Sandygirl

My boyfriend is from Australia. My question is.....can he come to the US on a tourist visa and then we file for a fiance visa once he is here, and then get married when that is approved? or does he have to be offshore when the fiance visa is filed? We are trying to go about it as close to the books as we can without being separated.
Any help would be appreciated, as I am here in Australia right now and we are planning on leaving at the end of Februaury. That is when my tourist visa is up....I will have been here for 6 months. Once we are married in the US we are filing a spousal application for me to return to Australia, where we would like to remain. I am just confused on the US side of immigration.

Thanks in advance!!!!

Caro

If you don't want to live in the US, then just have him come on a visa waiver, get married in the US, and leave for Australia whenever you are finished with the wedding stuffs in the US. The fiance visa is intended more for people who get married in the US and STAY in the US to become permament residents.

When entering on a visa waiver, there is always the risk that the POE officers will suspect immigration intent from your fiance. So, he should make sure to bring plenty of documentation with him to show that he has strong ties to Australia and intents to return there after the wedding (with you): lease, letter from employer, return ticket (although... this is not really a proof). You get the idea.

Caroline

Sandygirl

Thanks Caro........but can anyone answer this for me?
If he does go on a visa waiver and we do get married, we are supposed to leave right after the wedding correct? We won't be filing my spousal application until after the wedding obviously, and I can't go back into Australia until I get approved. He is wanting to stay with me in the states until my approval goes through, which could be anywhere from 4 months on. Is this still possible on a visa waiver or should I still try and bring him in on a tourist and then file for a fiance visa?

Caro

He is not supposed to leave right away. He is supposed to leave at the latest when his visa waiver expires, that is 90 days after entry into the US. It would be a very bad idea for him to overstay!!! So, that will not do it for the 4 months.

For the fiance visa, I believe that you have to apply once you are in the States and depending where you are, it can take from a couple months to close to a year. I am not an expert on the fiance visa, but somebody will be able to give you a better answer. So, you will get to be separated no matter what. Plus I assume that you would like a "nice wedding" if you go back to the States to get married. With the INS in charge of the fiance visa, you can pretty much say goodbye to that as you have only 90 days to get married and the INS is very unpredictable timeline wise. This is why most people get married at the courthouse first to comply with the fiance visa requirement and then sometimes, have a "big" wedding later when they are sure that the fiance(e) will be in the States.

I know nothing about Australian immigration, but your best bet might just be to get married in the courthouse in Australia, and apply for your Australian papers ASAP. Then, have a ceremony/party in the States. That might work out timewise (if you have some time left over on the tourist visa and then he uses the 90 days of the VWP).

Hope that helps,
Caroline

Sandygirl

We were actually originally going to get married here in Australia while I am on my tourist visa, but we were scared of taking the chance. If he enters the US on a visa waiver, and is married to a US citizen then they think we are trying to jump the system, even though we don't plan on staying there. I really need to find out if its possible to change a tourist visa while he is in the states to a fiance visa which hopefully would allow for him to stay 9 months.
Jumping backwards a little bit..........on a visa waiver, I know it is good for 90 days, but couldn't he just fly out the country for a week and then come back or something? How many times can you enter the country on it?

nat

My understanding of the fiance visa is that the "alien" must not be in the US when it is applied for. They can enter the US when the fiance visa has been approved and then must get married within 90 days of entry.

I travelled fairly frequently on the visa waiver to visit my then boyfriend (2-3 times a year for anything up to 4 weeks at a time). I believe from reading that it would not be a good idea to come for the full 90 days, then leave for a week and return again for another say 90 days as this may be considered visa fraud.

After marrying (in the US), I returned to my own country and rather than risking travelling on the visa waiver (as you are yourself concerned) I applied for a tourist visa B1/B2 on recommendation from a lawyer (to show that I am married to a US citizen and not hiding the fact but by getting the approval I have clearly shown that I have enough ties in my own country to show that I did not intend to stay in the US). This worked for me and I was even questioned at the POE as to why I obtained the tourist visa and I simply told them I was advised to because I was married to a US citizen. I also visited Canada whilst there and had the same question at the border there. But again they allowed me back in the US.

Hope that helps.

Caro

Applying for a fiance visa while he is in the US will not work if he comes on a visa waiver. The fiance visa takes more than 90 days from start to finish. I think there is a distinction between legal status and visa that does not seem to be clear from your post. The visa is only for entering the US only. The legal status is the status that you have in the US. You can not enter as a tourist on a tourist visa and then change the status to have a fiance status. If you want to have a fiance status, you should enter on a fiance visa which gives you a legal status in the US for 90 days I believe.

Now, for the hoping back and forth on the visa waiver, that would probably work for some time, but then they might suspect him of having an immigrant intent at time of reentry.

The advice to get a tourist visa is not a bad one, but you are not sure to be granted one. I am not sure if the US would accept the idea that your fiance has still strong ties to Australia if he is spending 4 months in the US. This is a judgement call from the officer that delivers the visa.

If you could get the ball rolling with the Australian immigration as soon as possible, then your then-husband will probably be able to be with you in the States on a visa waiver for 90 days, since you mentioned that the Australian immigration takes 4 months.

If you really want to be sure that he will be allowed in the US, you can go or call the US consulate that has jurisdiction over where you live and explain them the situation and ask them what they recommend and whether they think that your fiance has a good chance of getting a tourist visa. Maybe your fiance might get lucky and get a 6-months tourist visa, which will solve a lot of problems (wedding in the US and Australian paperwork)...

Caroline

Just Jenney

I'm not an expert by any means, but I am going through the fiance visa right now with Mark, so here goes...

Remember that the fiance visa is obtained through a couple of stages. The first stage is the USC filing the I-129F Petition for Alien Fiance. Once this petition is processed and approved, the consulate in the foreign fiance's country is notified of the approval, which begins the second stage. The foreign fiance then completes and submits more documentation (this time to the consulate), has a medical done and has an interview at the consulate. It is at this point that the foreign fiance obtains the K-1 Fiance Visa.

So, let's look at the I-129F Petition stage first. On the petition itself, Question B-13 (page 1) reads as follows:


"If your fiance(e) is currently in the US, complete the following:
He or she last arrived as a (visitor, student, exchange alien, crewman, stowaway, temporary worker, without inspection, etc.)

Arrival/Departure Record (I-94) .............................. Date arrived (M/D/Y)

Date authorized stay expired, or will expire, as shown on Form I-94"


So, can the foreign fiance be in the US when the I-129F Petition is submitted? YES.

However, since the second stage of the fiance visa process takes place in the foreign fiance's home country, he must go BACK to Oz in order to complete the process. He CANNOT have his fiance visa interview in the US. But (at least in my mind) that doesn't mean he shouldn't be able to stay in the US -- LEGALLY -- for as long as possible while the petition process is underway.

Now, you didn't say where you're from so we don't know which service center you'd be applying to. Some SCs take longer than others to process the I-129F Petition. If you can go through Vermont, it's *possible* that you could be done with the whole process within 4-5 months -- however, the VWP is only good for 90 days. I STRONGLY advise against him staying 90 days, leaving for a short spell and then reentering, especially if you choose to submit the I-129F Petition while he is in the country. So.... where does that leave you?

This is one of the few circumstances where I could justify someone entering the US and getting married without a fiance visa. Why? Because ultimately your plans are NOT to settle in the US, but rather in Oz. Unfortunately, you're going to be separated no matter what -- his VWP expires before the fiance visa process is complete AND before the Oz spousal visa is complete. By applying for the fiance visa, you're just adding several months on to your waiting time, which is already 4+ months already.

It would be simpler, faster, and less expensive for him to enter under VWP -- with TONS of proof that he's returning to Oz, as Caro said -- get married, then apply for the Oz spousal visa ASAP. Because his VWP will expire before you get your spousal visa, you'll have to be separated, but it's worth it in the long run. What's a few weeks apart compared to a lifetime together?

Anyway, I'll reiterate that I'm not lawyer or anything, those are just my two cents... Good luck!

~ Jenney

Caro

I totally agree with your perspective that a fiance visa will not be very useful in that case. I would almost think that, instead of getting married in the US, it would be even better timewise (and separation wise) for them to get married in Australia and have him enter on a visa waiver or tourist visa if she wants to be extra careful with TONS of documentation. She should probably no matter what we are saying contact the consulate and confirm this with them, but that is what would make the most sense.

Caroline

Sandygirl

Thanks so much for the help.......I haven't decided yet whether we are going to try and get him a tourist visa or just go on a visa waiver ( it all depends how long it takes for a tourist visa to process.....unclear if it can be done within a week or so ). Anyway.....thanks again for all the great ideas!