christmasoompa

That's not correct. The OP's son will be classed as an immediate relative once they're married. But both will need to be petitioned for, and both will need to go through consular processing and will then enter on immigration visas and become 'green card holders' the moment they arrive.

porkedpie

Fair, I am not an immigration lawyer.
I will simply note the following things:
1. USCIS memo that immediate relatives of US Citizens are allowed to apply for adjustment of status having entered under the VWP https://www.uscis.gov/sites/default/..._Effective.pdf
2. INA section 201(b)(2)(A)(i) defines an immediate relative as "children, spouses, and parents" but not step-children.
3. Eligibility for AOS depends on having a legal entry. Entering legally under WVP does not allow you to have immigration intentions. In some cases intentions evolve over time. I do not know the particulars of if this would apply to OP.

newacct

INA 101(b)(1)(B) defines "child" for immigration purposes (but not nationality purposes) to include a stepchild, if the parent and stepparent married before the stepchild turned 18.

SanDiegogirl

If the OP intends to get married in the US and then stay, isn't this exactly what the statement above says you are not allowed to do.

Sure, some people have entered the US on the VWP and then applied for AOS and been successful - others haven't because the judge did not believe their staying was a 'spur of the moment' decision.
If your application does not succeed, you are out and not allowed to use the VWP again. Something to think about.

Your link detailing VWP and AOS procedures is mainly about the removal process and the submitting of the I-485 during the process.

S Folinsky

Before I retired, I did practice immigration law for a long time.

In her first post, OP said her son was 11 years old. Not 18, not 19, not 20 - but ELEVEN.

You take note of INA 201(b)(2)(A), but ignore the definition at INA 101(b). (INA 203(d) should also be examined for the breadth of “follow to join.” That section is the reason a separate I-130 is required). If son has reached 18 but still under 21, that is a situation where the K-1/2 is a very good idea.

Section 245 requires “inspection” followed by “admission or parole.” To complicate things a tad the admission language in 245 predates the current version of 101(a)(13) by some years. So reading of the naked current language without knowledge of the case law can lead to an erroneous conclusion.

See this AILA memo

Bugzaboo1985

Okay so if we apply for a fiance visa first then what would be the process once we are married? Would I have to come back to the UK or could I stay and do the adjustment of status while in the country still?

christmasoompa

If you're getting married in January you don't have time to do a fiancée visa - that takes around a year as well.

But if you did decide to postpone the wedding and go down that route, then once that's been approved you'd move to the US, have 90 days to marry and apply for AOS and then you'd again not be able to work or leave the US for a while. So in all honesty, I can't see why anybody would choose the K1 visa route over the CR1 if that's an option, they both take about the same amount of time and it's far better in the long run to do the CR1 IMO.

Bugzaboo1985

Well January is a loose plan nothing is booked, we were going to go to the court house. Its so confusing. We have no idea what to do for the best.

christmasoompa

It's your call ultimately. Both routes will take about the same amount of time, so you both need to decide which route works better for you.

K1 is more expensive.
You'd have time when you can't work and are stuck in the US before you receive AP/EAD.
You'd have to adjust status to get a green card which just adds another hassle factor to get that status (which with the CR1 you'd have on arrival)

CR1 is cheaper.
Once you arrive you'll be a legal permanent resident ('green card' holder), work authorised and can leave anytime if needed.
I don't know but I'm guessing it's probably easier to do things like get a driving licence, open a bank account etc as a green card holder rather than waiting for that with the K1.

Bugzaboo1985

Ok that's great, think the CR1 route will be better for us. I have also just read that getting married to a us citizen on an esta isn't allowed. Is that right? Or is it more of a suggestion?

christmasoompa

Getting married is allowed, that's no problem at all. It's only adjusting status if you entered as a visitor on the VWP but intended to stay that isn't.

So your original plan to go in January, get married and then return to the UK to file the I-130 and get a spousal visa is fine.

Good luck.

Bugzaboo1985

Thank you so much!! I really appreciate all the advice

SanDiegogirl

Whichever route you go (fiance or marriage visa ) there is a wait; where you are in the UK waiting for your visa to be processed.

Pulaski

It's totally allowed/ legal, I did it! .... but many people seem to think it isn't legal.

Though as noted by SDG above, entering the US on an ESTA with the intent of remaining after marrying is not legal, which I think is where people get confused. If you marry a USC while you're in the US on an ESTA, and then you leave again, that is absolutely legal - as I said, I did it myself.

And for completeness, there is no US visa type to enter the US, get married, and then leave again. Whereas in the UK your fiancé would be required to have a visa to visit, get married, and leave, even though he could (as a USC) visit the UK, and leave (without getting married) without a visa.