Using ESTA to enter the US, when I also have an expired K1

Question

My fiancé and I decided we would not use the K1 visa as we were not quite ready to get married.

It has now expired, but before it did, we told the embassy we were not using it, and the embassy said that we could send the K1 pack back to them which we did by registered post.

I asked whether they also needed my passport to cancel the visa - or to put some sort of stamp on it to say the visa is not going to be used. They said no, as the visa was due to expire in a few days and I wasn't travelling before it expired.

So, my question is, can I enter the USA on an ESTA for a holiday, so I can visit my daughter who is a US citizen? I do have a lot of travel history to the USA under ESTA (about 16-18 trips on my current passport over the last 5 years), though there is an expired K1 visa on my passport now.

Answer 1

There is no rule that having had a K-1 visa will preventing you from visiting on the Visa Waiver Program or using an existing ESTA if you have one (I don't believe your answers to any of the questions on the ESTA would have changed by your having being petitioned as a fiancée and having gotten a K-1 visa).

However, having a US-citizen fiancé raises questions about immigrant intent; and more so in your case because you guys had gone through the whole process of getting a fiancé visa, which demonstrates that you very recently had serious intent to immigrate to the US. So the burden of proof that you are not going to use this trip to immigrate to the US is going to be higher. It would be so easy for you to, after entering the US, decide to marry your fiancé and then apply for Adjustment of Status in the US. So be prepared to face scrutiny about that from the immigration officer.