When is non-immigration intent established?

[MPGGPM 0]

I have no idea why anyone is talking about K visas in this thread, to be honest, other than that's what most people here know. If the OP is already here in the USA, why would they need a visa, when they can legally file AOS from their current status? The amount of effort, time and money that it would take to get a K visa wouldn't be worth it compared to the alternative, which is just filing for AOS without leaving the USA.

It was brought up because she was intent on going back to China, for reasons she discussed earlier in the thread. She also wanted to do it sooner than the time it would take had she stayed here, done AOS....and at the same time applied for and waited for AP. She wanted to leave at the end of March, and it was doubtful , even if she married tommorrow (as an example), that she could get the AP that quickly for a non-emergency.

So the k-3 issue was brought up as an alternative if she felt she "must" go to China and leave. It was a quicker alternative to waiting for an I-130 in China, and a way to be with her husband in the USA , sooner.

Edited March 9, 2007 by MPGGPM

[brightsunshine 0]

Thanks MPGGPM for clarifying.

I was responding to the suggestion below by Caladan and others, which made me consider filing a K-3 if I do go and return on F-1. It gave me the impression that just the act of leaving (for consulate interview) is enough to "neutralize" any immigrant intent I might have had. Which means there would be no time limits as to when I can marry or file. I had doubts, and asked a couple times about this "intent being trip-specific" concept.

If you were to enter on an F-1 with the intent to adjust status (judged as Jewel indicated) and stay, you'd be violating that implicit part of the contract. If you enter on the F-1, get married, leave, and come back on a spousal visa, even though in your head, your goal is to stay in the U.S., you've fulfilled the terms of the F-1 by leaving the country and coming back on a new visa.

Similar example. My fiancé visited me over New Year's. He didn't have his K-1 yet, so he entered like Canadians normally do on the VWP, which says for Canadians, you can visit, but have to leave within six months. Now, obviously, we had a K-1 processing. He had long-term immigrant intent, but his intent *for that trip* was to visit for two weeks and come home. He did that, so his intent for that trip was fine, even though his intent long-term is to move here.

There is similar advice on the VJ guides - that if one did enter with intent and got married, they should file K-3/CR-1 instead of AOS. This advice is good for tourists, who

1) don't stay that long, and

2) even with "presumed guilt" (if they got married within 30 days) could still reasonably prove that they didn't "take up permanent residence" (lease, job etc back home).

like Caladan's fiance.

However, for most F-1/J-1's (MPGGPM's wife excepted, since her trip seemed to have been short), there is a need to be in the US for a longer period, and it may get very tough to prove that one didn't "take up permanent residence" when there is no job/lease back home. So if someone on F-1/J-1 actually got married soon after arriving, whether or not they had intent, it would seem to be more imprudent to file K-3 than AOS. If they dropped out of school and left to wait for K-3, they may face accusation of improperly obtaining entry with F-1; if they stayed in school in the US, they may face accusation of "marrying and taking up permanent residence".

[John & Annie 0]

Thank you for considering the right thing to do.

Edited March 9, 2007 by John & Annie