I-485 and visitors visa

[kvinna 0]

I posted in another sub-forum, but I didn't get an answer. I am hoping that this sub-forum has enough traffic!

We will be mailing the I-130, I-485, I-765 at the same time. (Do these get mailed to the same place??!)

He traveled here with the I-94W, but we are now married. Is it acceptable to file with the I-94W or will he HAVE to go home and go through the process of getting the I-94 visa?

[zyggy 9]

I posted in another sub-forum, but I didn't get an answer. I am hoping that this sub-forum has enough traffic!

We will be mailing the I-130, I-485, I-765 at the same time. (Do these get mailed to the same place??!)

He traveled here with the I-94W, but we are now married. Is it acceptable to file with the I-94W or will he HAVE to go home and go through the process of getting the I-94 visa?

Well that depends.. was it your intention to get married at the time that your then fiancee entered the US or not.. if you did have the intent, then entering the US on a visitor non-immigrant status with the intent of immigrating to the US is enrtry fraud and carries high penalties with it... If you didn't.. then risk risk comes in the form that you may have to prove the fact to the adjudicator during your interview that it was not your intention at the time fo entry.. Do you have evidence of your intention.. if so, are you confident that your evidence would be acceptable to a USCIS adjudicator...

I'm posting what I stated on the same type of question below...

No one on here can tell you if you're in the clear nor not.. if there will be problems or not.. as with everything there is a degree of risk involved... it just depends on what type of risk you want to take and how much of the risk of failure are you willing to take on yourselves....

The option with the least risk is the K3 option... However, this will require you to return back to the UK... this may or may not be a good option for you.. do you wish to return to your job, do you wish to be able to get your affairs in order, is there any reason that you would have to return back to the UK (it is generally recommended by most attorneys that you do not leave the US for any reason until you get the GC if you are trying a tourist adjustment). The risk of denial in this case would be due to the USCIS adjudicator believing that you marriage was entered into due to your need to circumvent US immigration laws... since you already have a child and have been ina relation with this woman for a long period of time, that would probably not be an issue...

The option which you are considering has more risk involved due to the fact that not only may you have to prove the validity of your relationship, but you may have to prove that it was not your intention to get married and remain in the US at the time of your entry... you may be requested to provide evidence of your intentions at the time of your entry.. this is were a consultation with a experienced attorney will be able to help you determine what evidence would be reqired and if the evidence you have would be suitable...

Remember that since you entered on VWP, the decision of the adjudicator will be final and you will not be able to appeal the decision. There have been occassions where evidence that was presented seemed suitable to the applicants, but was not deemed suitable by the adjudicator and they were placed in removal proceedings... You will however, be able to have a removal hearing in front of an immigration judge as long as you are still admitted in the US.. If you have been paroled (if you leave the US and use advanced parole), you may not even have this option..

No one here can give you definite suggestions or make up your mind for you... you alone have to weigh the relative risks and make your own decision...

Best of luck...

[Kez/JWolf 6]

If you did not come with intent to remain then your I-94w is fine... there are many of us who have adjusted from VWP/Tourist visa and had no problems... but yes you do give up your right to appeal if denied and you can not under any circumstances leave the USA until you have your Greencard or you will be refused.... even if you apply for AP

Good Luck

Kezzie

[kvinna 0]

No, he did not come with the intent to marry. We were actually going to start the I-129F process (we have ALL the paperwork in envelopes ready to go). My friend who works closely with Immigration talked to some people and they told me to hurry up and get married and file everything before his visitor's visa runs out. So that's what we're doing. Proof that we did not have the intent to marry? Would letters from family and friends suffice? The paperwork that we had filed for I-129F? I mean, how can one actually prove that?

[zyggy 9]

If you did not come with intent to remain then your I-94w is fine... there are many of us who have adjusted from VWP/Tourist visa and had no problems... but yes you do give up your right to appeal if denied and you can not under any circumstances leave the USA until you have your Greencard or you will be refused.... even if you apply for AP

Good Luck

Kezzie

Kez..

It's nice that you think so, and it's nice that the OP may think so, and it may be nice if others think so, and it may be nice that an attorney thinks so, but the only opinion that matters is if the USCIS adjudicator that hears the case thinks so.. and no one will know what that is until the time comes... that's the risk in the tourist adjustment...

We as a community needs to spell out those risks more completely so that others can make a more informed decision...

No, he did not come with the intent to marry. We were actually going to start the I-129F process (we have ALL the paperwork in envelopes ready to go). My friend who works closely with Immigration talked to some people and they told me to hurry up and get married and file everything before his visitor's visa runs out. So that's what we're doing. Proof that we did not have the intent to marry? Would letters from family and friends suffice? The paperwork that we had filed for I-129F? I mean, how can one actually prove that?

Does he still have an apartment that he left behind.. did he quit his job after deciding to stay.. what did he do with his possessions, did he have to sell his car... family and friends aren't going to do you much good... information and evidence from third parties is much more convincing...

This is where a consulatation with an attorney is critical.. this is where you can talk about your case with a professional, present your evidence and see how he or she thinks it will fly and diccuss the risks with you..

Edited April 21, 2006 by zyggy

[kvinna 0]

He did start bringing clothing over, but that's about it. He didn't have a car or job to begin with. He was a student, but he quit going when he came over to visit me and he wasn't planning on going back once he returned and waited to go through the visa process for the I-129F.

I'd also like to add that his I-94W expires on May 9th. Obviously, we're doing all this at the last minute because we had never thought to do it in the first place. We were always scared of the risks involved (having read this site hundreds of times while researching the I-129F!) but my friend asked people at the district office here in Houston and they said to go ahead and get married and file.

[zyggy 9]

He did start bringing clothing over, but that's about it. He didn't have a car or job to begin with. He was a student, but he quit going when he came over to visit me and he wasn't planning on going back once he returned and waited to go through the visa process for the I-129F.

Well... doesn't look like you have very much... go to an attorney and talk it over.. you can just get a consultation, you don'thave to have the attorney do the paperwork if you don't want to...

but remember.. it's your life and your case.. you need to talk this over with your spouse and weigh out the risks including talking about what you will do if the case goes south and he has to possibly return to his home country...

Is being apart for a few months worth the risk of denial no matter how small it may be... No one else can make that decision for you..

There is a Supreme COurt decision that states that the government is not responsible for what they tell you.. in reality 99 out of 100 people at the DO may have told you that.. but what happens if you get the 1 that doesn't agree... they're the one who decides the case not the other 99

Edited April 21, 2006 by zyggy

[kvinna 0]

Thank you for your time and answers. And yes, people need to seriously think about the risks involved when thinking that they want to go this route.

Edited April 21, 2006 by kvinna

[ChristinaM 0]

I agree - you need to consider the risks and your personal risk tolerance. You may decide to move ahead with the AOS, or you may decide to get married and file for a K3, or to simply proceed with the K1 as you had planned.

In all fairness, more is better in terms of evidence of return. However, it's not necessarily the be-all and end-all. Personally I had no home in the UK, no job (I'd been working on a cruiseship) and very limited "ties" in the classical sense, and I was approved. But more is definitely better.

Good luck, whichever route you take!

[Kez/JWolf 6]

Zyggy

I can only reply with the personal knowledge that I have.... and others that I know about...

Where would you sugest people send this proof that you say they need... I was never asked to produce any proof other than my word when asked at POE why I was visiting the states...

I was at no time asked by USCIS to provide proof of my intent or evedence of what I had left behind.....

and most others who have completed the AOS process will tell you the same thing.....

I know you dont like the loophole (as you see it) that allows for AOS from VWP but it is the law and as long as it is then there is nothing wrong in using it....

Kezzie

[kvinna 0]

Another quick question about denial....

Would we be able to re-apply at a later date?

Edited April 21, 2006 by kvinna

[zyggy 9]

Zyggy

I can only reply with the personal knowledge that I have.... and others that I know about...

Where would you sugest people send this proof that you say they need... I was never asked to produce any proof other than my word when asked at POE why I was visiting the states...

I was at no time asked by USCIS to provide proof of my intent or evedence of what I had left behind.....

and most others who have completed the AOS process will tell you the same thing.....

I know you dont like the loophole (as you see it) that allows for AOS from VWP but it is the law and as long as it is then there is nothing wrong in using it....

Kezzie

Whether or not I like the so called "loophole" or not is not consequential... whether or not you may have been asked out not at the POE is not consequential... whether or not you were asked about it at the interview is not consequential...

What IS consequential is that the risk is there... and we have a responsibility to spell it out and let people make their OWN choices based on what those risks really are... I would be sick with myself if I told someone that is is ok to just go ahead and then something goes horribly wrong... we are talking about people's lives here... it's nice that yours went ok... but don't run to the assumption that others will have the same experience as you...

[Kez/JWolf 6]

I was told by my lawyer that if for some reason we were denied we could not appeal that desision but there would be nothing to stop us from filing a K3 and return to my country for the interview...

Hope this helps

Kezzie

[zyggy 9]

Another quick question about denial....

Would we be able to re-apply at a later date?

If you are denied, it would be likely due to a finding on the part of the adjudicator that there was a misrepresentation made at the POE... if this happens, you will be permitted to apply again for a visa.. However, waivers of removal and inadmissibility would probably be required...

Edited April 21, 2006 by zyggy

[Kez/JWolf 6]

I do always point out that they give up there right to appeal and they can not leave the States until they have their greencard....

But as we all know their are risks in everything we do.... it is up to the individule to make up their own mind and or seek legal advice...

Kezzie