUST PUTTING IN MY 2 BOBS WORTH....

Wishing we had have done the process via the c1 rather than K1 . Now re the tax....I think the spouse has to reside with you for a certain number of days out of the 12 mths...cos my husband tried to claim my three kids and could only claim 2 as one came a month later and therefore not eligible for that year as he wasnt here enough days....

and finally....it wouldnt suprise me if the immigration dept isnt working with the IRS to make sure you cant claim spouse, and will instead not allow him to migrate earlier.

Congrats on the wedding.....wed in the country your not going to migrate to is my suggestion...or better still....BORA BORA where its just you two! Or if you want somewhere really cheap....try fiji - I know an aussie friend who does weddings including the photos there.....

inbox if you want further details....

[Ivy. 113]

I do not know how to help you with K-1 and CR-1 questions, but I have some experience to offer regarding entering the US.

I went through 3 interviews for tourist visas (B-2) and I entered the US four times. I said I was visiting:

1. My friend (2008)

2. My boyfriend (2011)

3. My fiance (2012)

4. My husband and in-laws (2012)

At my 3rd interview (where I declared my intent to marry a USC) and 4th POE I was asked about where we will live and if I will move to the US. I said yes, but not yet as I want to finish my MA in my country where I have it for free. That's why we are not starting my CR-1 process yet.

When they saw I knew what I was talking about, they said "Okay" and issued a 10-year tourist visa/5 months+29 days permission to stay in the US.

I honestly believe she will have no problems at POE. I would not answer questions they did not ask, but even if it comes to that, don't be worried. With her history, passport and simple honest answers she should have no problems at all.

Best of luck!