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Should I wait 60 days to get married on a visa-waiver program?

Los Angeles, CA |

My american fiance and I have filed a K1 visa application, but only received the NOA1 for that, and I just came here to visit him with the visa-waiver prgm.
We then saw an attorney, who told us that it would not be ready until next June or so because of the backlog. We then decided to get married while I am here as a tourist. We were recommended to wait until after 60 days to get married, which would also give us enough time to get the receipt of the AOS before the end of my 90-day period. But another attorney told us that the backlog will make it almost impossible for us to get the receipt in time.
Is it absolutely impossible to have a lapse of time between the end of the 90 days and the receipt? Is getting married before the 60-day limit that dangerous? What should we do?

Attorney Answers 3

Posted

Talk to your immigration attorney. There is a presumption of fraud when you get married within the first 30 days of entry. The presumption is still there in the next 30 days, but burden of proof changes. If you wait at least 60, there is no presumption, although it can still be argued. You really need to talk with your attorney, going through all the facts.

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Posted

Do what the lawyer you hire advises. BTW, once the adjustment of status application is filed you are allowed to legally remain in the U.S. and do not accrue unlawful status until the application is adjudicated.
Ron Tasoff
Certified Immigration Law Specialist*
Law Offices of Tasoff and Tasoff
16255 Ventura Blvd. Suite 1000
Encino, California 91436
(818) 788-8900

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Posted

I respectfully disagree that filing an adjustment of status application makes your stay here safe. VWP entrants have different rules than everyone else, and an administrative removal order can still be entered against you after your adjustment application is pending. An if that happens, your adjustment will be denied. You're playing a risky game, and I suggest you keep meeting with attorneys until you find someone who makes you 100% confident in his or her advice (which you don't seem to be yet).

Also, NOA1 is not a real thing. My guess is that you've picked up that terminology from something like visajourney.com and have been led to believe its a real legal name. It's not. It's the filing receipt, and calling it that will help attorneys better understand what you're talking about.

THIS ANSWER IS FOR INFORMATIONAL PURPOSES ONLY, DOES NOT CONSTITUTE LEGAL ADVICE, AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Immigration is complicated and the wrong action can have serious consequences. Never take action in your case based solely on general information like is offered here. Speak to an attorney who can give you specific advice about your own situation.

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Ronald Jeffrey Tasoff

Ronald Jeffrey Tasoff

Posted

Quite right Ms. Allen! I neglected to consider the unpublished and outrageous 9th Circuit Decision of Kenny v. Smith. See an excellent summary by Johnathan Montag can be found at http://www.montaglaw.com. /articles/articles_16.html Of course, there is very little the questioner can do about it.... and for the most part it is very unlikely that just by filing the application (preferably before the 90 days expires) that he will come to the attention of ICE. Apparently Mr. Kenny was unlucky enough to be arrested for something he apparently didn't do (no charges were filed) and even more unlucky to have judges whose understanding of immigration law does not comport with the law, reason or any sense of compassion, review the matter.

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