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July 7, 2008: B-2 vs. K-1 vs. K-3 Visa, Which Is Appropriate?

B-2 vs. K-1 vs. K-3 Visa, Which Is Appropriate?

I have a multiple entry tourist visa to the US. I am planning to fly in and marry my US citizen fiance later in the year but wish to leave the country without filing for adjustment of status to permanent residency. We plan to have a church ceremony in my home country after 2 months, and then fly back to the US to file for my residency then. Is this ok or do I need to stay in the US until I adjust my status? Will they have reason not to allow me to reenter using my tourist visa?
— Anon

There are serious issues with your departure from the USA after a civil marriage ceremony, and a subsequent re-entry into the United States after a trip abroad on your visitor visa with the intent to become a permanent resident. Don’t do it! You will be committing non-immigrant visa fraud. If the admissions officer asks you and it is discovered that you are married to an American citizen and that your true intention is to remain permanently and not for purpose of temporarily visiting for pleasure, you will be denied admission. Even if you are not questioned about the reason for your travel or the marriage does not get revealed, you would be misrepresenting yourself upon entry if the true reason for the trip to the U.S. is to apply for adjustment of status.

Your fiance’ should consider filing a K-1 fiance’ petition. This will avoid any issues relating to your visitor’s visa. Or have your fiance’ come to you and marry you abroad in the religious wedding you plan to have anyway. Then when your spouse returns to the U.S. a K-3 visa petition can be filed. The K-3 petition essentially asks USCIS to allow you to enter the United States for the purpose of applying for adjustment of status.

Each of these options need to be explained in more detail to you before you decide what to do, since there are other variables to consider. For this reason, I urge you to consult with an immigration attorney who is well-versed in matters such as these.

Michael Shane and Evan Shane, Immigration Lawyers

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