# VWP - K-1 - sticky situations



## leightonica (Jun 16, 2010)

This board has been helpful already in alot of ways, but of course, we are finding ourselves in what I think is an uniquely lame situation...

I am a US citizen living in NYC and my fiance is a UK citizen, not too far from London. I received notification on Tuesday (June 15, 2010) that our I-129F has been approved (so there are no issues with proving the relationship, no criminal records, enough money to keep us off welfare, etc). This is wonderful news, but I know we likely still have about 3 months to go (at least, right?) before he can actually come here to marry.

Bear with me if you will; here are the unique bits...


When he traveled to the US to see me in January (POE being Raleigh, NC), after truthfully answering the questions posed to him by the Border Patrol Agent (visiting his fiance, how much he has traveled here, intentions to return to UK after 8 day visit), he was told by this agent that he would no longer be eligible for the Visa Waiver Program and would from that point forward be required to have a B-1 to enter the US [we are assuming he meant B-2, but its irrelevant really]. While no indications were made in his passport, there was plenty of typing going on. He has since NOT tried to travel to the US, and I have just been going to the UK to see him. He has received no formal notification of his exclusion from the VWP, just this verbal one from the CBP guard.


We had decided before this event to get married anyways, and that he would join me in the US after marriage. So we went ahead and got everything for our I-129f/K-1 in the mail in Mid March. Having learned through that process that it woudl likely take half a year or more for him to receive the K-1, we decided in the meantime to apply for the b-2 so he could come spend some QT with my family before deciding to JOIN it. He learned at the interview that this was an expensive mistake, since one cannot be in application for two visas at once (it was at this point I started doing what is feeling like WAY TOO MUCH internet research on all of this). Before things went sour at the interview, he was asked why he needed a B-2 if he was just planning on a few short visits over the coming months. He told the interviewer that a Border Agent at his last POE told him he woudl need a B-2 if he wanted to enter the US again. Without consulting a computer or anything at that point, the interviewer said "Ok than, You do need one." That was 2 months ago.


Since submitting our I-129F/K-1, perhaps due in some small part to the experiences we've had thus far with the US DHS and CBP, we have decided that I will instead JOIN HIM in the UK after we marry here in the US.

I think these are all the relevant DETAILS, so let me put forth our main questions:

1. Is he really excluded from the VWP based on the word of one CBP agent? Will he ever be REeligible (like after we marry)? Is there any appeal process for this action? Will he have to get a b-2 every damn time i bring him home for xmas? Should he just try and get in like normal for a visit (with TONS of supporting documents showing his intention to return)



2. Is it OK that we have changed our minds about him settling here in the US and that instead i will go settle in the UK? The K-1 is still the correct visa for this, even if we will not seek an AoS or want him to immigrate here right now, right?


When posing question #2 to an agent over the phone at the State Dept, he told me that "yes, the k-1 is for someone to travel to the US to get married, and what you chose to do after that is up to you and your husband (stay or go)" When posing the SAME QUESTION to an agent at the CPB helpline, she laughed at me and said the K-1 is only needed if he is coming here to marry AND STAY. In fact, I will put below the conversation I had with this gem of a lady so that you can grasp just how Kafkaesque this is all feeling to me. 

Thank you, all of you, for any advice you can give us. This is such a THUMBS DOWN process to go through.

Here is my report on the conversation I had with the CBP officer:

i explained to her that my fiance traveled here in January, after 8 trips to the US over 1.5 years, none lasting longer than about a week, and was told by a border patrol guard that he would no longer be eligible for the visa waiver program. she said if you mentioned you were coming to see your fiance, it was alot more likely that that is what made him exclude you from the program and not the frequency of visits.

i told her we were in the K-1 visa process. i asked her if your exclusion from the VWP was able to be appealed or if there was an expiration on it.

She said 'i mean, if youre in the k-1 process we can see that. we see everything. as long as he can show that he will be returning to his country, letter form employer saying he will be back at work, utility bills, rental agreements, home mortgage papers, like that, than he can come in.'

I explained to her that we, by error, tried to get you a b2 in the meantime, but that it was denied becuase we are already doing the k-1. she very not helpfully snickered and said something like "b2 cancels out the k1'. which obviously she is a slightly miswording, but whatevah!

i went back to my sort of original question, asking that, once we are married, will he than be re-eligible maybe to travel to the US on the visa waiver program? she said "well when he comes over on the k1 and you get married he will already be here" at which point i explained you are just coming here to marry and meet family etc and than i will return to UK with you to live and we will deal with your immigration to the US permanently later.

She again, but louder this time, snickered at me and said the k1 is just for coming to the US to marry and immigrate. I told her that no, i was told by numerous sources that the k-1 is for coming to the US to marry, but than what we do after that is up to us (either you apply for change of status to perm resident or i go to uk with you and we worry about you immigrating {as k3 under form I-130 i think?} LATER in life).

She s******ed louder and said "no, people come here all the time, like on tourist visa, to Las Vegas to get married and then go home. you can just do that."

i said 'but isnt that the WRONG WAY to do it and not the correct LEGAL process."

she says "well people do it all the time"

i decided to move on from this point. and ask one concluding question.

"so if he has all those documents proving he will be going home, and he is in some advanced stage of the K1 process, can you guess at his chances of being allowed in?"

"50-50"

"50-50? really? why 50-50?"

"well if he gets a nice guard or not"

at this point, i felt the conversation had no reason to continue. i blankly said 'thank you very much' and hung up.​


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## etril (May 26, 2010)

I'm sorry you've been having so many difficulties, leightonica! Chin up, you'll get through this eventually. And when it's over you can laugh about it. 

1) For your fiance, visiting you does not make him automatically ineligible for the VWP, but as you found, the border agent has a lot of leeway for admitting or denying someone. Has he tried reapplying through ESTA? That should tell him if he really is inelligible for the VWP from now on. Unfortunately, there is no appeal possible. Signing the I-94W gives up the right to appeal. If he is still elligible, you're right, TONS of documents supporting his intention to return would be wise. Though the border agent could still potentially deny him entrance. If he's denied entrance, he'll probably have to report it on any future forms you file with USCIS. And that could give you more difficulties down the road. Maybe a lawyer could give you more information about that and B-2 visas. Not really my expertise. 

2) You did the right thing with the K-1, since your intent at the time of filing was to go that route and settle in the US. Now that you've decided otherwise, your K-1 is still fine. Sure, if you'd known, you could have just gotten married without any visa (it's technically legal, but who knows if it would give you problems down the road). Anyways, you're here now. Your I-129F application has been approved (congratulations!). So you should just stay the course. Try not to let those CBP officers get to you. 

Cheers,
E


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## Fatbrit (May 8, 2008)

There are a gaggle of players you are speaking to:

Consular officers are part of the State. They issue visas. Visas allow you to knock on the door. They're Pyle types in the main.

CBP are part of DHS. They are the gatekeepers. They have wide latitude with all but citizens and permanent residents. The job tends to attract ex-military types.

USCIS are a totally different part of DHS and deal with immigration status within the US. The job attracts born bureaucrats.

1-800 numbers for the above are contracted out to private companies who pay folks minimum wage to listen to your call and answer from a script. Sometimes they get bored and imaginative. 

Okay, so now you know who all the players are, you know why it doesn't quite fit together.


Your bf has something stuck in the computer now that will mean his VWP entry will be forever denied. He shouldn't be surprised if he always has trouble at the border now. I have no idea what it is, but there's little point crying over spilled milk.

You've decided to live in the UK. The best plan for any multi-country couple like yourselves is for you both to hold each other's citizenship. So plan to stay in the UK at least the 3 years necessary to attain this. If you eventually decide to come back in the other direction, he can take US citizenship after living here 3 years as a permanent resident. At this stage, neither of you will have visa or immigration issues.


Meanwhile, I suggest he applies for a B2 some time after you have become resident in the UK . Since it's going to be tricky given your history, use the services of a US immigration attorney to guide you through.


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## Davis1 (Feb 20, 2009)

leightonica said:


> 1. Is he really excluded from the VWP based on the word of one CBP agent? Will he ever be REeligible (like after we marry)? Is there any appeal process for this action? Will he have to get a b-2 every damn time i bring him home for xmas? Should he just try and get in like normal for a visit (with TONS of supporting documents showing his intention to return)


So he got told to get a visa because he was abusing the VW system ..nothing unsual there... so you get the K-1 he arrives ..you marry ...you file for AOS ...he gets a green card ...done ..three years later citizenship ... once he has green card no visa ever required again 



> 2. Is it OK that we have changed our minds about him settling here in the US and that instead i will go settle in the UK? The K-1 is still the correct visa for this, even if we will not seek an AoS or want him to immigrate here right now, right?


So instead you want to go to the UK ...forget the K1
file for the briish visa ... must be over 21 though
Husbands, wives and partners (INF 4)


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## USC (Jun 13, 2010)

leightonica,

FB, is right your fiancée will forever have difficulty entering the US on the VWP. He has already been refused a B2 and is not likely to get one till after you have been permanently settled in the UK and you have grown some roots there. If you want him to come to the US in the near future you have to see the K1 process through.


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## leightonica (Jun 16, 2010)

Davis1 said:


> So he got told to get a visa because he was abusing the VW system ..nothing unsual there...
> 
> So instead you want to go to the UK ...forget the K1


I don't see how he was abusing the VW system at all...he came over 8-10 times in 2 years, never more than a week at a time. I believe the judgment made by the guard was rather arbitrary, and based mostly on the fact that my fiance admitted to being my fiance and, well, maybe if we are being honest, he can look a bit like a junky or a criminal sometimes...

But like FATBRIT says, split milk etc.

And I think i need to follow through with the K-1, as USC
says, since there seems to be no other process to get him here to meet my family and get married here otherwise.


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## leightonica (Jun 16, 2010)

etril said:


> Has he tried reapplying through ESTA?


Thanks for this suggestion...he is being duly informed to give it a shot.

If that turns up saying he is excluded from the VWP, than it sounds from alot of this that its a risk not worth taking to have him come over and try and get in just with a bunch of proof that he will be returning. all of this costs an unfair amount as is and to lose a summertime airfare bundle too...no good.

Is the K-1 a SINGLE ENTRY visa? I believe what i mean by this is clear, but let me make it more verbose...I understand once he arrives here with his k-1 WHENEVAH that gets to happen, we have to get married within 90 days. Fine, happy to do so. But for how long than is the K-1 valid after that? The trip over to meet fam /marry me wont be more than 3-4 weeks i imagine, since the man needs to get back to work. But is he able to come back in and out at all? 

again, THANKS!


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## Fatbrit (May 8, 2008)

leightonica said:


> Thanks for this suggestion...he is being duly informed to give it a shot.
> 
> If that turns up saying he is excluded from the VWP, than it sounds from alot of this that its a risk not worth taking to have him come over and try and get in just with a bunch of proof that he will be returning. all of this costs an unfair amount as is and to lose a summertime airfare bundle too...no good.
> 
> ...



Are you still intending to live in the UK?


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## leightonica (Jun 16, 2010)

Fatbrit said:


> Are you still intending to live in the UK?


yes, but i am very close with my family in the US and IDEALLY i would love for us to come visit them several times a year...


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## USC (Jun 13, 2010)

leightonica said:


> Thanks for this suggestion...he is being duly informed to give it a shot.
> 
> If that turns up saying he is excluded from the VWP, than it sounds from alot of this that its a risk not worth taking to have him come over and try and get in just with a bunch of proof that he will be returning. all of this costs an unfair amount as is and to lose a summertime airfare bundle too...no good.
> 
> ...


Below is a link to the K1 topic on Wikipedia, I believe it will answer all of your questions as to the process. Also on the bottom of the page there are various links that you want to click on, especially the link to the FAM notes. The FAM notes will tell you as to what the US Embassy will be looking for when he goes in for his interview.

K-1 visa - Wikipedia, the free encyclopedia

To answer your question, the K-1 is valid for ONE entry into the US which has to be performed within 6 months of the date of issue of the visa. Once he is in the US he can stay for however long he chooses provided he files his I-485 (Adjustment of Status) prior to the expiration date on the I-94 (which will be 90 days from the date of entry). At the time he files the I-485 he can also file an I-131 (Advance Parole/Application for Travel Document) this will enable him to travel back to England. The AP can be for single or multiple entries. The post marriage procedure is at the link below:

K1 Visa Adjustment of Status (Fiance of US Citizen)

Lastly, regarding the VWP and ESTA. He may not have been officially barred but he is done with VWP. Firstly, there are notes from the CBP inspector that he has been told to get a B-2 and secondly, the fact that he is has been refused a B-2 will be known to CBP via CCD. See the FAM note below stating this to be the case and that is why the Application Received stamp is being eliminated.

Elimination of the "Application Received" Stamp

Below is a wizard to the ESTA visa at the US Embassy, London. The last question is "Have you ever been refused a Visa," once you answer, Yes, you are told not to continue with the ESTA but rather to call the embassy.

Embassy of the U.S. London: Consular Affairs: Visa Wizard

I see that in response to FB's question you answered that you intend to live in the UK. I am afraid that, realistically speaking, you will have to follow the above if you intend to get married in the US. If you marry in the UK you could go the alternate route suggested by FB.


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## Fatbrit (May 8, 2008)

leightonica said:


> yes, but i am very close with my family in the US and IDEALLY i would love for us to come visit them several times a year...


So stick with it. Flipping between one and the other midway through is going to prove both costly and frustrating.

He'll be in with a good chance of a B2 when you're resident in the UK. Use a US immigration lawyer to prepare your application.


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## USC (Jun 13, 2010)

Fatbrit said:


> So stick with it. Flipping between one and the other midway through is going to prove both costly and frustrating.
> 
> He'll be in with a good chance of a B2 when you're resident in the UK. Use a US immigration lawyer to prepare your application.


Actually, he should have an excellent chance once she has Permanent Residence status in the UK. Right now, the Embassy is concerned that he will go to the US on B-2 and get married. That concern will be allayed if the US Citizen wife has Permanent Residence status and is living in the UK.


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