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Ely
Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 88645
Experience:  Private practice in several areas, including immigration
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I am a UK citizen and my girlfriend is a US Citizen. She has

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I am a UK citizen and my girlfriend is a US Citizen. She has filed for a fiance visa K1 for me. I am currently in the US visiting her on a tourist visa. What would happen if we just decided to get married here and now in the US and try and file that way instead?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Can you please tell me:

1) Was the fiance visa filed before or after you had requested your visitor visa; and
2) Are you on a B2 visa, or a VWP?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

The fiance visa was filed/received on April 29th 2013. My fiance filed it from here and I was in the UK.


 


I came into the country on a tourist visa (ESTA) last Friday 7th June. They stamped me for three months. I am due to leave this Monday.


 


 

Expert:  Ely replied 1 year ago.
Thank you, J.

On this website, I do not always get to give good news, and I am afraid that this is one of these times.

When someone enters on a visitor visa, they should not have "dual intent." Dual intent means that one intends to stay in the US as an immigrant. A student visa does not allow dual intent. This is an important doctrine.

If it is thought that you had dual intent at the time that they are applying for a VWP (ESTA),adjustment request based on marriage filed from within the USA may be denied (in other words, USIS does not want you to enter on VWP/ESTA just to avoid having to wait for a fiance visa).

There is a presumption that one has dual intent already, under INA 214(b), 8 U.S.C. 1184(b). The applicant would have to show otherwise. While often this is overlooked especially if it has been 60+ days before you get married and file from the USA, in your case, this is hard to do is a fiance visa has ALREADY been filed.

In other words, when it comes down to it, if you get married and file from within the USA, it may be denied, I am afraid. At this point, your best options would be to:

1) Get married, but then go back and have your fiance scrap the K1 visa and file for you as a spouse using the I-130 (6 months wait); or

2) Not get married, and simply return on the K1 visa when it is ready and follow though this way with a I-130/I-485 package to adjust your status once married.

I hope this clarifies. Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Does the fact that I am here on a Tourist Visa have any bearing on the K1 already filed (I just assumed it was okay to visit my fiance!!)? My intention previously was to go back this Monday and continue working in the UK.


 


Also can I stay here up to the 90 days allowed under a tourist visa and simply go back for my appointment with the US Consulate/embassy in London when they give me an appointment date?

Expert:  Ely replied 1 year ago.
Hello and thank you for your follow up.

Does the fact that I am here on a Tourist Visa have any bearing on the K1 already filed (I just assumed it was okay to visit my fiance!!)?

Actually, you may have been the beneficiary of human error. Normally, a VWP/ESTA may be denied due to a pending permanent visa request such as K1. But obviously, this detail was overlooked. However, upon the filing of the I-130/I-485 while on VWP/ESTA, the background is more thoroughly checked and this may then manifest itself and become an issue.

My intention previously was to go back this Monday and continue working in the UK.

Right, but, it would look as though you had always intended to overstay, marry, and file from inside. I know - the doctrine is ridiculous. But, it is very much in force - see here!

Also can I stay here up to the 90 days allowed under a tourist visa and simply go back for my appointment with the US Consulate/embassy in London when they give me an appointment date?

Yes. Your pending K1 does not curtail the date of departure your VWP requires.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Customer: replied 1 year ago.

So what you're saying is it is not a problem if I just go back on Monday like originally planned.


 


It would be a problem however if I stayed longer/and or applied from here.

Expert:  Ely replied 1 year ago.
J,

So what you're saying is it is not a problem if I just go back on Monday like originally planned.

Correct!

It would be a problem however if I stayed longer/and or applied from here.

Exactly. Simply put, this would be it.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 88645
Experience: Private practice in several areas, including immigration
Ely and 5 other Immigration Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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Ely
Immigration Lawyer
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Private practice in several areas, including immigration