AOS from ESTA or continue K1 process

[LibertyBears 22]

Hi all,

 

Hope everyone is well in these uncertain times.

 

Just to give some core information:

 

I arrived to US on March 25th with an ESTA to visit my fiance after not seeing each other for a year.

We are in process of applying for K1 visa. We just received our NOA2 approval last week in the mail. HURRAH!

 

I am with UK embassy and they are not doing K1 visas at the moment so I am in the middle of changing embassy to the one in Hong Kong as I have legal residency visa there until October and they are supposedly still running operations as normal.

I have sent a request on NVC public inquiry form and mailed a letter to Hong Kong's embassy following their advice on their website for changing embassies.

 

After receiving the NOA2, I have been following and reading on lots of forums here on VJ and I saw that many people are marrying whilst on their respective visas and filing for AOS.

 

In terms of money and travel, we are aware that I would be unable to leave the US nor work until EAD/AP is approved.

I am unemployed and the past year has simply been me visiting my family in Hong Kong and spending time with them whilst waiting for the K1 to pend.

I am here currently visiting to minimise the time we have to spend apart during the K1 application and after marrying with K1, we plan to file for AOS.

 

We are so close to the end of the K1 visa process now that we are unsure if it's best to return back to Hong Kong (if the embassy change happens, if not will have to wait for UK to resume their visa procedures) to continue the K1 with the medical/interview and then return back to the US to file for AOS.

Or marry now that I am here and file for AOS, I have seen numerous members say that this is perfectly legal however the only issue is that we would be abandoning an ENTIRE K1 process. 

 

Our questions are:

1. Which is the best option for us? Stick with the K1 or marry now and file for AOS ?

2. Would having a pending K1 affect AOS from esta? - in terms of the way USCIS views it as marriage intent etc

 

Our only goal is to be together as soon as possible legally and without a risk of being denied.

It would be devastating if anything were to happen with our applications and we have to be apart indefinitely again.

 

 

(If we had a time machine, We definitely would have married during my last visit here and filed for CR1 spouse visa instead, we went the K1 route as we thought it would be a shorter timeframe being apart from one another however Covid-19 has really thrown some life curveballs at all of us)

Edited April 6, 2021 by LibertyBears

[aaron2020 11,651]

Hi,

 

Get marry and file for AOS.  The K-1 and entering on ESTA will have no effect on getting a green card.

 

USCIS can not deny AOS for immigrant intent when it's a spouse of a US citizen unless USCIS can prove that you lied to enter the US.

Best wishes for a happy life together. 

[LibertyBears 22]

 

2 minutes ago, aaron2020 said:

Hi,

 

Get marry and file for AOS.  The K-1 and entering on ESTA will have no effect on getting a green card.

 

USCIS can not deny AOS for immigrant intent when it's a spouse of a US citizen unless USCIS can prove that you lied to enter the US.

Best wishes for a happy life together. 

Would there be any concerns regarding marrying now as soon as possible or to wait for 60 days or overstay and wait over 90 days?

I've seen numerous comments saying anything before 90 days is seen as suspicious and it's a supposed none confirmed way that USCIS scrutinises ? 

 

[aaron2020 11,651]

2 minutes ago, LibertyBears said:

 

Would there be any concerns regarding marrying now as soon as possible or to wait for 60 days or overstay and wait over 90 days?

I've seen numerous comments saying anything before 90 days is seen as suspicious and it's a supposed none confirmed way that USCIS scrutinises ? 

 

USCIS doesn't care.  Immigrant intent can't be used against you.  

[payxibka 10,047]

3 hours ago, LibertyBears said:

 

Would there be any concerns regarding marrying now as soon as possible or to wait for 60 days or overstay and wait over 90 days?

I've seen numerous comments saying anything before 90 days is seen as suspicious and it's a supposed none confirmed way that USCIS scrutinises ? 

 

Stop reading those numerous comments. 

[Wuozopo 4,293]

8 hours ago, LibertyBears said:

Our questions are:

1. Which is the best option for us? Stick with the K1 or marry now and file for AOS ?

2. Would having a pending K1 affect AOS from esta? - in terms of the way USCIS views it as marriage intent etc

1. If I were in your shoes, I would marry and adjust status. You are not near the finish line with a K1. You do know to submit an I-130 petition along with AOS/EAD/AP applications. 
 

2. I truly don’t think “they” look at or ponder intent. They look at the qualifications for adjustment of status.

[JFH 12,191]

There’s really not much difference so you may as well stay, marry and file for an adjustment of status. You correctly stated that you won’t be able to leave or work for many months, but that is the same with a K-1 too. If you were close to the end of the CR-1 then I would say it’s worth continuing with the visa for the benefits it brings. But there are no such benefits with a K-1. You would be returning home to wait your turn to be interviewed for an overpriced tourist visa to come here to marry and adjust. Now that you are here, you can do that anyway. 
 

You will need to file an I-130 as well as the usual AOS forms but apart from that, it’s the same process as if you had arrived with a K-1. 

[Sinead91 250]

Hey OP! I arrived last year in March with my noa2, came over on my ESTA from Ireland and decided to withdraw my k1 and got married. I received my Green Card I’m Feb this year, no issues at all  

 

if you can manage not going home and being unemployed for a good few months, go for it! 

[Crazy Cat 42,303]

22 hours ago, LibertyBears said:

I've seen numerous comments saying anything before 90 days is seen as suspicious and it's a supposed none confirmed way that USCIS scrutinises ? 

Where have you seen these comments?  FB, Reddit?  Those comments are absolutely false.  
 

[molehills 68]

57 minutes ago, Lucky Cat said:

Where have you seen these comments?  FB, Reddit?  Those comments are absolutely false.  
 

I've heard similar things from immigration lawyers regarding the 90 days/overstay. Namely, the lawyers who're spearheading a few of the recent lawsuits against the travel bans, K1, and whatever other cases they may have.

[Crazy Cat 42,303]

9 minutes ago, JCB86 said:

I've heard similar things from immigration lawyers regarding the 90 days/overstay. Namely, the lawyers who're spearheading a few of the recent lawsuits against the travel bans, K1, and whatever other cases they may have.

They are incorrect.  There is no 90 rule for USCIS.  

[molehills 68]

2 minutes ago, Lucky Cat said:

They are incorrect.  There is no 90 rule for USCIS.  

Hm. Well if that's the case, why don't more people do this? Wouldn't this circumvent the K1 or CR1 visas and make them pointless? (least for ESTA countries) 

 

I hope I don't come off as combative,  I'm just curious.

[Crazy Cat 42,303]

5 minutes ago, JCB86 said:

Hm. Well if that's the case, why don't more people do this? Wouldn't this circumvent the K1 or CR1 visas and make them pointless? (least for ESTA countries) 

 

I hope I don't come off as combative,  I'm just curious.

It is illegal to enter the US via ESTA with the intent to stay and adjust status. Thus, you cannot legally circumvent the K-1 process as such.   If a person is already inside the US, then adjustment of status might be available.  Certain visitors cannot adjust status at all after entering the US via ESTA. 

Edited April 7, 2021 by Lucky Cat