Korean Job Discussion Forums

[pangaea]

My fiance is planning to come visit me in the US after I go home this summer. I am just wondering - will it be any problem for him to get a tourist visa after I have filed the application for his fiance visa? Would it cause any problems if I filed the application after he gets to the US on a tourist visa? I have checked the US Immigration website and I can't find an answer to my questions. Has anyone been in a similar situation or have any advice?

[Drew10]

Why would you file for a fiance visa if you're just going to use a tourist visa?

The fiance visa is only good for 90 days, same as any tourist visa. There are some things that your fiance will have to do if he plans on entering on a fiance visa because it's geared towards immigration where a tourist visa is not. So if you didn't use the fiance visa, it's possible your fiance would have to return to his home country and complete some of the requirements needed to adjust to a green card.

[pangaea]

Drew10 wrote:

[hellofaniceguy]

With the State Department issuing visas'...it's hit or miss....two people can have the EXACT same documents, money, sitution, etc. and one will get approved and the other won't.
If you get the tourist visa approved first...just get married instead of waiting for the marriage visa..
just because korea is part of the VWP...they still have to apply for permission....whereas the Japanese and others on the VWP can just board plane to the US....
fly to Guam...get married and return to korea is an easy option.
Once married...the fun begins....tax returns, etc. are then needed for the application process.

[pangaea]

My fiance is not Korean and we are not thinking about getting a spouse visa at this time. If he comes to the US on a tourist visa, I don't think we can just get married and change his status. If it were that easy, everyone would do it. I'm pretty sure we would have problems with Immigration if we tried to circumvent the legal immigration process. We want to be together, but we want to do it legally.

[CentralCali]

[pangaea]

Maybe I'm not being clear, but it appears that no one understands my question. I don't need to know about getting married or getting a spouse visa. I have already done research on getting married here, getting a spouse visa, or getting a fiance visa. My question is, has anyone applied for their partner's fiance visa after that person is already in the US on a tourist visa. I don't want to screw up my fiance's chances of getting an immigrant visa if we do something that Immigration considers questionable or if they think that we are just trying to get around the legal immigration process. Also, if I have already applied for the fiance visa, will my fiance be able to come visit me on a tourist visa while the fiance visa is still being processed? I can't find the answers to my questions on the website and thought someone on this board might have been in a similar situation before.

[English Matt]

[jungfreud]

Lot of misinformation here, so let me start at the beginning:

If I understand your situation correctly, you are currently applying for a K-1 fiance visa for your fiance, and while this is processing you wish for him to travel to the United States on a short term basis by applying for and using a B1/B2 tourist visa or the Visa Waiver Program to travel.

The first thing you should know is if you are an American citizen living in Seoul and your fiance is a Korean citizen or other foreign national, you have the option of getting married here and simply applying for an immigrant visa for your spouse by filing a form I-130 with the USCIS office at the American Embassy. This is the simplest option, as it allows all processing to take place in Seoul and your spouse will essentially be issued a green card upon entering the US. This is the method most miltary families in Korea take.

The fiance visa is not a good fit for you, since it takes around 6 months to process, allows you to enter the US for 3 months during which time you must either marry or leave the US, and then (for a huge additional cost) you must file form I-485 to adjust status, which requires your then spouse to live in the US for a year or more without leaving (even for short periods) until his adjustment to LPR status is complete. Unless your plan is to settle permanently in the US in the near future, this is going to be difficult for you. If that is your plan, then a K-1 visa is an OK way to do it, but honestly just taking care of it the way I mentioned before is much easier (and cheaper).

On to your actual question. A visa simply allows you to enter the United States. A K-1 will allow your fiance to enter since it assumes you will get married while you are there. However, if you enter on a B1/B2 tourist visa, your status is B1 or B2 (B2 in your case) until you leave the US, or you adjust status. You cannot adjust status to K-1, so the fiance visa is meaningless in this case, or only good for a subsequent trip. You have to understand the K-1 does not automatically grant any legal status in the US, it simply gives permission to enter. Your fiance will not obtain LPR status until he adjusts to it.

It is quite common that people enter the US on a tourist visa (B1/B2)and then attempt to adjust status to LPR (having married an Amcit). This is not technically illegal, but is frowned upon and will often result in having your request to adjust status refused and/or your visa revoked if it was found your fiance misrepresented his intent of travel on his visa application. Simply put, your are expected to hew closely to your stated intent of travel and visa classification, and any attempt to deviate from that is viewed with suspicion. Basically you are playing with fire if you choose this option, and it is likely it will affect any further visa applications or status adjustments your spouse makes.

So, all that being said, there is something in US immigration law called "dual intent". It basically means that even if someone has an immigrant visa pending, he may have legitimate reasons to travel to the US in the interim. This seems to be the case in your circumstance. When your fiance goes to the Embassy to apply for his visa, he will have to clearly state to the Consular Officer why he needs to go to the US while he is waiting for his K-1 visa, and he will probably have to say it again at Customs when he enters the US. In this case having a pending fiance visa actually helps you, because the suspicion that he may intend to marry you, adjust status, and remain in the US seems less likely if you are already pursuing the appropriate visa. I would state clearly upfront that the K is pending and then explain why you need to go on this particular trip and what plans you have when you return (job, taking care of family, what have you, anything that shows your fiance will be returning to Korea in the interim).

This is essentially what I did with my wife before I came to Korea, though I wished I had known about the USCIS office in Seoul before I tried to do everything in the States. Dealing with USCIS here in Korea is much easier and the process moves far faster.

Just to be clear though, if you enter on the B1B2 tourist visa your fiance will need to leave the US and appear for an interview in the country you applied for the K in. There is no lateral move to K status without exiting/reentering. If I could make a recommendation, I would just do a legal ceremony here, take your certificate and all the other required paperwork to USCIS on the third floor of the Embassy, and get your I-130 going, they can turn it around in a month, your fiance can enter the US and receive his green card with no restrictions, and you will save about 1100 bucks and have the freedom to travel. It's win win. You are looking at a much more proctrated process if you try to do all this in the US.

[jungfreud]

Lot of misinformation here, so let me start at the beginning:

If I understand your situation correctly, you are currently applying for a K-1 fiance visa for your fiance, and while this is processing you wish for him to travel to the United States on a short term basis by applying for and using a B1/B2 tourist visa or the Visa Waiver Program to travel.

The first thing you should know is if you are an American citizen living in Seoul and your fiance is a Korean citizen or other foreign national, you have the option of getting married here and simply applying for an immigrant visa for your spouse by filing a form I-130 with the USCIS office at the American Embassy. This is the simplest option, as it allows all processing to take place in Seoul and your spouse will essentially be issued a green card upon entering the US. This is the method most miltary families in Korea take.

The fiance visa is not a good fit for you, since it takes around 6 months to process, allows you to enter the US for 3 months during which time you must either marry or leave the US, and then (for a huge additional cost) you must file form I-485 to adjust status, which requires your then spouse to live in the US for a year or more without leaving (even for short periods) until his adjustment to LPR status is complete. Unless your plan is to settle permanently in the US in the near future, this is going to be difficult for you. If that is your plan, then a K-1 visa is an OK way to do it, but honestly just taking care of it the way I mentioned before is much easier (and cheaper).

On to your actual question. A visa simply allows you to enter the United States. A K-1 will allow your fiance to enter since it assumes you will get married while you are there. However, if you enter on a B1/B2 tourist visa, your status is B1 or B2 (B2 in your case) until you leave the US, or you adjust status. You cannot adjust status to K-1, so the fiance visa is meaningless in this case, or only good for a subsequent trip. You have to understand the K-1 does not automatically grant any legal status in the US, it simply gives permission to enter. Your fiance will not obtain LPR status until he adjusts to it.

It is quite common that people enter the US on a tourist visa (B1/B2)and then attempt to adjust status to LPR (having married an Amcit). This is not technically illegal, but is frowned upon and will often result in having your request to adjust status refused and/or your visa revoked if it was found your fiance misrepresented his intent of travel on his visa application. Simply put, your are expected to hew closely to your stated intent of travel and visa classification, and any attempt to deviate from that is viewed with suspicion. Basically you are playing with fire if you choose this option, and it is likely it will affect any further visa applications or status adjustments your spouse makes.

So, all that being said, there is something in US immigration law called "dual intent". It basically means that even if someone has an immigrant visa pending, he may have legitimate reasons to travel to the US in the interim. This seems to be the case in your circumstance. When your fiance goes to the Embassy to apply for his visa, he will have to clearly state to the Consular Officer why he needs to go to the US while he is waiting for his K-1 visa, and he will probably have to say it again at Customs when he enters the US. In this case having a pending fiance visa actually helps you, because the suspicion that he may intend to marry you, adjust status, and remain in the US seems less likely if you are already pursuing the appropriate visa. I would state clearly upfront that the K is pending and then explain why you need to go on this particular trip and what plans you have when you return (job, taking care of family, what have you, anything that shows your fiance will be returning to Korea in the interim).

This is essentially what I did with my wife before I came to Korea, though I wished I had known about the USCIS office in Seoul before I tried to do everything in the States. Dealing with USCIS here in Korea is much easier and the process moves far faster.

Just to be clear though, if you enter on the B1B2 tourist visa your fiance will need to leave the US and appear for an interview in the country you applied for the K in. There is no lateral move to K status without exiting/reentering. If I could make a recommendation, I would just do a legal ceremony here, take your certificate and all the other required paperwork to USCIS on the third floor of the Embassy, and get your I-130 going, they can turn it around in a month, your fiance can enter the US and receive his green card with no restrictions, and you will save about 1100 bucks and have the freedom to travel. It's win win. You are looking at a much more proctrated process if you try to do all this in the US.