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Getting Married Under Visa Waiver?

Discussion in 'Temporary Visas - OTHER Than The Ones Mentioned' started by Retrocade, Mar 16, 2006.

  1. Retrocade

    Retrocade Registered Users (C)

    Hi,
    I am currently in the US on the Visa Waiver and have been coming back and forth a couple of times in the past year or so. I am now planning on marrying a US citizen. Do I still have to return to the UK where I am from after 90 days or am I allowed to stay longer?
    If so what forms do I need to file and how long am I allowed to stay?
    Sorry if this has been answered before but there is so much about immigration that its easy to get lost in all the forums here.
    Thanks in advance for any advice and help.
  2. Retrocade

    Retrocade Registered Users (C)

    Anyone please? :(
  3. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    IIRC you are not allowed to extend, change or adjust your status if you enter under the VWP. Why not get a K-1?
  4. GotPR?

    GotPR? Registered Users (C)

    You are allowed to stay if you file I485(and I130).
    In general, one can not apply for permanent residency under visa waiver, but that is not the case when marrying to the US citizen under visa waiver.
    Apply for permanent residency under visa waiver is allowed.
    However, one is not allowed to have immigrant intent under VWP, and it is a bit gray area if you have intent of marriage.

    http://uscis.gov/graphics/howdoi/LPReligibility.htm

    If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

    worked without permission,

    remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

    failed otherwise to maintain lawful status and with the proper immigration documentation, or

    have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively).
  5. CBP Officer

    CBP Officer Registered Users (C)

    If you wish to save yourself time, money and headaches, don't get married yet.

    Apply for a K1 visa in your home country and then enter on it. Anything less will cost your thousands of dollars more, take longer to process through CIS and cause more headaches then you can imagine.

    It's up to you.
  6. Retrocade

    Retrocade Registered Users (C)

    But I can get married under a visa waiver though and be able to stay? If so what forms do I need to get after getting married and how long can I stay once we are married? Thanks for your replys.
  7. GotPR?

    GotPR? Registered Users (C)

    you need to file I485 to stay and can stay until you get GC or are denied with GC.
    Last edited by a moderator: Apr 5, 2006
  8. Retrocade

    Retrocade Registered Users (C)

    I didn't think you could apply for adjustment of status under the VWP?
    The form states that you cannot apply if you entered the US in transit without a visa.

    So now I am confused. :confused:
  9. GotPR?

    GotPR? Registered Users (C)

    Here is the word of law. (8 CFR 245.1 (b) )

    (b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and Sec. 245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in Sec. 245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091)

    (1) Any alien who entered the United States in transit without a visa;


    (2) Any alien who, on arrival in the United States, was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon;


    (3) Any alien who was not admitted or paroled following inspection by an immigration officer;

    (4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status. This restriction shall not apply to an alien who is:


    (i) An immediate relative as defined in section 201(b) of the Act;


    (ii) A special immigrant as defined in section 101(a)(27)(H) or (j) of the Act;


    (iii) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991; or


    (iv) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989), and has not entered into or continued in unauthorized employment on or after November 29, 1990.


    (5) Any alien who on or after November 6, 1986 is not in lawful immigration status on the date of filing his or her application for adjustment of status, except an applicant who is an immediate relative as defined in section 201(b) or a special immigrant as defined in section 101(a)(27) (H), (I), or (J);


    (6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27) (h), (I), or (J) of the Act;


    (7) Any alien admitted as a visitor under the visa waiver provisions of § 212.1(e) of this chapter; (Amended 7/23/97; 62 FR 39417)


    (8) Any alien admitted as a Visa Waiver Pilot Program visitor under the provisions of section 217 of the Act and part 217 of this chapter other than an immediate relative as defined in section 201(b) of the Act; (Amended 7/23/97; 62 FR 39417)
    Last edited by a moderator: Apr 6, 2006
  10. CBP Officer

    CBP Officer Registered Users (C)

    Yes, you can get married.

    Yes, you’ll be allowed to stay for a period of time and you won't be able to leave. If you do leave, your adjustment will be voided.

    Once your visa is ready, you will be required to leave the country to get it. At that time you won't be able to come back without the visa. That could be up to 12 months.

    Save yourself the headaches and get a K1 visa.
  11. Retrocade

    Retrocade Registered Users (C)

    What sort of time period are we talking about here? Months or years?

    Damn 12 months is a long time. :eek:

    How much easier is it to go the K-1 route? Do I still need to leave to get it? I have not really looked into the K-1 visa.
  12. hadron

    hadron Registered Users (C)

    > Once your visa is ready, you will be required to leave the country to get
    > it. At that time you won't be able to come back without the visa. That
    > could be up to 12 months.

    Incorrect. The adjustment of status process doesn't require the applicant to leave the country.

    Retrocade:

    It is not advisable to marry under VWP and then to apply for adjustment of status based on the marriage (by filing forms I130 and I485). While USCIS is pretty lenient on the marriage based applicants, they could give you a hard time by presuming that you entered illegally. And why is it allways a brit that has the question about 'can I get married on B1/B2/VWP/F1....' ??

    By marrying on VWP, leaving the country during the adjustment of status process (which often takes 2 years or more) can be dicey. While there is a document called 'advance parole' which allows you to travel and re-enter, due to the violation of our VWP conditions, you might run into problems at the port of entry.

    So yes, get the K1 (or look into whether the embassy in London allows your spouse to use 'direct consular filing'. In that case you guys would have to get married in the UK, it would allow you to obtain an immigrant visa circumventing the intermediate step of a K1)
  13. CBP Officer

    CBP Officer Registered Users (C)

    Much easier, and yes you will have to leave to get the visa. Once the visa is ready, you will be contacted and you must go to the Embassy or Consulate and get it. It should not take more then 48 to 72 hours.
  14. LS511gixxer35

    LS511gixxer35 New Member

    My wife and I got married in the US and she had abandoned it when she went back to Canada to visit some relatives. This is without the AP. Now she is stuck in Canada and was denied entry once. My question is if she is able to come back, after the VWP is over, is she able to reapply in the states and wait for it again?
  15. hadron

    hadron Registered Users (C)

    You guys need to get an I130 approved and an immigrant visa through a US consulate abroad. She won't be able to enter the US under the visa waiver program or on a nonimmigrant visa as she has shown immigration intent by marrying in the US.

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