Yes, I would hope that would be the end result. His mom was put in a home, and he was able to get away from work for 3 months so he bought a ticket and is coming here in October. We want to get married, and I was researching it and everywhere I looked it sounded like he would have to go home and maybe not come back for another year while all the paperwork is approved for him to come back as my spouse...Is that true, would he have to leave??
It is possible to come as a visitor, and then adjust status after marrying a US citizen. But usually only in circumstances where the person came with the intent to visit only, and then later met and married a US citizen and decided to stay. And usually, they are only safe from questioning of intent (discussed below).
But the problem in this case is that if he is coming to the US for the purpose of (with the intent to) getting married and staying in the US, then he should not use the visitor visa, as that would be a violation of immigration laws. It could lead to big problems.
The reason this is the case is because the US immigration authorities do not want people circumventing the appropriate channels (which take anywhere from 9 months to 1 year (CR-1 spousal visa) or 6 to 9 months (K-1 fiance visa)) so that they can get to the US and get married and stay without waiting these processing times. In other words, there is an appropriate process for this (either K-1 fiance or CR-1 marriage based visas), so using the inappropriate methods to get around long waiting times is a violation of immigration laws.
The right way to do this would be to petition for his K-1 fiance visa, and then for him to come in about 6 to 9 months, get married within 90 days, and then apply for adjustment of status to get his green card to live and work in the US. K-1 visa information: http://travel.state.gov/visa/immigrants/types/types_2994.html.
If he enters as a visitor, he must get married and submit the application for adjustment of status before his 90 days expires. Otherwise, he will be asked to leave. The problem with this is that if a person comes as a visitor and within the first 90 days, gets married, then when he submits the application for adjustment of status, it could very well raise questions as to his intent when he entered the US. He would have to show that he did not intend to get married and apply for adjustment of status when he entered the US as a visitor. This is not very easy to do.
So if he does what you are planning to do, then he needs to be very prepared to explain that he did not have the intent to get married when he entered with the visitor status. That is not going to be easy to do, so you both will need to get an attorney to help, if that's how you go. But again, this is an illegal process and it is still possible to get a denial. If that's how you go, the longer you wait to get married and submit the documentation and applications and petition, the better.
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Thank you for your honesty. I am 50 years old and he is 55...so we are not rash people. If I were to marry anyone it would be him, there have been so many obligations over the last 5 years that have kept us apart...his mom was a huge responsibility, and the first chance in all these years came up when she was taken into care, just this weekend she passed away so he has no obligations to stay in England any longer, and although it has not been our plan for him to come here and marry me, there is a greater opportunity now that he is free. I just wanted to know if that is the case, if he comes here and we feel that we want to spend this second half of our life together and DO decide to marry you are saying he would have to go back to england and we would have to do all of the paperwork to have him brought back as my spouse, and if we dont marry now, we would have to get a k-1 and he would have to come back a second time and marry, and then still have to do more paper work in order to stay?
QUESTION: I just wanted to know if that is the case, if he comes here and we feel that we want to spend this second half of our life together and DO decide to marry you are saying he would have to go back to england and we would have to do all of the paperwork to have him brought back as my spouse
ANSWER: Not necessarily. Take a look at my previous response. There is a chance he would not have to leave, if he can show that his intent was not to stay and get married when he first entered the US. But there is a bigger chance that he would be asked to leave if he can't do that. I can't really predict how the reviewing officer will decide that.
QUESTION: If we dont marry now, we would have to get a k-1 and he would have to come back a second time and marry, and then still have to do more paper work in order to stay?
ANSWER: Correct. Or you can get married while he is here or you are there, and then he can leave and go through the 1 year process from abroad. So the K-1 is the better option of these two, since it takes less time. But once he comes to the US and gets married, he'd have to apply for adjustment of status to get his green card. That can take 6 to 9 months, but at least he'll be here with you.
So in a nutshell there are only two options, and no guarantees unless he does the k-1 right?
Option 1- If we decide to marry, he stays and we try to prove his intent was not to marry me when he came here. If all goes well he applies for a green card, but we would need a lawyer to be successful?
Option 2, He stays for three months and I am grateful for the time together, he goes home and applies for a k-1 which can take several months, and comes back again, we get married and he can stay while he applies for his green card?
QUESTION: Option 1- If we decide to marry, he stays and we try to prove his intent was not to marry me when he came here. If all goes well he applies for a green card, but we would need a lawyer to be successful?
QUESTION: Option 2, He stays for three months and I am grateful for the time together, he goes home and applies for a k-1 which can take several months, and comes back again, we get married and he can stay while he applies for his green card?
And the last option would be to get married, he leaves the US and completes the CR-1 marriage based immigration process from outside the US, which can take up to a year on average.
Okay, I tried to add to the last question, and it wouldn't let me...
This is my last question, I am sorry I have kept you so long..
How would he go about staying longer than the 3 months, could he extend his time here for 6 months, and during that time could he apply for his k-1 from here, or does that not make sense? I guess I am trying every avenue not to have him have to go back :( I am fully able to support him, and I guess part of me is concerned that if he goes back we will be apart for maybe a year, it is all so uncertain...
No. He can't apply for a visa from within the US. Visas are only issued abroad. Some people can apply for a change of status, but there are two problems here:
1) The K-1 visa is not issued in the US. K-1 status can not be requested from within the US and one cannot change his status to K-1 from within the US.
2) Even if one could do so, when a person enters the US on the visa waiver program (which he is in this case), he is not permitted to extend or change his status to any other status but permanent resident. So he wouldn't be able to extend his status or do a change of status. That's one of the drawbacks of the visa waiver program.
The options I gave you previously are the only options in this case.
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