SecretGarden

Hello all,
The question I'm about to ask is a purely hypothetical one, and has arisen from reading about the varied situations in which people on this board find themselves.

Here goes: I'm wondering what the advantage is to going the K-1 route with the waiting for approval (especially if dealing with NSC!) vs. coming here as a visitor, marrying here in the US and then applying for adjustment of status after the marriage? ***Don't get me wrong, please***.......I do understand that if a fiancee were to come here on the visa waiver program *with the intent to marry being kept secret*, that would constitute fraud with the INS and that person would be subject to a ban as a result of that fraud, correct?

Also, if the fiancee were to enter as a visitor, ends up getting married, and applies to adjust status, is there any proof required that he didn't enter with the intent to marry? How in the world would one go about proving something like that?

Although my fiancee and I will go the legal and ethical route and use the K-1 option eventually, I guess I'm wondering what prohibits most people from just coming over, getting married and going through the process from that point on? You'd be able to work once you had your EAD and SSN, and you'd be able to be living together, and get started with your life together without the waiting.

I feel like I must be missing something here---there has to be some distinct disadvantage to doing it this way--although I've read several posts from people who didn't intend to marry immediately, determined while visiting that it was the right thing for them and haven't had any problems at all.

Sorry if this seems like a silly question, but I just had to ask. Be gentle with me.....
SecretGarden

Rete

It is not a silly question and it is asked on the average of once a month for the last four odd years.

It is not illegal to do what you hypothetically outlined. It is legal and you can and will adjust status. If INS wanted to be bitchy, they could ask for proof that your ties to your home country were intact at the time of the spur of the moment marriage. This could be a rental lease, employer letter, bank accounts, etc. And then you show that you severed the ties after the marriage.

I know that I will be flamed for that paragraph/attitude but it is the truth. It is not usual that INS will ask for this proof. Especially not if the wedding were a small intimate one.

I recall how I was told vehemently in '97 that I COULD NOT do what you are asking about because there was no way to adjust status. And then someone decided to read the instructions on the I-485 and said "Well looky here we made a mistake. You can do that and INS will let you."

As with all things involving a government agency, there are risks involved and situations that you don't want to encounter. But the method you described is the method most used by people marrying USC.

Rete

Paulgani

    > Originally posted by SecretGarden:
    > > Hello all,
    > >
    > > Also, if the fiancee were to enter as a visitor, ends up getting
    > > married, and applies to adjust status, is there any proof required
    > > that he didn't enter with the intent to marry? How in the world would
    > > one go about proving something like that?

The concern is NOT that he didn't have the intent to marry. That issue was
resolved over 20 years ago in a famous BIA case. You can marry one day
after entry as a tourist, with a 500 person wedding planned a year before,
and still file and receive AOS with little/no risk.

The concern has to do with ENTRY to the U.S. If the CO or INS knows that
you intend to marry and AOS as a tourist, they will deny you a visa and/or
entry into the U.S.

That said, in many instances, especially with people from Canada or Visa
Waiver countries, you are not asked about your intentions at any time. If
this is your experience, you're safe.

You should never lie about your intentions (or material facts, such as
having a fiance in the U.S.) to a CO or INS official. This is grounds for a
permanent ban from the U.S. If they never ask you about your intentions,
then you're fine.

Paulgani

SecretGarden

Thanks Paulgani and Rete for your responses. Ok, I know I'm really nitpicking here, but a further question then. Both times that he has been here to visit me (coming from the UK) he has been asked these questions: "what is the purpose of your trip?", to which he answered, "visiting friends"..."how long are you planning to stay in the US?" "just over a week", and "what is the address where you'll be staying" and gave my address in the US.

So, he answered truthfully that the purpose was to visit friends, and that he was planning to stay just over a week, and had a return flight booked. If next time he gets here and the scene plays out the same, and we decide to marry, has he actually told a LIE?

Again, I want to make it clear that we are ***NOT*** planning to use this method AT ALL, but I'm just curious that if it is as simple as a "they don't ask, you don't tell" policy, then why are we all going the K-1 route? It's got to be harder than it seems to do it the visitor/get married way, doesn't it?

The only thing I can really come up with is that if you do it this way, you don't have Advance Parole and it would be much harder to try to sever your legal ties while over here in the US, and if you went K-1 you would have some time to prepare and move toward that before leaving. How long does Advance Parole usually take to get approved? Even if you went the K-1 route there is a length of time before you'd be able to go back to tie up loose ends if need be.

Sorry for the repeated questions, and it does read as if I'm trying to be dishonest in some way, which we're not!!!! I'm just trying to make some sense of it all! Thanks in advance for any further replies.
SecretGarden

Ronald Austin

Never, ever lie to INS. Answer the questions truthfully, just as you said.
However, I would never volunteer any info they didn't ask for.
Ron


"SecretGarden" wrote in message
news:446615.1034863553@britishexpats-
.com...
    > Originally posted by Paulgani:
    > > > Originally posted by SecretGarden:
    > > > > Hello all,
    > > > >
    > > > > Also, if the fiancee were to enter as a visitor, ends up
    > > getting
    > > > > married, and applies to adjust status, is there any proof
    > > required
    > > > > that he didn't enter with the intent to marry? How in the
    > > world would
    > > > > one go about proving something like that?
    > >
    > > The concern is NOT that he didn't have the intent to marry. That
    > > issue was
    > > resolved over 20 years ago in a famous BIA case. You can marry one
    > > day
    > > after entry as a tourist, with a 500 person wedding planned a
    > > year before,
    > > and still file and receive AOS with little/no risk.
    > >
    > > The concern has to do with ENTRY to the U.S. If the CO or INS
    > > knows that
    > > you intend to marry and AOS as a tourist, they will deny you a
    > > visa and/or
    > > entry into the U.S.
    > >
    > > That said, in many instances, especially with people from
    > > Canada or Visa
    > > Waiver countries, you are not asked about your intentions at any
    > > time. If
    > > this is your experience, you're safe.
    > >
    > > You should never lie about your intentions (or material facts, such as
    > > having a fiance in the U.S.) to a CO or INS official. This is
    > > grounds for a
    > > permanent ban from the U.S. If they never ask you about your
    > > intentions,
    > > then you're fine.
    > >
    > > Paulgani
    > >
    > Thanks Paulgani and Rete for your responses. Ok, I know I'm really
    > nitpicking here, but a further question then. Both times that he has
    > been here to visit me (coming from the UK) he has been asked these
    > questions: "what is the purpose of your trip?", to which he answered,
    > "visiting friends"..."how long are you planning to stay in the US?"
    > "just over a week", and "what is the address where you'll be staying"
    > and gave my address in the US.
    > So, he answered truthfully that the purpose was to visit friends, and
    > that he was planning to stay just over a week, and had a return flight
    > booked. If next time he gets here and the scene plays out the same, and
    > we decide to marry, has he actually told a LIE?
    > Again, I want to make it clear that we are ***NOT*** planning to use
    > this method AT ALL, but I'm just curious that if it is as simple as a
    > "they don't ask, you don't tell" policy, then why are we all going the
    > K-1 route? It's got to be harder than it seems to do it the visitor/get
    > married way, doesn't it?
    > The only thing I can really come up with is that if you do it this way,
    > you don't have Advance Parole and it would be much harder to try to
    > sever your legal ties while over here in the US, and if you went K-1 you
    > would have some time to prepare and move toward that before leaving.
    > How long does Advance Parole usually take to get approved? Even if you
    > went the K-1 route there is a length of time before you'd be able to go
    > back to tie up loose ends if need be.
    > Sorry for the repeated questions, and it does read as if I'm trying to
    > be dishonest in some way, which we're not!!!! I'm just trying to make
    > some sense of it all! Thanks in advance for any further replies.
    > SecretGarden
    > --

Paulgani

"SecretGarden" wrote in message
news:446615.1034863553@britishexpats-
.com...
    > Thanks Paulgani and Rete for your responses. Ok, I know I'm really
    > nitpicking here, but a further question then. Both times that he has
    > been here to visit me (coming from the UK) he has been asked these
    > questions: "what is the purpose of your trip?", to which he answered,
    > "visiting friends"..."how long are you planning to stay in the US?"
    > "just over a week", and "what is the address where you'll be staying"
    > and gave my address in the US.
    > So, he answered truthfully that the purpose was to visit friends, and
    > that he was planning to stay just over a week, and had a return flight
    > booked. If next time he gets here and the scene plays out the same, and
    > we decide to marry, has he actually told a LIE?

If he already decided to marry prior to his statements, yes, of course he
lied!

If he never had any intent to marry, but changed his mind after he arrived,
then no, he did not lie.

However, *proving* to the INS that he didn't lie, but instead changed his
mind after arriving, can be difficult. For example, if he had already sold
his house, quit his job, closed bank accounts, and brought all of his money
to the U.S., well, that's a pretty good evidence of his intent at entry to
marry and stay. If those actions are done later, after marriage, AOS, and
AP, it would help demonstate the opposite intent.

There are guidelines in the FAM that imply waiting 60 days before marrying
will clear him of statement intent issues. Note, these guidelines are NOT
legally binding to the INS, although the INS has used/applied them in the
past. Waiting 60 days will likely *reduce* your risk, but it will not
eliminate it. You can eliminate it by not lying the in first place!

Repeat: DON'T LIE and think waiting a given amount of time will eliminate
your risk. It won't.

Read this thread:

http://briti-
shexpats.com/forum/showthread.php?s=&threadid=100004

    > The only thing I can really come up with is that if you do it this way,
    > you don't have Advance Parole and it would be much harder to try to

Yes, of course you can get AP doing it this way too! AP is available to
anyone who applies for AOS (unless you have accumulated > 180 days of
unlawful presence, blah blah blah for any pedantic sticklers out there...)

Paulgani

Ronald Austin

Are there cases of denied AOS given entry on other than K visa and
subsequent marriage?


"paulgani" wrote in message
news:[email protected]
m...
    > "SecretGarden" wrote in message
    > news:446615.1034863553@britishexpa-
    > ts.com    ...
    > > Thanks Paulgani and Rete for your responses. Ok, I know I'm really
    > > nitpicking here, but a further question then. Both times that he has
    > > been here to visit me (coming from the UK) he has been asked these
    > > questions: "what is the purpose of your trip?", to which he answered,
    > > "visiting friends"..."how long are you planning to stay in the US?"
    > > "just over a week", and "what is the address where you'll be staying"
    > > and gave my address in the US.
    > >
    > > So, he answered truthfully that the purpose was to visit friends, and
    > > that he was planning to stay just over a week, and had a return flight
    > > booked. If next time he gets here and the scene plays out the same, and
    > > we decide to marry, has he actually told a LIE?
    > If he already decided to marry prior to his statements, yes, of course he
    > lied!
    > If he never had any intent to marry, but changed his mind after he
arrived,
    > then no, he did not lie.
    > However, *proving* to the INS that he didn't lie, but instead changed his
    > mind after arriving, can be difficult. For example, if he had already
sold
    > his house, quit his job, closed bank accounts, and brought all of his
money
    > to the U.S., well, that's a pretty good evidence of his intent at entry to
    > marry and stay. If those actions are done later, after marriage, AOS, and
    > AP, it would help demonstate the opposite intent.
    > There are guidelines in the FAM that imply waiting 60 days before marrying
    > will clear him of statement intent issues. Note, these guidelines are NOT
    > legally binding to the INS, although the INS has used/applied them in the
    > past. Waiting 60 days will likely *reduce* your risk, but it will not
    > eliminate it. You can eliminate it by not lying the in first place!
    > Repeat: DON'T LIE and think waiting a given amount of time will eliminate
    > your risk. It won't.
    > Read this thread:
    > http://bri-
    > tishexpats.com/forum/showthread.php?s=&threadid=100004
    > > The only thing I can really come up with is that if you do it this way,
    > > you don't have Advance Parole and it would be much harder to try to
    > Yes, of course you can get AP doing it this way too! AP is available to
    > anyone who applies for AOS (unless you have accumulated > 180 days of
    > unlawful presence, blah blah blah for any pedantic sticklers out there...)
    > Paulgani

SecretGarden

(Waving white flag) Ok, OK! We won't, we won't! We promise! :scared: LOL. Seriously, I do appreciate all the responses to this question and I want to reiterate that we never intended to use this method of entry....I was just curious, and thought maybe I was missing something. Please don't mistake my asking the question for an intent to defraud. We both understand that our interaction with the INS or any governental agency is serious business and not to be taken lightly in any way! We have no intention of risking our entire life together simply to avoid getting stuck in the black hole of the NSC.

Thanks again for all your responses, and for the link to your essay, Paulgani.....much appreciated!
SecretGarden

tparrent

I am going to take a slightly different tack on this. Since your beau can (relatively) freely travel to the U.S. to visit you as a "friend", I say do the visiting as often as possible.

Sure, answer the questions truthfully but once you cross that border if you THEN decide to marry at that time I say GO FOR IT.

Many of us are in a less flexible position because of the home country of our fiancees. Mine is from China and there is almost NO chance that a young, single Chinese woman is going to be granted a tourist visa in the first place. I even offered to post bond guaranteeing that she would return home (and she would have too - honest) while we finish the legal process but there was still no way.

Here's the funny part. If a Chinese woman wants to tour America, the U.S. govt is convinced she is going to get married and stay here. If she actually gets engaged while in China and endyures a year of waiting to get here legally, the first and most important question they ask is : are you REALLY going to get married?

Hey, I live under the system like the rest of you and I personally would NEVER lie to the INS or any other authority for that matter. However, if Ling came over as a tourist, answered all the questions honestly and I had not previously promised NOT to marry her on that trip...well, I can hear the hypothetical church bells ringing


I say invite your honey over for a visit and if your intentions change during the visit.....I'll be the first to cast rice rather than aspersions.

SecretGarden

Thanks for the response, t...this made me smile. I'll send you and Ling an invitation (someday....sigh)!
SecretGarden

Paulgani

"Ronald Austin" wrote in message
news:u1Cr9.4214-
[email protected]...
    > Are there cases of denied AOS given entry on other than K visa and
    > subsequent marriage?

Of course. I'm sure it happens all of the time, for lots of different
reasons (AIDS, criminal background, fake marriages, etc....)

But, if you are asking, does it happen because of "preconceived intent", the
answer is no (or, more correctly, it shouldn't - a given INS Adjudicator can
always make a mistake). On the other hand, does it happen because the alien
makes a "material misrepresentation" in order to obtain a visa or entry,
then the answer is most certainly yes.

Paulgani

Ronald Austin

I agree wholeheartedly. If I could get Alëna here on a tourist visa I'd do
it in a heartbeat and marry here.
Ron


"tparrent" wrote in message
news:446828.1034876639@britishexpats-
.com...
    > I am going to take a slightly different tack on this. Since your beau
    > can (relatively) freely travel to the U.S. to visit you as a "friend", I
    > say do the visiting as often as possible.
    > Sure, answer the questions truthfully but once you cross that border if
    > you THEN decide to marry at that time I say GO FOR IT.
    > Many of us are in a less flexible position because of the home country
    > of our fiancees. Mine is from China and there is almost NO chance that
    > a young, single Chinese woman is going to be granted a tourist visa in
    > the first place. I even offered to post bond guaranteeing that she
    > would return home (and she would have too - honest) while we finish the
    > legal process but there was still no way.
    > Here's the funny part. If a Chinese woman wants to tour America, the
    > U.S. govt is convinced she is going to get married and stay here. If
    > she actually gets engaged while in China and endyures a year of waiting
    > to get here legally, the first and most important question they ask is :
    > are you REALLY going to get married?
    > Hey, I live under the system like the rest of you and I personally would
    > NEVER lie to the INS or any other authority for that matter. However,
    > if Ling came over as a tourist, answered all the questions honestly and
    > I had not previously promised NOT to marry her on that trip...well, I
    > can hear the hypothetical church bells ringing
    > I say invite your honey over for a visit and if your intentions change
    > during the visit.....I'll be the first to cast rice rather than
    > aspersions.
    > --

mrpink

It made me smile too!

So, just three weeks to our my next visit. And yes, I really will be going back to the UK afterwards. *sniff*

Better start planning for the next visit after that!

Folinskyinla

Hi:

I've read the string of replies and will say that "whomever's" strategy is up to them. However, the non-attorney responses are not really that good.

A lot of people look for the "loopholes" in the law. I happen to be quite good at finding and threading those "loopholes." However, threading loopholes is a fine art and can be easily screwed up. In particular, I find Paul Gani's responses to be creating the possiblity that in attempting to thread the loopholes, you would also tie together the shoelaces from both shoes. It can be awafully painful when you trip as you confidently step forward.

Yes, you can adjust if the spouse successfully enters and avoids any outright misrepresentations at the border. Lets say 98% do this and get away with this. Good odds, eh? Take into account the fact the remaining 2% might be turned away with a 5 year bar to return absent a waiver. If there is a fraud finding, the bar is for LIFE, absent a waiver

As an attorney, I would be required to advise you to follow the law, and I would interpret the law in your favor. But I would also required to advise you fo the risks involved in various courses of conduct.

If you intend to skate at the edge of what's legal or even skat over the line, at least engage in risk/benefit analysis.

SecretGarden

Only three weeks till you get here! I'd better get busy! LOL
SecretGarden