Getting married before VWP expires

[Holding Pattern]

What is the name of your state (only U.S. law)? California.

Hallo,
My girlfriend (US citizen) and I are planning to get married right before my 90 days are up on my Visa Waiver Program. I am from the Netherlands and have not worked or violated any rules of the visa at all in the time I was in the US. We have been dating for a year now and I have been back and forth on the VWP, but I fear that I will be denied entry to the US if I travel again on the program.

We have a few questions that we hoped could be answered:

- If we get married within the 90 days, do I have to leave if the adjustment of status has not yet been compleated? If so, can I re-enter without problems because I am now married to a US citizen?

- If we get married after the 90 day visa is that going to be very problematic? We are trying to make the 90 day limit but we may miss that by a few days... I believe rules are different for "illegal immigrants" who have entered the US legaly (checked by immigration) but overstayed the 90 day limit.​

Thank you for any advice and if you have any questions about our situation that may be of importance please do not hesitate to ask.

 

[asiny]

If we get married within the 90 days, do I have to leave if the adjustment of status has not yet been compleated?

Ask the immigration officer and/or discuss this with your immigration attorney. I know there is a great immigration attorney on these boards and I am sure they will chime in once they see this thread

If so, can I re-enter without problems because I am now married to a US citizen?

From personal experience I was able to travel between both countries during my application of a K1 visa. However, each time I travelled to the U.S. I was red-bagged and sent to speak to the immigration officer who would question "are you going to get illegally married during this stay". At one point I had to remain in my home country during the final few months of processing.

If we get married after the 90 day visa is that going to be very problematic?

Yes.

I believe rules are different for "illegal immigrants" who have entered the US legaly (checked by immigration) but overstayed the 90 day limit.

Once the 90-day-limit passes you would become an illegal immigrant - even if you entered the country legally, making the entire process VERY problematic.

I did (almost) the same as you - dating during the VWP. When we had decided to get married we filed all appropriate K1 paperwork - the entire process took about 1 year. And yes, I returned to my home country during this period (which allowed me to close out any business I had) AND I travelled to the U.S. during this time too.

Once I received the K1 - I had 90 days to get married upon my re-entrance to the U.S.

My question - would it really cause a hardship if you began the K1 process and returned to your home country? If you are both in love would you both want to chance the high-probability of never being together (legally) in the U.S. because you failed to follow process? As part of the K1 process (that I went through) - does your future wife have long-time friends (years) who can attest to knowing you both and they would, under penalty of perjury, write and sign affidavits to that effect?

 

[Holding Pattern]

Ask the immigration officer and/or discuss this with your immigration attorney. I know there is a great immigration attorney on these boards and I am sure they will chime in once they see this thread

Looking forward to his perspective!

From personal experience I was able to travel between both countries during my application of a K1 visa. However, each time I travelled to the U.S. I was red-bagged and sent to speak to the immigration officer who would question "are you going to get illegally married during this stay". At one point I had to remain in my home country during the final few months of processing.

The last time I arrived in the US I was sent aside as well and they were very suspicious. I do not think that if I leave again I will be able to return for some time. During your application, were you traveling under the VWP? If so, that is not an option for me at this time.

Yes.

Once the 90-day-limit passes you would become an illegal immigrant - even if you entered the country legally, making the entire process VERY problematic.

Thank you, I understand that it would be problematic... but would it be impossible?

I did (almost) the same as you - dating during the VWP. When we had decided to get married we filed all appropriate K1 paperwork - the entire process took about 1 year. And yes, I returned to my home country during this period (which allowed me to close out any business I had) AND I travelled to the U.S. during this time too.

Once I received the K1 - I had 90 days to get married upon my re-entrance to the U.S.

My question - would it really cause a hardship if you began the K1 process and returned to your home country? If you are both in love would you both want to chance the high-probability of never being together (legally) in the U.S. because you failed to follow process?

To be honest.... yes. We are deeply in love and I have fallen in love with living here as well. Not to mention there are children involved that rely on me. A year would be devistating to all the people in my life and that is something I am not willing to do. I NEED to find a way to make this work...

As part of the K1 process (that I went through) - does your future wife have long-time friends (years) who can attest to knowing you both and they would, under penalty of perjury, write and sign affidavits to that effect?

Yes, I have met all her friends and family and I am sure they will all go to court for us.

 

[asiny]

The last time I arrived in the US I was sent aside as well and they were very suspicious. I do not think that if I leave again I will be able to return for some time. During your application, were you traveling under the VWP? If so, that is not an option for me at this time.

I was traveling under the VWP. But this bring up some questions, what were they suspicious of? How many times have you travelled to the U.S. under the VWP? Before I submitted for the K1 I had travelled 8 times - and each time I was red-bagged and sent to speak to the officer.

Thank you, I understand that it would be problematic... but would it be impossible?

This is where the immigration attorney would be best - hopefully the one who travels the boards will drop in.
As a time-frame, when does your VWP expire? When are you thinking of getting married?

To be honest.... yes. We are deeply in love and I have fallen in love with living here as well. Not to mention there are children involved that rely on me. A year would be devistating to all the people in my life and that is something I am not willing to do. I NEED to find a way to make this work...

Do you mean personally (i.e. you are a 'house-husband'), or do you have financials from your home country that they relay on? I sincerely hope you don't mean from illegal work - if (at any time) you are discovered to be working illegally (even if legally married) your application will be, immediately, denied and deportation proceedings filed.

Yes, I have met all her friends and family and I am sure they will all go to court for us.

If it were me - and at one point my wife and I had contemplated the exact scenario (I was a 'house-husband' whilst then 'girlfriend' worked and watched her 6yr old) - doing it all legal and the time away is better than looking over your shoulder in-case anything goes wrong which could end you both up never being together in the U.S.
We filed everything without the use of any attorney, checked, double-triple checked all our paperwork, kept copies of all paperwork making sure everything we did was to the letter of the immigration requirements.

I have cut out a lot of the other rules of ineligibility and focused on what would apply to you.

§ Sec. 245.1 Eligibility.
(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 § 245.10 , is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 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 )
(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 )

 

[Holding Pattern]

I was traveling under the VWP. But this bring up some questions, what were they suspicious of? How many times have you travelled to the U.S. under the VWP? Before I submitted for the K1 I had travelled 8 times - and each time I was red-bagged and sent to speak to the officer.

I have traveled on it 4 times since November with only a few weeks inbetween and the last two times (including this time) up to the maximum 90 days. They are suspicious of the short times I am back "home" and the length of my stays in the US. This time I had a return ticket for 2 weeks later and then once I was here I resceduled it for the maximum stay. I had to play the system a little or they would have not let me in. This last time they checked the return ticket to make sure I had a ticket back. I am afraid that if I do go back I will have to stay in the Netherlands for atleast 3 months before I can safely return to the US.

This is where the immigration attorney would be best - hopefully the one who travels the boards will drop in.
As a time-frame, when does your VWP expire? When are you thinking of getting married?

We are talking to a attorney next week, but am trying to find out as much about our situation as we can before we have a consultation.
My VWP expires in 3 weeks... married in 2 (we hope). Here is the kicker.... we are waiting for her divorce to be finalized. This has been going on for a year but it is now with the judge to be signed, estimated time... 2 to 3 weeks, hence; our problem.

Do you mean personally (i.e. you are a 'house-husband'), or do you have financials from your home country that they relay on? I sincerely hope you don't mean from illegal work - if (at any time) you are discovered to be working illegally (even if legally married) your application will be, immediately, denied and deportation proceedings filed.

I am not working here or breaking any other laws, just waiting to start my life here. My girlfriend and her kids love me and rely on me for stability, they went through a lot with her ex and now look up to me as a role model. In my situation there is so much more at stake than just a green card...

If it were me - and at one point my wife and I had contemplated the exact scenario (I was a 'house-husband' whilst then 'girlfriend' worked and watched her 6yr old) - doing it all legal and the time away is better than looking over your shoulder in-case anything goes wrong which could end you both up never being together in the U.S.
We filed everything without the use of any attorney, checked, double-triple checked all our paperwork, kept copies of all paperwork making sure everything we did was to the letter of the immigration requirements.

I have cut out a lot of the other rules of ineligibility and focused on what would apply to you.

We are trying to do it by the book but time has run out. Her divorce took so long to complete that we are now with our backs to the wall. I do not want to risk us not being able to be together, but that is just not an option. If the signing of the divorce papers takes 3 weeks not 2 it is all up to the immigration lawyer to advise us on what to do... and I am afraid I am not going to like what he has to say.

 

[asiny]

I have traveled on it 4 times since November with only a few weeks inbetween and the last two times (including this time) up to the maximum 90 days. They are suspicious of the short times I am back "home" and the length of my stays in the US. This time I had a return ticket for 2 weeks later and then once I was here I resceduled it for the maximum stay. I had to play the system a little or they would have not let me in. This last time they checked the return ticket to make sure I had a ticket back. I am afraid that if I do go back I will have to stay in the Netherlands for atleast 3 months before I can safely return to the US.

There is no "time-frame" as to how long you MUST remain out of the U.S.
When you say 'had to play the system' what do you mean by that? As long as you have a valid return ticket - regardless of whether it is in a week or at the 90 day limit - they have no reason to deny a VWP.

We are talking to a attorney next week, but am trying to find out as much about our situation as we can before we have a consultation.
My VWP expires in 3 weeks... married in 2 (we hope). Here is the kicker.... we are waiting for her divorce to be finalized. This has been going on for a year but it is now with the judge to be signed, estimated time... 2 to 3 weeks, hence; our problem.

Understood. It's not an ideal situation, but it is the situation you are faced with.

I am not working here or breaking any other laws, just waiting to start my life here. My girlfriend and her kids love me and rely on me for stability, they went through a lot with her ex and now look up to me as a role model. In my situation there is so much more at stake than just a green card...

Glad to hear and commendable that you are accepting a 'ready-made-family'.

We are trying to do it by the book but time has run out. Her divorce took so long to complete that we are now with our backs to the wall. I do not want to risk us not being able to be together, but that is just not an option. If the signing of the divorce papers takes 3 weeks not 2 it is all up to the immigration lawyer to advise us on what to do... and I am afraid I am not going to like what he has to say.

Depending on the immigration lawyer - follow their advice. After all of the above, don't chance it. If you MUST leave on your return ticket, at the expiration of the VWP, do it. You can always return.. and all of this can happen whilst you follow the immigration lawyers advice and go through the full process that is the [sarcasm]wonderful world[/sarcasm] of the USCIS.

 

[Proserpina]

WHOA.

HOLD IT please.


If you marry WHILE on the VW, that may represent a MUCH bigger problem than overstaying and THEN marrying. Marriage will forgive the overstay - but it won't forgive the suspicion of fraud if you marry during the 90 day period.

I would STRONGLY suggest you do NOT get married BEFORE speaking with an attorney.

I married about 3 months after my VW had expired and adjusted status successfully, with no problems whatsoever. Both the attorney I used AND the immigration officer who adjudicated the case were VERY clear about the timing....

 

[Holding Pattern]

There is no "time-frame" as to how long you MUST remain out of the U.S.
When you say 'had to play the system' what do you mean by that? As long as you have a valid return ticket - regardless of whether it is in a week or at the 90 day limit - they have no reason to deny a VWP.

According to the immigration lawyer they can deny anyone on a VWP at any time. From what I am lead to believe is that you should be out of the US as long as you were in it to be able to come back without looking suspicious. After my first 90 day stay I was back after 2 weeks... that set off alarms and I was questioned. We thought that would happen so I got a return ticket for a 2 week stay and then once I was in contacted the airline and changed the date.

Glad to hear and commendable that you are accepting a 'ready-made-family'.

Thank you, they make me happy so it is very easy to love them!

Depending on the immigration lawyer - follow their advice. After all of the above, don't chance it. If you MUST leave on your return ticket, at the expiration of the VWP, do it. You can always return.. and all of this can happen whilst you follow the immigration lawyers advice and go through the full process that is the [sarcasm]wonderful world[/sarcasm] of the USCIS.

I hear ya.... we are going to listen to what the lawyer has to say. I just hope that if we can get married before the 90 days are up I can stay pending the paperwork. I would hate to have to leave...

 

[Holding Pattern]

WHOA.

HOLD IT please.


If you marry WHILE on the VW, that may represent a MUCH bigger problem than overstaying and THEN marrying. Marriage will forgive the overstay - but it won't forgive the suspicion of fraud if you marry during the 90 day period.

I would STRONGLY suggest you do NOT get married BEFORE speaking with an attorney.

I married about 3 months after my VW had expired and adjusted status successfully, with no problems whatsoever. Both the attorney I used AND the immigration officer who adjudicated the case were VERY clear about the timing....

That is not what I heard at all. I believe the law is that I can enter the US on the VWP aslong as I had no intent of marrying apon entry to the US. We were not planning on getting married, plus she was in the middle of her divorce at the time. Now that the divorce is finally done with, we want to get married. In our case we are not breaking the rules of the VWP. We will have to explane our actions during an interview some time after the marriage to show that we are in love and no fraud was committed.

I found this post on overstaying the VWP and getting married, the law has changed recently:

To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview."

Source: http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

 

[Proserpina]

Then I very respectfully withdraw what I said earlier due to the laws having indeed changed.

Thank you, and I do apologize

 

[asiny]

Then I very respectfully withdraw what I said earlier due to the laws having indeed changed.

Thank you, and I do apologize

Don't be so fast to apologise. After reading the lawyers blog, completely, see Freeman v. Gonzales and the OP missed out to quote;

Up until last week, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, USCIS has been open to approving the adjustment of status application. Now, after the recent email and citing Momeni, USCIS in San Diego and in other cities take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, case will be denied.

In Freeman - the VWP entrant was married PRIOR to entry in to the U.S. and thus was able to apply for adjustment of status.
Reading further, if the OP get's married NOW and then applies for adjustment of status (after VWP expiration) they will be denied as per the above cited Momeni v. Chertoff (No. 07-55018) and per Freeman.

I believe the law is that I can enter the US on the VWP aslong as I had no intent of marrying apon entry to the US.

But you did have the intent to get married someday - whether the divorce has passed or was in 6 weeks, you must have the intent on getting married. You would need the immigration attorney to prove you never intended to get married - it just 'happened' - during this, specific, visit. Because, ultimately, there is no deadline to get married. Immigration could question why the sudden haste to get married.

 

[Holding Pattern]

Then I very respectfully withdraw what I said earlier due to the laws having indeed changed.
Thank you, and I do apologize

No need to apologize! I am very thankfull for any and all advice!

Don't be so fast to apologise. After reading the lawyers blog, completely, see Freeman v. Gonzales and the OP missed out to quote;

In Freeman - the VWP entrant was married PRIOR to entry in to the U.S. and thus was able to apply for adjustment of status.
Reading further, if the OP get's married NOW and then applies for adjustment of status (after VWP expiration) they will be denied as per the above cited Momeni v. Chertoff (No. 07-55018) and per Freeman.

Thank you for clearing that up! It is going to come down to the wire... we are going to have to get married and apply for the adjustment of status before the 90 days come to an end.

But you did have the intent to get married someday - whether the divorce has passed or was in 6 weeks, you must have the intent on getting married. You would need the immigration attorney to prove you never intended to get married - it just 'happened' - during this, specific, visit. Because, ultimately, there is no deadline to get married. Immigration could question why the sudden haste to get married.

Proving we are in love is not going to be hard, we have litteraly thousands of e-mails we sent in the time we were apart. Plus hours and hours of online chat and video time logged
We love each other and we are getting married for that reason first and foremost. The "haste" is only because of the rock and a hard place known as immigration laws.

 

[asiny]

Proving we are in love is not going to be hard, we have litteraly thousands of e-mails we sent in the time we were apart. Plus hours and hours of online chat and video time logged
We love each other and we are getting married for that reason first and foremost. The "haste" is only because of the rock and a hard place known as immigration laws.

The proof I talk of was not your love.. but the timing of your intent on getting married.

There is no 'rock and a hard place' with the law - you are allowed to get married. Just follow the process and there is, usually, no problems.

The question comes in on if you had the intent to get married whilst you entered the U.S. on the VWP.

 

[ecmst12]

Here's the thing. Marriage is forever. You shouldn't be in such a rush, if your love is that solid it will wait. And these kids who "depend on you" are NOT YOUR KIDS! They will get along without you too. Quit being so dramatic about everything and do things the right way, the first time.