Marriage to USC while on vacation in USA

[Hell's Kitchen 0]

Hi Folks,

A quick question for you all... I have a friend (yeah, i know what you're thinking, but he really is a friend) who recently got married to a Spanish citizen while she was on vacation here in New York. She entered on the Visa Waiver program in February so her status is good until May.

My question is...does she have to return to Spain while her papers are being processed or can she stay here in the States with her husband during that period?

A follow-up question...in the event she does have to return to Spain, can she re-enter the States to visit her husband while the papers are pending?

Thank you all in advance.

HK

[Hell's Kitchen 0]

Oh...one more thing, not that it matters in the grand scheme of things...but the newly married Spaniard is now pregnant.

[ChristinaM 0]

If said Spanish citizen did not intend to immigrate on entry to the US, they can file for an adjustment of status here in the US. I-130, I-485, all the usual stuff that goes with it.

If they were previously engaged and she had plans to stay in the US beyond the 90-day VWP, she should go home and file K3. She can remain the length of her I-94, but should not overstay.

The only thing a pregnancy will affect is the medical.

[chocolaterie 0]

clmarsh is right. She can stay here and adjust status if there was no prior intent to immigrate (which it sounds like). File the I-130 and I-485 concurrently, and EAD and AP if she wishes to work or travel outside of the US while the papers are being processed.

[scroll 0]

If she leaves the US before adjusting status, she most probably will not be allowed back in without a k-3 or a cr-1. So take that into consideration

A follow-up question...in the event she does have to return to Spain, can she re-enter the States to visit her husband while the papers are pending?

HK

NO

[ChristinaM 0]

Scroll, that's not true. Provided she has not overstayed the VWP, she can use it to reenter whilst her papers are pending. There is, however, a higher-than-usual possibility that she will be heavily questioned at the POE, and possibly denied entry due to having immigrant intent. People have had mixed experiences.

[scroll 0]

Scroll, that's not true. Provided she has not overstayed the VWP, she can use it to reenter whilst her papers are pending. There is, however, a higher-than-usual possibility that she will be heavily questioned at the POE, and possibly denied entry due to having immigrant intent. People have had mixed experiences.

While it may not be true, my experience tells me it is not a chance I would take. The consequences of being charged with misrepresentation, rightfully so or not, are way too high.

Edited March 29, 2006 by scroll

[aussiewench 9]

Have a read HERE for info on filing for AOS when in the US.

Also.......from US Consular Services Australia website (it would apply across the board)

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.

[meauxna 15]

Scroll, that's not true. Provided she has not overstayed the VWP, she can use it to reenter whilst her papers are pending. There is, however, a higher-than-usual possibility that she will be heavily questioned at the POE, and possibly denied entry due to having immigrant intent. People have had mixed experiences.

While it may not be true, my experience tells me it is not a chance I would take. The consequences of being charged with misrepresentation, rightfully so or not, are way too high.

Then that is what you should say, that that is your opinion and how you would do it.

There is no legal bar against entering the US while you have a petition or application pending.

Although, I think you should explain your misrepresentation comment. How is a visit (what the OP characterized it as) misrep?

[scroll 0]

Scroll, that's not true. Provided she has not overstayed the VWP, she can use it to reenter whilst her papers are pending. There is, however, a higher-than-usual possibility that she will be heavily questioned at the POE, and possibly denied entry due to having immigrant intent. People have had mixed experiences.

While it may not be true, my experience tells me it is not a chance I would take. The consequences of being charged with misrepresentation, rightfully so or not, are way too high.

Then that is what you should say, that that is your opinion and how you would do it.

There is no legal bar against entering the US while you have a petition or application pending.

Although, I think you should explain your misrepresentation comment. How is a visit (what the OP characterized it as) misrep?

"Also.......from US Consular Services Australia website (it would apply across the board)

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. "

As I understood the situation, the OP entered with legal non-immigration intent and paperwork. While in the US legally the OP decided to marry. Since that decision was made after being in the US legally the OP could file to adjust status while still in the US.

If the now-married to a USC OP leaves the US and tries to re-enter on the non-immigrant paperwork, she could be denied admission and charged with misrepresentation for trying to enter with non-immigrant paperwork while actually being married to a US citizen and planning to adjust status.

If the now married OP did not plan to immigrate than she could enter with the non-immigrant paperwork. The risk would be convincing the immigration officials at the POE that she was only coming into the US for a visit. That is where the possible charge of misrepresentation, rightly so or not, could come into play.

[meauxna 15]

Scroll, that's not true. Provided she has not overstayed the VWP, she can use it to reenter whilst her papers are pending. There is, however, a higher-than-usual possibility that she will be heavily questioned at the POE, and possibly denied entry due to having immigrant intent. People have had mixed experiences.

While it may not be true, my experience tells me it is not a chance I would take. The consequences of being charged with misrepresentation, rightfully so or not, are way too high.

Then that is what you should say, that that is your opinion and how you would do it.

There is no legal bar against entering the US while you have a petition or application pending.

Although, I think you should explain your misrepresentation comment. How is a visit (what the OP characterized it as) misrep?

"Also.......from US Consular Services Australia website (it would apply across the board)

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. "

As I understood the situation, the OP entered with legal non-immigration intent and paperwork. While in the US legally the OP decided to marry. Since that decision was made after being in the US legally the OP could file to adjust status while still in the US.

If the now-married to a USC OP leaves the US and tries to re-enter on the non-immigrant paperwork, she could be denied admission and charged with misrepresentation for trying to enter with non-immigrant paperwork while actually being married to a US citizen and planning to adjust status.

If the now married OP did not plan to immigrate than she could enter with the non-immigrant paperwork. The risk would be convincing the immigration officials at the POE that she was only coming into the US for a visit. That is where the possible charge of misrepresentation, rightly so or not, could come into play.

To be fair, I know where you are going with this, and I understand what you are trying to say. An alien married to a USC, with a pending immigrant petition AND attempting to enter the US *does* have a higher burden of immigrant intent to deal with.

However, an honest beneficiary, armed with sufficient evidence of ties to their home country, who sincerely wants to visit does have a fighting chance at admission (tales here weekly of successful visits). My point is that there is no law *barring* them from visiting.

As to the misrep, unless they flat lie to the CBP officer about their intentions, their marital status, their pending petition or another material fact, the mere act of applying for entry at the POE is not in itself a misrepresentation, unless I've completely misunderstood this for a long time (all things are possible!).

[aussiewench 9]

AOS in the US after marriage to USC is very very common. It is not the US governments position to keep couples apart if one has been inspected, granted entry, marry and apply for AOS. Most things are forgiven if one is otherwise eligible, no different to eligibility of one applying for a K or CR-1 visa.

Note: Im with you Mo

Edited March 29, 2006 by aussiewench

[scroll 0]

Yes, I too understand what you are saying. I err on the side of caution. Thanks for the mentoring.