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Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Visa

Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Visa

Old Mar 22nd 2015, 9:47 am
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Default Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Visa

Hi,

Firstly, apologies if this has been answered before. I read the sticky about visiting the US while waiting for a marriage based visa, but it didn't quite answer my question.

I'm a UK citizen, and have been through the application and interview process and now have a K-1 in my passport that must be used before July.

I would like to go over for a short visit next week for Spring Break. My plan is then to return to the UK, finish my job, rent out my flat, and move over permanently in late May or early June.

Does this sound like it will present a problem? I know I can only use my K-1 for one entry, and I want that entry to be in a couple of month's time. If I had to guess, I would say that I just need to stress to the immigration officer that I want to enter on the Visa Waiver Program / ESTA, and not to stamp my visa, but I have no idea how realistic this is.

I have visited plenty of times while waiting for my visa, but this will be the first visit with the visa actually present in my passport.

Many Thanks,

Dan
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Old Mar 22nd 2015, 1:22 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Originally Posted by db1145
Does this sound like it will present a problem?
It will be up to the CBP officer whether or not to allow you to enter on the VWP. If he insists that you enter on the K-1, you need to be prepared to either do that... or go home.


I would say that I just need to stress to the immigration officer that I want to enter on the Visa Waiver Program / ESTA, and not to stamp my visa...
Correct.


... but I have no idea how realistic this is.
Neither do I. That said, I've not heard of anyone not being allowed to... but y'never know.

Ian
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Old Mar 22nd 2015, 2:05 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Originally Posted by ian-mstm
It will be up to the CBP officer whether or not to allow you to enter on the VWP. If he insists that you enter on the K-1, you need to be prepared to either do that... or go home.
Just playing devil's advocate, what would happen if he traveled without the magic white envelope? Surely they wouldn't be able to admit him on the K1 then? So it would either be a VWP admission or get sent home?
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Old Mar 23rd 2015, 12:48 am
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Originally Posted by BunnyGirl
Just playing devil's advocate, what would happen if he traveled without the magic white envelope? Surely they wouldn't be able to admit him on the K1 then? So it would either be a VWP admission or get sent home?
Yes it would. But there is an unquantifiable risk the CBP officer would not accept a VWP entry and so send them home. All traveling without the MWE would achieve is allowing the K1 visa to remain unused.
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Old Mar 23rd 2015, 1:58 am
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Originally Posted by lansbury
Yes it would. But there is an unquantifiable risk the CBP officer would not accept a VWP entry and so send them home. All traveling without the MWE would achieve is allowing the K1 visa to remain unused.
Oh, absolutely, I personally wouldn't risk it. It's horrible being apart but we've all been there and survived!

(Sitting next to my now-husband on the sofa )
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Old Mar 23rd 2015, 3:21 am
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Is this a case where entering through Dublin would be recommended? .... Thereby avoiding the transatlantic flight in case you are denied entry on the VWP.
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Old Mar 23rd 2015, 4:03 am
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

I would tend to lean towards the opinion that it is safest to assume that your next trip to the US should be using your K1. Is it really worth the potential aggravation for a short visit?
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Old Mar 28th 2015, 12:15 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Hi all,

Thanks for the replies.

I decided to risk it, and it was fine. I was subjected to a bit more scrutiny than before I had the visa, which involved being taken to a side room for extra questioning, but the whole process took less than half an hour.

Dan
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Old Mar 28th 2015, 6:09 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Congrats! I probably wouldn't have risked it either, but it's nice it worked out for the best.
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Old Mar 28th 2015, 9:08 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Someone in a different forum years ago asked similar question, and like OP decided to take the risk. Outcome was the same. He was allowed in. So very doable, but with certain amount of risks. Not sure what I would do if I was in OP's shoes. Glad he succeeded.
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Old Mar 28th 2015, 9:44 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

i went whilst my K1 was in process - I cant remember now but they either had that info (not sure how tho) or i told them! either way I was allowed in to visit my fiance without issue i recall

opps just seen you have already been!! glad all was fine
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Old Sep 25th 2015, 3:37 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Hi Dan,

May I ask for a follow up to this?

You say you had to use the K1 visa by July, meaning you had to marry and file for AOS by (end of?) October.

If you've done so already, did you have any problems receiving AOJ? Did they question the previous visit taken during the K1 visa validity and claim you'd already used the K1?

Thanks in advance!

James
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Old Sep 25th 2015, 4:15 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Originally Posted by jamesuk113
If you've done so already, did you have any problems receiving AOJ?
I'm not sure what you're trying to ask, but the sole contractual obligation of a K-1 beneficiary is that you marry the USC petitioner within 90 days of entering the US using the K-1... and not simply with a K-1 visa in your passport. The visa is stamped on entry... if there's no visa stamp, entry did not take place using the visa. So long as you fulfill that one contractual obligation, AOS will proceed normally.


Did they question the previous visit taken during the K1 visa validity and claim you'd already used the K1?
They couldn't possibly have made that claim. The K-1 is a single entry only visa. Had they claimed he used it, it would have been impossible for him to re-enter the US using the same visa.

Ian
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Old Sep 25th 2015, 4:30 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Originally Posted by ian-mstm
I'm not sure what you're trying to ask, but the sole contractual obligation of a K-1 beneficiary is that you marry the USC petitioner within 90 days of entering the US using the K-1... and not simply with a K-1 visa in your passport. The visa is stamped on entry... if there's no visa stamp, entry did not take place using the visa. So long as you fulfill that one contractual obligation, AOS will proceed normally.



They couldn't possibly have made that claim. The K-1 is a single entry only visa. Had they claimed he used it, it would have been impossible for him to re-enter the US using the same visa.

Ian
Hi Ian,

Thanks for the reply. Sorry I mean AOS (Adjustment of Status) not 'AOJ'. It's just I read on another forum that when you go for AOS they might say the first time you entered was under the visa and therefore you're no longer eligible to apply for AOS.

My prospects of doing this very same thing are getting somewhat destroyed on VJ Visit the USA on ESTA with K1 granted - K-1 Fiance(e) Visa Process & Procedures - VisaJourney

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Old Sep 25th 2015, 5:38 pm
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Default Re: Visiting the US on ESTA/visa waiver program before moving permanently on a K-1 Vi

Update as requested:

- I actually entered twice on VWP/ESTA while the K1 was present in my passport. No issues either time (apart from a small delay each time)

- No issues when entering on the K1 proper

- We're now married, and I applied for AOS, AP and EAD shortly after the wedding.

- I have received my AP (and successfully left and re-entered the country using it), and EAD (and am currently working for a US employer)

- I await my green card...
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