VWP to AOS - possible if US citizen not permanent resident?

[SteveRD 0]

Hi everyone, hope you're well. Bit of an unusual question here:

Would it be possible for me to enter the US under the VWP, get married, apply for AOS and stay in the US if my US citizen spouse is not a permanent resident of the US? (I'm hoping not!)

The question is unusual because we're not actually intending to apply for an AOS or to remain in the US after getting married. I'm trying to establish proof of my intention to leave the US after getting married under the VWP. One thing I'm hoping to show is that I could not apply for an AOS even if I wanted to.

Our situation is as follows:

(1) My fiancee is a US citizen and I am a New Zealander. We currently both live in Kenya.

(2) We would like to have a wedding ceremony in the US at Easter for family reasons. But we are not yet ready to move to the US at this point (maybe another year or two).

(3) A fiance visa (K1) is not appropriate, due to the processing time and the fact that we are not ready to move permanently to the US.

(4) I know it is legal to enter the US under the VWP and get married, as long as you do so with the intention of leaving the US afterwards.

(5) To satisfy US border officials that I do not intend to remain in the US, I need to show proof of ties to Kenya. I am collecting all the necessary documentary evidence for this, but it is difficult.

(6) It would fairly easy to establish my fiancee's (the US citizen's) ties to Kenya.

Because we could also demonstrate that the US citizen is not a permanent resident, it could support my case that we intend to leave the US after getting married (i.e. I could not apply for an AOS even if I wanted to). I'm not sure though what the residency requirements would be, so would be grateful for any information you can provide.

Many many thanks for your help,

Steve

PS I am aware that I do not have to volunteer information to US border agents unless asked, but am operating under the assumption that I will be asked if we intend to get married (and of course will reply honestly).

Edited January 13, 2015 by SteveRD

[Hypnos 6,578]

You would be able to file for AoS, so that fact would not help you.

Also, a US citizen is never a permanent resident, they're a US citizen. Terminology is important here. As for being able to demonstrate ties between the US citizen and Kenya, that will likewise not help you any either; it's you that may need to demonstrate ties, not them.

You're likely overthinking this anyway. Your would probably just get waved through on the VWP.

Edited January 13, 2015 by Hypnos

[SimonBelgium 49]

I don't quite see the point of your question, and you are making some incorrect assumptions, but here is what I understand:

You want to marry the USC, and whenever you feel like it, move to the US at a future date.

If the USC is not a US Resident, the normal CR-1 process (or K-1 for that matter) is not valid.

Your point 4 is an INCORRECT assumption. Marriage and AoS on VWP is (as such) NOT allowed on VWP, however, USCIS condones it if the alien did not enter the country with intent to marry. Most lawyers will tell you that the marriage should then take place a minimum of 30-45 days after arrival.

If you are both intending to stay in Kenya for a few years, get married now, then file your I-130 with the specification that the USC is abroad, and intends to return to the US. She should therefore have a US income (or typically a job offer) and a place of residence in the US. You should consult with an immigration lawyer to see when exactly you should have those details, I'm hoping towards the end of the process.

Also make sure the USC has filed tax returns in the US, even for her income in Kenya !!

Edited January 13, 2015 by SimonAndKimberly

[SteveRD 0]

You would be able to file for AoS, so that fact would not help you.

Also, a US citizen is never a permanent resident, they're a US citizen. Terminology is important here. As for being able to demonstrate ties between the US citizen and Kenya, that will likewise not help you any either; it's you that may need to demonstrate ties, not them.

You're likely overthinking this anyway. Your would probably just get waved through on the VWP.

Hi Hypnos,

Many thanks for your response. Sorry, I may well have been sloppy with my terminology - my understanding actually relates to the Affidavit of Support, and the fact that the sponsoring spouse (i.e. the US citizen) needs to be permanently domiciled in the US at the time. So my thinking was we could show that she was actually domiciled overseas.

I understand your point that I am primarily the one who needs to demonstrate ties to Kenya in the first instance. Having my fiance demonstrate ties was only going to be secondary evidence.

And yes, I am probably overthinking it! It's just the stakes are higher than usual, as my parents would also be visiting the US for a small ceremony (they would not appreciate it if they arrived and I was turned back at the border)!

Thanks again for your comments. Steve

[SteveRD 0]

I don't quite see the point of your question, and you are making some incorrect assumptions, but here is what I understand:

You want to marry the USC, and whenever you feel like it, move to the US at a future date.

If the USC is not a US Resident, the normal CR-1 process (or K-1 for that matter) is not valid.

Your point 4 is an INCORRECT assumption. Marriage and AoS on VWP is (as such) NOT allowed on VWP, however, USCIS condones it if the alien did not enter the country with intent to marry. Most lawyers will tell you that the marriage should then take place a minimum of 30-45 days after arrival.

If you are both intending to stay in Kenya for a few years, get married now, then file your I-130 with the specification that the USC is abroad, and intends to return to the US. She should therefore have a US income (or typically a job offer) and a place of residence in the US. You should consult with an immigration lawyer to see when exactly you should have those details, I'm hoping towards the end of the process.

Also make sure the USC has filed tax returns in the US, even for her income in Kenya !!

Hi Simon / Kimberly (not sure which!), many thanks for your comments.

Yes your understanding is basically correct: I want to marry the USC now, and move the US at a future date. As you point out, the plan would be to file a I-130 just before we intend to return, at which point we would need to establish proof that my USC spouse is re-establishing domicile in the US (with proof job offer in the US, history of tax returns etc., as you point out).

In the meantime, we would like to get married in the US (as she has elderly family there) and then return to our home in Kenya.

My point 4 is actually correct - it is legal to enter the US under the VWP, with the intention of getting married, as long as I do not intend to stay in the US (e.g. the 3rd question here: http://canberra.usembassy.gov/spouse-fiancee.html).What is illegal, however, is to enter the U.S. under the VWP with both the intention to get married and the intention to then apply for an AOS. The challenge then is to prove your intention to leave after getting married under the VWP.

Hence my reason for wanting to show that I could not apply to AOS anyway, as my US spouse is domiciled outside the US and so would not meet the requirements for completing the affidavit of support.

Complex, I know! I'm just very paranoid about getting challenged at the point of entry. Thanks again for your comments,

Steve