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My wife's sister was has been issued a K-1 visa which is in her German passport. Once she enters the US under this visa, she has to marry her fiancé within 90 days and then submit for a Change of Status before receiving her Work And Travel Authorization documents.

Since this process can take several months, she wants to instead enter the US using her German passport under the VWP (Visa Waiver Program), then take an early vacation with her fiancée to Jamaica, again using her German passport to enter Jamaica. On return from Jamaica to the US, she wants to enter the US using the K-1 visa in her passport, then get married and submit for her change of status.

Is this possible? Can she enter the US under the VWP using her passport even if there is a valid visa in it, effectively choosing not to use it on that entry? Is there a requirement to use a visa on first entry to the United States if one is in your passport and is unused?

I don't know of any such requirement but need to find information on this. It seems to me that this should be possible as long as her visa is still valid and has not expired before she gets back to the US from Jamaica.

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    While it may be possible, might it be easier for her to fly directly to Jamaica, meet her fiance there, and then enter the US, since the K-1 is a single entry visa? CBP will see the K-1 on record, and may make entry on the VWP more difficult. – Giorgio Oct 18 '16 at 2:16
  • I agree that would be easier - however the travel arrangements were not well thought out. I understand it's a single-entry Visa, but I take that to mean you can only enter the country under this Visa once. However, if she simply doesn't use the Visa on her first trip, i don't see why there would be a problem. – MrBubbles Oct 18 '16 at 2:18
  • Having the K-1 in her passport makes it very unlikely the immigration official will accept that she's just there temporarily. – Loren Pechtel Oct 18 '16 at 2:21
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    @Dorothy It's quite difficult and/or expensive to fly to anywhere in the Caribbean without transiting the US. Though there are BA flights LHR-KIN which aren't too expensive. – Michael Hampton Oct 18 '16 at 2:51
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    For your immediate question, I think this is OK, but I don't have an authoritative source, so I can't commit to it. The question may be better asked of an immigration lawyer. It's possible that changing the flight tickets will be cheaper than the lawyer. – Michael Hampton Oct 18 '16 at 3:12
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Technically, this is completely possible. However, I see two potential problems:

  • They may accidentally admit her on the K-1 visa instead of on VWP, because they see the visa and get confused, since it's atypical to not use the visa. If this happens, it will use up her single-use K-1 visa and mean that she probably won't be able to go on the vacation to Jamaica.
  • They may deny her entry on VWP due to immigrant intent, because it is so easy for her to change her mind at any time after entering and stay and marry and adjust status as her spouse is a US citizen.
  • Agree, but the K-1 admission wouldn't be accidental, as she would be asked to present the sealed packet that accompanied her passport with the visa and which contain her documentation. You're right, though, the risk is there although OP comment notes that flights have already been arranged and those may help. – Giorgio Oct 18 '16 at 13:43

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