Going to school

[lostunderwaves 0]

My husband and I have filed for the I-130, but still haven't received a receipt or anything. We were wondering, however, is my husband able to go to school while he's here and waiting on paperwork to be approved? He came to the States on Dec. 19 on a visa waiver from England, which expired March 19. We sent the I-130 and G-325As, but that was all. So for him to be able to go to college, what would we need to do/send? Or would we need to wait until he gets his visa and all that?

[scy 0]

My husband and I have filed for the I-130, but still haven't received a receipt or anything. We were wondering, however, is my husband able to go to school while he's here and waiting on paperwork to be approved? He came to the States on Dec. 19 on a visa waiver from England, which expired March 19. We sent the I-130 and G-325As, but that was all. So for him to be able to go to college, what would we need to do/send? Or would we need to wait until he gets his visa and all that?

I take it your husband doesn't intend to go back to England? Is he adjusting status inside the US? Do you realize that as of this moment your husband is an illegal alien in the US?

In order for your husband to go to a public school, he must have legal status. Your husband has to file for adjustment of status to keep his status legal. Perhaps you should seek the advice of a good immigration attorney before you dig too deep a hole you can't get out of.

[Fischkoepfin 1]

You're in a tough position because his visa expired without you filing for AOS and because he entered the country on VWP with the intention to overstay (even if he didn't intend it, it will be hard to convince USCIS). You might want to consult with a lawyer on how to proceed.

Forget about schools. First of all, no school will accept international students who are not legally in the country or entered on VWP because it will cause the school problems. Second, even if you found a school, you'd be hard-pressed to find one that would enroll students right now.

You can either let him go back to England and then do a K3 (file I-129f), or you need to file I-485 as soon as possible, ideally within the next few days, and hope that they'll agree to adjust status. That way there's a chance he could enroll by next fall if you're lucky.

[aussiewench 9]

He came to the States on Dec. 19 on a visa waiver from England, which expired March 19. We sent the I-130 and G-325As, but that was all.

You only filed the I-130 and G-325A to where?

To have him remain in the US the above should of been filed along with the I-485 to adjust status with your local USCIS office.

Have a read here

http://www.visajourney.com/forums/index.php?autocom=custom&page=i130guide2

Edited March 26, 2006 by aussiewench

[aussiewench 9]

You're in a tough position because his visa expired without you filing for AOS and because he entered the country on VWP with the intention to overstay (even if he didn't intend it, it will be hard to convince USCIS). You might want to consult with a lawyer on how to proceed.

Where did it state that he entered with the intention to overstay?

Even with the overstay it will be overlooked because of marriage to USC...and providing one is otherwise eligible, one can apply to adjust status. I agree though that considering the OP appears to of not filed correctly, that they should consult a lawyer.

From US Consulate Australia website.

If you intend to remain permanently in the U.S., attempting to enter on a nonimmigrant visa or under the visa waiver program is not advisable and could result in your involuntary return to Australia. In order to be granted admission on a nonimmigrant visa or under the visa waiver program, you must prove that you have a residence outside the U.S. to which you intend to return, at least temporarily. It is at the discretion of U.S.C.I.S. at the port of entry whether to admit a traveler in that case.

If you are granted entry you can make an application to U.S.C.I.S. for an adjustment of status. If your application is approved, U.S.C.I.S. will give you permission to remain in the U.S. whilst you conclude processing your adjustment of status application. If they reject your application, you will be required to depart the U.S. and apply for an immigrant visa at the U.S. Embassy or Consulate in your country of residence.

[Fischkoepfin 1]

You're in a tough position because his visa expired without you filing for AOS and because he entered the country on VWP with the intention to overstay (even if he didn't intend it, it will be hard to convince USCIS). You might want to consult with a lawyer on how to proceed.

Where did it state that he entered with the intention to overstay?

Even with the overstay it will be overlooked because of marriage to USC...and providing one is otherwise eligible, one can apply to adjust status. I agree though that considering the OP appears to of not filed correctly, that they should consult a lawyer.

It didn't say that; you're right. But from what I understand, USCIS will be hard to convince that there wasn't immigration intent. And that's all I wanted to point out...

As to not filing correctly, that shouldn't matter since it is possible to AOS separately and NVC will ask you whether you want to AOS in the US once they receive I-130 anyway. It's more complicated, but not as much of a problem as the overstay on VWP.

[aussiewench 9]

You're in a tough position because his visa expired without you filing for AOS and because he entered the country on VWP with the intention to overstay (even if he didn't intend it, it will be hard to convince USCIS). You might want to consult with a lawyer on how to proceed.

Where did it state that he entered with the intention to overstay?

Even with the overstay it will be overlooked because of marriage to USC...and providing one is otherwise eligible, one can apply to adjust status. I agree though that considering the OP appears to of not filed correctly, that they should consult a lawyer.

It didn't say that; you're right. But from what I understand, USCIS will be hard to convince that there wasn't immigration intent. And that's all I wanted to point out...

As to not filing correctly, that shouldn't matter since it is possible to AOS separately and NVC will ask you whether you want to AOS in the US once they receive I-130 anyway. It's more complicated, but not as much of a problem as the overstay on VWP.

Not really that hard to show proof that one didnt have intent IF one is asked to show that and if one hasnt lied at POE, has been inspected and admitted. It happens more then people realise and is legal.

Adjusting status whilst in the US after entering on VWP or a non-immigrant visa, marrying and filing all the relevent paperwork is totally different. NVC has nothing to do with an I-130 when the non USC is already in the US, which is why all the paperwork is filed together to the local USCIS Office. This is where they are going to run into difficulties if they havent filed correctly and why they should seek legal counsel to sort it out.

As for overstay..........

Otherwise Eligible Immediate Relatives

If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

* worked without permission,

* remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

* failed otherwise to maintain lawful status and with the proper immigration documentation, or

* have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively).

Please note: If a person came into the U.S. illegally, that person is barred from adjusting their status to LPR (cannot obtain a green card) even if he or she marries a U.S. citizen or otherwise becomes an immediate relative. An immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”

http://uscis.gov/graphics/howdoi/LPReligibility.htm

Edited March 26, 2006 by aussiewench