Tourist Visa / US Marriage / Return Home / apply for CR1

[pinetime 0]

Hello,

 

I am new to the website and thought I would begin my Visa Journey. I apologize in advance if I ask a question that has already been answered somewhere in the forums!

 

So our situation is:

 

I am a US citizen, marrying a Japanese citizen. She is currently visiting me on a tourist VISA. We have been debating marriage with the K1 and CR1 options for quite some time now. We decided the CR1 process as both of us can live and work in Japan while the CR1 is being processed. 

 

My question is:

 

Are there any issues with being married in the US right now while she in on a tourist Visa? From what I have gathered it isn't a problem unless you have the intention of overstaying your 90 day visa. We have no intention of doing this, we just want to get married here so that when she returns to Japan, she can start the Visa process for me to enter Japan. 

 

If this is a potential problem for something major like Visa Fraud, we would rather just get married in Japan and not have any other potential issues. 

 

 

Thank you for any and all responses! 

Edited January 12, 2018 by pinetime
typo

[Tristan1978 133]

I am a British Citizen and I got married in the US while on an ESTA with no problems, it is not visa fraud if she returns back to Japan.

[geowrian 22,337]

You have 2 options for a spousal path:

 

1) Marry in the US now and file for AOS. This lets her stay in the US while AOS is being processed (no need to return home). Upon approval, she would gain permanent residency (and a green card arriving shortly afterward). ETA: ~8-12+ months.

She would apply for an EAD (to work) and AP (to travel abroad) at the same time. ETA: ~4+ months for those 2 items.

Once AOS is filed, she cannot leave the US (without abandoning the AOS application and likely not being permitted back in under the VWP or a tourist visa) until she either obtains AP or the green card.

That said, this is basically a one-shot deal since she's already in the US and did not enter with intent to stay. She cannot leave and then come back with intent to AOS (that's fraud).

 

2) Marry (anywhere) then file the I-130 to start the CR-1 visa process. ETA: ~12-14 months. She can work & travel abroad after entry, with the physical green card arriving shortly afterwards.

She can visit during the process (and you can visit her as well, obviously). So long as she goes back home, there's nothing remotely fraudulent here.

 

30 minutes ago, pinetime said:

as both of us can live and work in Japan while the CR1 is being processed. 

This is fine assuming you have a proper visa to work in Japan...idk what's required there (and it won't impact her immigration process either way). Just know that both processes will require an I-864 (affidavit of support) to show that you can support the intending immigrant. Income must be from a source that will continue once returning to the US. A joint sponsor can be utilized if you do not meet the financial requirements.

Edited January 12, 2018 by geowrian

[pinetime 0]

Thank you for the reply. 

 

We are less worried about me immigrating to Japan, I have already live and worked there and am more familiar with their VISA processing. That being said, she will definitely be returning to Japan this trip, so the first option to apply for AOS is not realistic. 

 

When you said she cannot leave, and then come back with intent to AOS, could you elaborate? For example under (2) you said we could marry (anywhere) and then file for the I-130, does anywhere include the United States? That's really the question I'm seeking. 

 

If getting married in the US, returning home and then applying for the I-130 to start the CR1, we will likely be married in Japan to avoid this problem. When reading online, it appears that there are a few different answers concerning Visa Fraud. I read that it is only Visa Fraud if intend to overstay your Visa, but there is nothing illegal about getting married here. 

[Tristan1978 133]

6 minutes ago, pinetime said:

If getting married in the US, returning home and then applying for the I-130 to start the CR1, we will likely be married in Japan to avoid this problem. When reading online, it appears that there are a few different answers concerning Visa Fraud. I read that it is only Visa Fraud if intend to overstay your Visa, but there is nothing illegal about getting married here. 

You can marry in either the US or Japan, whatever suits you best. 

[geowrian 22,337]

5 minutes ago, pinetime said:

When you said she cannot leave, and then come back with intent to AOS, could you elaborate? For example under (2) you said we could marry (anywhere) and then file for the I-130, does anywhere include the United States? That's really the question I'm seeking. 

 

If getting married in the US, returning home and then applying for the I-130 to start the CR1, we will likely be married in Japan to avoid this problem. When reading online, it appears that there are a few different answers concerning Visa Fraud. I read that it is only Visa Fraud if intend to overstay your Visa, but there is nothing illegal about getting married here. 

Yes, she can come to the US and marry fine. Marriage is perfectly legitimate on a tourist visa (or ESTA). She just can't make any misrepresentations in the process (i.e. don't lie to CBP).

 

Correct- it's only fraud if you come to the US with intent to marry and stay.

[MyJourney 276]

13 hours ago, geowrian said:

You have 2 options for a spousal path:

 

1) Marry in the US now and file for AOS. This lets her stay in the US while AOS is being processed (no need to return home). Upon approval, she would gain permanent residency (and a green card arriving shortly afterward). ETA: ~8-12+ months.

She would apply for an EAD (to work) and AP (to travel abroad) at the same time. ETA: ~4+ months for those 2 items.

Once AOS is filed, she cannot leave the US (without abandoning the AOS application and likely not being permitted back in under the VWP or a tourist visa) until she either obtains AP or the green card.

That said, this is basically a one-shot deal since she's already in the US and did not enter with intent to stay. She cannot leave and then come back with intent to AOS (that's fraud).

 

2) Marry (anywhere) then file the I-130 to start the CR-1 visa process. ETA: ~12-14 months. She can work & travel abroad after entry, with the physical green card arriving shortly afterwards.

She can visit during the process (and you can visit her as well, obviously). So long as she goes back home, there's nothing remotely fraudulent here.

 @geowrian , what if they got married in the US and the alien spouse went back without overstaying. Later, they applied for CR with I130. The alien spouse came back again for a visit, with no intentions to AOS, but then, while here they decided to AOS (because, for example the wife became pregnant and needs the husbands health insurance). Can they do that? Would they have a good chance to successfully AOS? Thanks. 

Edited January 12, 2018 by MyJourney

[geowrian 22,337]

2 hours ago, MyJourney said:

 @geowrian , what if they got married in the US and the alien spouse went back without overstaying. Later, they applied for CR with I130. The alien spouse came back again for a visit, with no intentions to AOS, but then, while here they decided to AOS (because, for example the wife became pregnant and needs the husbands health insurance). Can they do that? Would they have a good chance to successfully AOS? Thanks. 

In theory that is fine as there was not intent to AOS at the time of entry.

[TM92 527]

@cduran: here is a thread (one of many) concerning marriage in the US with a tourist visa (or VWP) and then filing an I-130 for the IR-1/CR-1 process. It is 100% illegal to have prior intent before POE to overstay. Thus, the following 2 scenerios are always illegal:

• prior intent to marry and stay
• prior intent to not marry and overstay

The overstay part is illegal, not the marriage part.

[Celie 793]

11 hours ago, TM92 said:

@cduran: here is a thread (one of many) concerning marriage in the US with a tourist visa (or VWP) and then filing an I-130 for the IR-1/CR-1 process. It is 100% illegal to have prior intent before POE to overstay. Thus, the following 2 scenerios are always illegal:

• prior intent to marry and stay
• prior intent to not marry and overstay

The overstay part is illegal, not the marriage part.

Like I said, convincing a CO your intention is to come to the US to marry a US citizen AND you won't stay is 99% impossible. This scenario is different. She was already here on a tourist visa visiting him and she didn't come with the intention to marry. It just happened while she was already here. For Shamla, if he requests a tourist visa for the intention to marry, the CO can see that as misusing the visa for intended purposes and it would hurt his chances of actually getting approved later down the line.

 

I'm against ill advising people; therefore, my advice stands that she either travel to Italy and get married, come back and apply for CR1 or apply now for K1 visa and wait for it to be approved. Why try to play with visa boundaries and why advice someone and possibly hurt their chances? If you'd like to do that, go right ahead.

[TM92 527]

2 hours ago, cduran said:

For Shamla

I already addressed a major red flag (one of many) for a denial of a tourist visa by a CO, in that case:

13 hours ago, TM92 said:

For a tourist visa, it could be seen as an illegal attempt to bypass asylum in Italy with an end goal of applying for asylum at US POE.

2 hours ago, cduran said:

if he requests a tourist visa for the intention to marry, the CO can see that as misusing the visa for intended purposes and it would hurt his chances of actually getting approved later down the line.

Let's discuss this quoted part in a hypothetical case: A tourist visa applicant is truthful (always be 100% honest, imo) about their intention to marry in the US and then return abroad to do the CR-1. The CO has a statutory requirement to assume immigration intent (this is always the case). The CO will also consider the totality of the applicant's circumstances. Obviously, the applicant will have a higher bar for proof of ties to return home in order to overcome the statutory assumption; but it is not "99% impossible." This is my point (and I assume @missileman's point).

2 hours ago, cduran said:

This scenario is different. She was already here on a tourist visa visiting him and she didn't come with the intention to marry.

Again, there is no issue with "intention to marry" alone at interview (for tourist visa) or POE (for tourist visa and VWP). For example, @JFH had prior intent to marry and then leave with VWP. And it was 100% legal:

On 9/4/2018 at 6:40 PM, JFH said:

Nothing wrong with getting married here whilst visiting. Plenty of people get married here who don't live here - Thomas Cook Weddings wouldn't be in existence if Brits couldn't come on the VWP to get married in Las Vegas and Disney World whilst on holiday. I got married here on a VWP visit. Arrived on a Tuesday, got the license on the Wednesday, married on the Saturday (our state has a three-day waiting period), returned to the U.K. the following Tuesday. The London embassy even states that this is perfectly acceptable. There is an "urban myth" floating among some users of this forum that if you want to get married in the USA you have to apply for a K-1 and that marrying as a visitor is somehow not permitted.

Edited September 13, 2018 by TM92

[TM92 527]

1 hour ago, Paco415 said:

What I’m concerned about is whether he would be able to re-visit the USA on his B-2 after the I-130 is filed and pending.

Filing the I-130 will not cancel the B-2; only when the CR-1 is approved by the embassy will they cancel the B-2. Only USCs are guaranteed entry to the US. Future B-2 entries will be based on CBP's discretion. To try to convince CBP about his intent to return to his foreign residence, he should travel with evidence that proves that.

[Paco415 60]

32 minutes ago, TM92 said:

Filing the I-130 will not cancel the B-2; only when the CR-1 is approved by the embassy will they cancel the B-2. Only USCs are guaranteed entry to the US. Future B-2 entries will be based on CBP's discretion. To try to convince CBP about his intent to return to his foreign residence, he should travel with evidence that proves that.

This is very helpful, thanks!!