In USA with ESTA/VWP: Engaged Today - What are my options?

[MikeNZ1984 44]

I'm a New Zealander who has recently arrived in the United States on the VWP. I met my Fiance (yay I can finally say that now) almost a year ago in Bangkok, Thailand. Since then we've lived and travelled together in Thailand and New Zealand.

We left Thailand after the May 2014 coup (she was there on a student exchange and I was a long term Tourist who had been travelling Europe and Asia - no overstays anywhere, for the past 2 years) as we didn't feel it would be safe to stay any longer due to the nature of her research. Our flights were booked to NZ before I had a chance to apply for any Visas to the USA as we needed her exiting flight before we could travel to NZ. I didn't apply for any visa until after I returned to NZ as my passport was about to expire and I needed a new one. I went to apply for a B1/B2 Visa, but decided against it when the date for my meeting was the day before I as scheduled to travel. I rang up the consulate (or whatever the number that was on the consulate website) and was advised to get an ESTA.

Fast forward a few months and I'm in the United States at her parents place. I spoke to her mum yesterday and got the all clear for marriage (her dad lives overseas) and proposed this morning. We plan to get married in the USA on the first anniversary of meeting in Bangkok a few weeks. She has between 1 and 7 years left of her university before she can move from the states, and we don't want to live apart so I need to look at my options. What are they?

I'm still employed on a contract basis to my employer, and will continue to be employed for as long as I want - I work from home, and have no intention of applying for jobs here in the USA unless necessary (I earn more from overseas than I would in the USA). I have a return ticket back to my home country for mid November.

My reasons for travelling we that we have travelled together for the last 12 months, I wanted to visit her home country and I wanted to visit our suppliers for work (they are all based in San Diego, and face to face meetings are preferred before we purchase products). I even have a local newspaper article from my home country that mentions my intention to travel to the USA for researching my industry for my employer and my interests in the local business. When entering the country I was asked if I had a Job (I replied yes, correctly) and why I was gone so long (I mentioned my previous travel and that I can work remotely), I was asked no other questions and told clearly I could not attempt to work for any local business.

I have a degree and experience that would place me under a skilled migrant category for the green card lottery and NZ usually doesn't even use all its allocated green cards, so that would be an instant green card if I was prepared to wait 18 months for it. I am healthy and have no criminal record.

I see my options are:

1) Marry, attempt AOS under VWP and hope that nothing goes wrong - from what I hear there is a risk of deportation, but it is very slim providing there was no intent to immigrate

2) Marry, return home on my return ticket and go through the marriage visa process at home while my wife is by her self in the United States. We've been inseparable the last 12 months and I really don't like the idea of this - though my employer would rather see me around more in person. Is it possible to get this process started while I'm still in the USA on the VWP (I'm here just under 3 months) so that I have less time waiting in NZ and can return as soon as my visa is approved - is there anything that would result in my marriage visa not being approved?

We would also like to have a "second marriage" in her parents home country (which is in Europe) a year from now so that those who cannot attend in the USA can attend in their old village church. I understand that the AOS process can prevent you from leaving the country except under special circumstances - I'm guessing this would qualify.

My mother has also had a stroke back home in NZ about two years ago, she is ok now - but I'd like to know that I could return to NZ while under probation if her health failed and she needed looking after.

To be perfectly honest, it would be much easier if we both moved to NZ and for her to get NZ residency - but she is a top scholar and receiving lots of scholarships, and there is no way I'd want her to lose the opportunity at a degree/doctorate at a top school in the USA, especially when I can continue to work remotely from home.

* I have dual NZ/England/EU Citizenship, while she has dual USA/EU citizenship.

* We have joint bank accounts in New Zealand

* We are the main beneficiaries in each others will

* We have joint lease agreements in NZ and will have a joint lease on an apartment in the USA

I don't want to overstay and I want to ensure everything that I do is legal.

Edited August 25, 2014 by MikeNZ1984

[Harpa Timsah 13,258]

You have all three options available to you.

Leave, and come back on a fiance visa.

Marry, leave, and come back on a spousal visa.

Marry, stay, and adjust status to Legal permanent resident.

If you want to stay and adjust, as I am guessing because you posted your question here, you will not be able to travel abroad for a few months, until you get your travel permission.

A special marriage is certainly NOT a special circumstance. Special circumstances are like deaths in the family. That being said, you don't need a special reason to get the travel permission.

You will get the temporary travel permission in a few months, and then once you get your Greencard in 3-6 months most likely, you will be able to work and travel freely.

Good luck.

[genddob 10]

Having a joint lease in the USA doesn't really indicate no immigrant intent...

Obviously you want to stay and do AOS and accept the risk of adjusting from VWP. Make sure you apply for EAD (I-765) and AP (I-131) so that you can work and travel if needed while AOS is processing.

As to whether there is anything that would result in your visa being denied... impossible to know without knowing the facts of your case. It's not a "marriage visa" though - you don't need a visa as you're already in the US. You are applying to adjust status to permanent resident.

[christeen 966]

Marry, stay, adjust status... Apply IMMEDIATLY for AP/EAD so that you have the option to travel within usually 60-90 days... Sounds like you two have some great education and careers ahead of ou... Good luck

[MikeNZ1984 44]

Had the meeting with the landlord today and approved for the lease (had to prove we were in a "committed" relationship for our accommodation as she's a student.) so we have our housing sorted.

I'm unsure whether seeing an immigration attorney is the best idea or not. Does anyone have any recommendations for one to see in the SD region.

[ValerieA 350]

Read over the forms and see if you are comfortable filling them out yourself. A lawyer typically gets your information (from you) and then gives it to a paralegal to fill in the forms, which you then have to review for accuracy. It really can slow the process down, and is expensive.

[MikeNZ1984 44]

Well, we got married a few weeks ago, and my return ticket is tomorrow - which I won't be using. We health scare in the family, which has caused a lot of stress, and meant that I definitely won't be leaving unless I have to. Got the paperwork back from civil surgeon this morning, and we will be filing for an AOS using an immigration lawyer tomorrow.

Decided in the end that due to everything that's going on - it's worth the money to use the lawyer and fingers crossed this is the right choice.

We now have joint USA bank accounts (I was surprised that we were able to do this without a Social Security Number, but it appears that you can be added to an existing account without one, you just need proof of address overseas and primary ID i.e. passport), and utility bills to go with the apartment.

Edited November 12, 2014 by MikeNZ1984

[Shadaryia 11]

I wish you all the best Mike Keep us posted I am very interested on how everything goes for you both

[MikeNZ1984 44]

Well we submitted in time and had our original submission (Nov 17) returned as DHS managed to misplace a form with the signature on the I-380 (It was definitely sent, we had attorneys scan of the entire package that was sent just in case). So resubmitted with correct paperwork (again) and received the NOAs in the mail this morning.

Step 1 out of the way, now to play the waiting game.

[Xanax 349]

Well we submitted in time and had our original submission (Nov 17) returned as DHS managed to misplace a form with the signature on the I-380 (It was definitely sent, we had attorneys scan of the entire package that was sent just in case). So resubmitted with correct paperwork (again) and received the NOAs in the mail this morning.

Step 1 out of the way, now to play the waiting game.

You can do it without a lawyer. They cannot make the process go any faster etc.

Good luck.

[MikeNZ1984 44]

Got a phone call today from the immigration attorney that my biometrics appointment is at 9am on new years eve, the only issue is that I have not received any paperwork from DHS (they managed to get the address wrong on one of my NOAs after losing two of the application pages). Had they not been a secondary address I wouldn't have known of the appointment in two days which would have delayed the case even further. The good news is, they've got the papers - and I can go and do the biometrics in two days.

Fingers crossed things will go from here quite promptly.