My fiancee are ready to get married but having looked at all the options, time frames and financial constraints (not being able to work in the USA for a certain period of time) we thought that it best to seek out advice. I know all the "legal" aspects as several specialist including yourself have answered them.
i am perhaps naive and perhaps the law is very black and white but here is what we thought would be a process that would suit us best. What we would like to know is if it is against the US immigration law, what the risks would be and would it be a good option.
We would like to get married in the USA. I would travel on the visa waiver program and intend to just be travelling for a vacation, which I have regular done, every two or three years for the last 10 years and over the last two years about 4 or 5 times a year.
We would get married and at the end of my vacation I would return to my home and job in the The Netherlands. My wife would the file for the spousal visa (here we are not sure exactly which one as it seems there is some debate over which one is the right one, the best one etc).
We would then follow the normal process for spouses where one is a US citizen living in the US and the other a British citizen living and working in The Netherlands.
From my understanding if it could be proved that I was intending to marry during my holiday then I could be accused of entering under false pretences. But if it was a "surprise" that my fiancee planned and I was not aware of it and the fact that I have made no intention to cut any ties (house, job etc) in the Netherlands and returned and we then applied would their be a case for banning me or any other sanction.
Who has to prove the facts? Do I have to prove that there was no intent upon entry, and my fiancee was the one who planned and suggested it or is it just a straight forward view. I arrived on a visa waiver, got married, left and then applied for a spousal visa: therefore i am guilty.
Or is the fact that I left and we then initiated the "normal" process for spousal visas considered that there was no intent to marry and stay in the US.
I hope I have provided enough information but please don not hesitate to ask me any questions.
We want to marry in the US but until I am eligible to apply for work in the US I do not want to give up my job in the Netherlands
Thank you for your advice.
Perhaps we misinterpreted the answers we were given.
1. Which is the spousal visa we should apply for once I return, a K3 or IR-1/CR-1? My understanding is the the IR-1/CR-1 will allow me to work immediately but will take longer to process, and most likely I will not be able to travel to and from the US until the process is completed whereas the K3 will not allow me to work immediately but will have to file additional requests but will allow me to go to and from the US while the visa is valid.
Do you recommend seeking professional services for the immigration process or is it straightforward in standard cases?
QUESTION: Which is the spousal visa we should apply for once I return, a K3 or IR-1/CR-1? My understanding is the the IR-1/CR-1 will allow me to work immediately but will take longer to process, and most likely I will not be able to travel to and from the US until the process is completed whereas the K3 will not allow me to work immediately but will have to file additional requests but will allow me to go to and from the US while the visa is valid.
ANSWER: Your wife cannot petition you for and you cannot apply for a K-3 spousal visa without her first petitioning you for the IR-1/CR-1 immigrant visa by filing and receiving the Receipt Notice for the I-130 petition. This is because the purpose of the K-3 is to bring families together during what used to be a lengthy waiting period for the I-130 processing, when it used to take a very long time to process. So once the I-130 petition is received by the USCIS, the US citizen can file the petition for the K-3 visa. But now that the I-130 is being processed much faster, the odds of getting through the K-3 visa process before the I-130 is processed are very low. And if the I-130 is processed before the K-3 is issued, then there is no more use for the K-3 visa, and thus processing terminates.
My suggestion always is to get the I-130 Receipt Notice, and then for your wife to file the I-129F petition for the K-3 visa, since it doesn't cost anything. I doubt it will be approved before the I-130, but it's worth a shot. If you do get the K-3 visa, then once you get to the US, you can file I-765, Application for Employment Authorization, approval of which would give you permission to work. Note that approval of this application can take anywhere from 2.5 to 5 months.
QUESTION: Do you recommend seeking professional services for the immigration process or is it straightforward in standard cases?
ANSWER: I always recommend immigration counsel, but it is not required.
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