sir_eccles

This is post #11

It all comes down to your personal risk tolerance and being fully informed of those risks. It seems to me from the above that the OP was not fully informed by his counsel.

Noorah101

It's only proper if you did not have the intent to adjust status before entering the USA. Then, yes, it's legal and proper. However, many people are not aware that if the AOS is denied, it means no appeal and it means being removed from the USA. Many people also are not aware that the decision lies solely with the adjudicating officer. Even if you did not have the intent when you entered the USA, if the officer believes you did, you can be denied. Granted, most people get approved...but if you are the unlucky one to get denied, your life in the USA is ruined.

I agree that if someone goes through with AOS from VWP, they have to be aware of all the facts. In this case, the OP was not aware. Most of us here try to discourage people from doing an AOS from VWP case, so that the intending immigrant will have a better chance at immigrating by doing the Immigrant Visa process instead.

Rene

chips

hey all,
many thanks. esp Rene for the invaluable advice!
the more I think about this it makes more sense to go the long route. oh well. gotta wait it out. Canada aint that bad

chips

just another quick one -
chatting with my girlfriend about a possible K-1 option.

so, say I go back to Canada. save up some cash, then come back down to the US in a few months on the K-1 financee`visa.
We get married straight away

then... I stay in the US for a few months? the important question for the K-1 is -
Am I forced to stay in the US when I come in on a K-1? and for how long.
do they issue a temp work permit after a 3 months ..sorry I've forgotten the official term
and travel permit allowing me to come and go while I wait on the green card?
from my notes I've written down 9 months for expected GC going the K-1 route.

ian-mstm

People are funny aren't they? When you go to a doctor and don't hear what you want to hear, you seek a second opinion. When you do hear what you want to hear... you take it as absolute gospel, whether it's actually correct or not.

Ian

ian-mstm

You are free to leave at any time... after all, you're not a prisoner. However, if you enter on a K-1 visa and leave prior to getting Advance Parole, then you will not have a means of returning to the US... and you will have to start the process all over again.


It takes about 90 days to get Advance Parole (AP) after you file for AOS.


Employment Authorization Document (EAD)... also about 90 days after you file for AOS, yes.


Yes... although you must understand that being parolled into the US isn't quite the same, legally, as being admitted into the US. However, 99.9% of people don't have any issues using AP.

Ian

chips

K-1 sounds like a great option for us!

Noorah101

You will not be returning to the USA in a few months on the K-1 visa. The K-1 visa process takes about 6 - 8 months to process. So, if you leave the USA in April 2012, most likely you'll be returning to the USA on the K-1 visa around Oct - Dec 2012. You can visit the USA in the meantime, though, while it processes.

Yes, after you enter the USA on the K-1, you must marry within 90 days and then file your AOS package. You must stay in the USA until you receive the AP document (about 90 days after filing AOS). If you leave the USA before having AP in hand, you abandon your AOS process.

You're not forced to stay, no. But if you leave without having AP in hand first, you abandon your AOS process, making all your K-1 efforts a waste of time and money.

EAD. About 90 days after filing AOS.

AP. Also about 90 days after filing AOS.

Probably longer than that. It takes about 6 - 8 months for the K-1 visa, and then it takes about 6 months to get your green card, after having married and filed AOS.

Rene

Noorah101

Why does the K-1 sound better than the Immigrant Visa? If you marry now and get an Immigrant Visa, you'll become a US PR as soon as you enter the USA, no need to file AOS, you can work from Day 1, etc. It's a better visa overall, and you have the opportunity to do that process if you marry on this visit to the USA.

If your main concern is getting the green card in hand, the Immigrant Visa (for spouse) is faster than the K-1 visa (for fiance). If your main concern is working ASAP after entering the USA, again the Immigrant Visa is better.

If your main concern is to physically be together ASAP, the K-1 is probably a couple of months faster. But, in the long run, more hassle as you have to file AOS to get your EAD, AP, and green card, AFTER you arrive on the K-1.

With both the K-1 and the Immigrant Visa processes, you can visit each other while the process goes on.

Rene

chips

ok, still might work.

my GF can come up to Canada with me for 6 months while we wait on the K-1 processing?
(she's allowed to visit Canada for 6 months as a USC)
or does she need to be present in the US during this period?

chips

just read your reply after I posed Rene.
thanks. immigrant visa maybe best option if this whole thing is going to take a while anyway.
got excited by the prospect of K-1 because didn't realise that it was a 6-8 month processing time before I enter.

materialcontroller

With respect, shouldn't everyone be spelling out the pros and cons then letting the applicant themselves decide which course of action to take? Far too often on this forum I get the impression that people here are trying to force their accepted view of things. Whether it's calls to consult an attorney over the tiniest details (something which is promoted way too readily here) or the repeated mantra that people from VWP countries shouldn't apply for B2's. Just give people the information and let them make their own choices rather than trying to police the outcome of every immigration case that turns up here.

Noorah101

I guess I read things differently, because I think that's exactly what we do here...giving the information so they can make their own decision what to do. I agree, people should be informed. I agree that they can choose whichever path they prefer.

Rene

jeffreyhy

The lawyer gave you good advice, and the risk is minimal. Immigration law does provide for a person who enters the US as a nonimmigrant with the intention of leaving after their visit, but who subsequently changes their mind and decides that they want to immigrate, to do so.

What the law does not allow is for a person who enters as a nonimmigrant with the preconceived intent of staying as an immigrant to immigrate. But, most people who have such preconceived intent and try to immigrate by adjusting status are successful, only a few fail. This is why I say that the risk is minimal.

Rene was correct in saying that it's what the USCIS case officer believes about your intentions that will determine the outcome. The record is clear that they tend to believe people who say they entered with nonimmigrant intent and subsequently changed their mind. But, in those few cases where the case officer does not believe, the consequences can be severe. It's a low risk, high penalty proposition.

In the circumstances that you have presented for yourself, "this route" as Peaksy calls it, is perfectly acceptable and well established route to immigration. My suggestion is that you hire the attorney to work with you in putting together your application to adjust status, including attending the interview with you, to help ensure that you don't inadvertently say something 'the wrong way' and to give yourself the best possible chances of success.

Regards, JEff

jeffreyhy

I think you are incorrect in your use of the word "force". Posters give their recommendations and their reasons for them. In most every thread we see a variety of opinions. It is up the each person to separate the wheat from the chaff and make up their own mind as to what course of action they will pursue.

I also think that "the tiniest details" are exactly what calls for a consultation with an immigration attorney. Most posters to this forum are familiar with the broad overview but not with the the little details that can make or break a particular individual's case.

Regards, JEff