AOS from Visa Waiver Program with Pending KI

[Lauren and Igor 3]

Hi everyone,

My fiance and I have filed for a 129F back in early September. He came here on the VWP for a two week visit, and subsequently lost his job. We then extended his visit until the middle of March, around a few days short of the 90 day stay allowed.

We are considering getting married here in the states and filing for AOS so that he does not have to return back to France. I have read a lot on these forums discussing the potential of fraud when adjusting from VWP, and my understanding is that it all comes down to the immigration officer and whether he/she thinks there was intent to permanently immigrate to the US upon entry.

Although we had no intent of getting married last month, my fiance does not have strong ties to France. He actually gave up his apartment before coming to the US (because he was going to work for the same company in another city in France upon his return). I am wondering if I can get some advice, perhaps from members who have had similar experiences.

Should we just wait for TSC to process our k1 application or get married and try to adjust? What happens if our AOS is denied? Could he be banned (and if so for how long) from US entry? Also, does filing a K1 previously help us or hurt us in regards to "intent"?

Many thanks in advance!

[melanieuk 19]

I think you're right about the immigration officer. If he decides to stay, your case sounds very complicated and I'd advise you to get a lawyer. Ideally, he should return home and wait.

[KVE 29]

By having a pending K1 while coming on the VWP he could have actually been denied entry, I've heard of some people who have.

You'd need an attorney to sort out this, but I think it would be difficult saying there was no intent while a visa which is for that intent is being processed.

I would say go back and return on the K1.