I-94W waiver visa then I-485

[Germlish 0]

Hi All

First post here after so much searching and reading and filling out forms that my head is about to bust (the movie "Scanners" comes to mind).

I will add more info about my experiences in other posts but I wanted to start with this one - and I'm not even certain I'm in the right forum - moderators, kick me in the seat of my controls as needed.

I am aware of the two "official" (parallel?) paths to get a spouse to the states; I-130 petition, then K3 Visa then form DS-230 Application For Immigrant Visa. Or the K3 can just be dropped and the DS-230 immediately filled out.

Of course this all takes time and no one wants to be separated from a loved one. After finishing all 20 pages of my I-130 today, I figured there must be a better way.

So why not bring spouse to the US on an I-94W waiver visa (for those who are allowed), and submit the I-130 together with the I-485 to adjust status?

Here's what I've found and it would interest me greatly to hear others comments & experiences:

- The I-94W instructions make it clear, the user IS leaving by the end of 90 days, no ifs, ands or exceptions.

+ The I-485 instructions say "... You may apply to adjust status if you are filing with a completed relative petition ..."

+ And the next page says "...You are not eligible to adjust status if you were admitted to the United States as a visitor under the visa waiver program unless you are applying because you are an immediate relative of a US citizen (parent, spouse, etc) ... "

- During the Vegas marriage trip, the immigration desk officer woke up when we told him we were a German/American planning to get married there. He said to make sure to leave after the honeymoon, and when we return to the US, if we do it on a waiver visa, we may be in trouble for hiding intent.

- A phone call yesterday to the USCIS 800 number gave me similar info. It's not illegal, but I think they don't appreciate it - it may jepordize the approval.

It seems to me the problem is with "intent".

I don't want to even think of doing anything illegal, immoral or wrong, but I don't really want to file gobs of paperwork when it is possible to do it much easier.

Therefore, I would like my spouse to come with me with the "intent" to be there, visit me, play tourist, and see if they will allow her to adjust status. Tourisim would be the primary intent, and if it fails, she goes back to Germany and we do it the slow way.

So, did I wake up anyone here?

[diadromous mermaid 36]

Hi All

First post here after so much searching and reading and filling out forms that my head is about to bust (the movie "Scanners" comes to mind).

I will add more info about my experiences in other posts but I wanted to start with this one - and I'm not even certain I'm in the right forum - moderators, kick me in the seat of my controls as needed.

I am aware of the two "official" (parallel?) paths to get a spouse to the states; I-130 petition, then K3 Visa then form DS-230 Application For Immigrant Visa. Or the K3 can just be dropped and the DS-230 immediately filled out.

Of course this all takes time and no one wants to be separated from a loved one. After finishing all 20 pages of my I-130 today, I figured there must be a better way.

So why not bring spouse to the US on an I-94W waiver visa (for those who are allowed), and submit the I-130 together with the I-485 to adjust status?

Here's what I've found and it would interest me greatly to hear others comments & experiences:

- The I-94W instructions make it clear, the user IS leaving by the end of 90 days, no ifs, ands or exceptions.

+ The I-485 instructions say "... You may apply to adjust status if you are filing with a completed relative petition ..."

+ And the next page says "...You are not eligible to adjust status if you were admitted to the United States as a visitor under the visa waiver program unless you are applying because you are an immediate relative of a US citizen (parent, spouse, etc) ... "

- During the Vegas marriage trip, the immigration desk officer woke up when we told him we were a German/American planning to get married there. He said to make sure to leave after the honeymoon, and when we return to the US, if we do it on a waiver visa, we may be in trouble for hiding intent.

- A phone call yesterday to the USCIS 800 number gave me similar info. It's not illegal, but I think they don't appreciate it - it may jepordize the approval.

It seems to me the problem is with "intent".

I don't want to even think of doing anything illegal, immoral or wrong, but I don't really want to file gobs of paperwork when it is possible to do it much easier.

Therefore, I would like my spouse to come with me with the "intent" to be there, visit me, play tourist, and see if they will allow her to adjust status. Tourisim would be the primary intent, and if it fails, she goes back to Germany and we do it the slow way.

So, did I wake up anyone here?

Yes, you awakened me and all I can say is you are dreaming? The "Intent" in this "hypothetical" case would clearly be to remain in the USA. Whatever "guise" adopted, be it as a tourist or otherwise, is nothing more than a guise and strictly against regulations and protocol.

[Kez/JWolf 6]

I slap myself hard across the face..... I MUST BE DREAMING..... oh no its the OP.....

No you cant enter on a VWP and then do AOS if you are already married.... that option is only available to those who marry on the spur of the moment and are prepared to take the risks that are involved with it....

So I sugest you keep filling in those forms......

Kezzie

[Germlish 0]

Good morning diadromous mermaid and kezzie thanks for the fast answers! - DM; yes I probably am dreaming - although the way my head is buzzing from 18+ hours on the PC, hallucinating may be a more appropriate term.

As a matter of principle, this must be illegal because it would be too easy ...

I'll give you the point that the intent (I prefer to call it a hope) is to remain in the states. But, not to remain there illegally, not to overstay any visa permissions, and not to violate any laws or rules. I would also declare - explaining very clearly what I planned to the immigration officer during entry.

As I see it, there are conflicting instructions. One form says no, the other says yes, and the USCIS phone person confirmed that it would not be illegal per se.

Do you know of anyone or have you seen anything in the forums about someone having attempted it? I would sure like to learn from other s mistakes if possible.

Also, do you know of anything written by either USCIS or DOS specifically forbidding the "intent" of trying to remain in the US legally? I'm certain that if a visitor falls madly in love with some they meet in the US and gets married, they could certainly adjust status legally as no intent was there, or?

I don't want to call this hypothetical. If it is acceptable, legal and not going to get me in trouble, I'd do it. If there are regulations against it, I won't. It's just that I'd like to have clear and consice information either way.

[Germlish 0]

Guess I coulda answered this myself but maybe having this info here in the forum isn't sucha a bad idea.

http://www.cbp.gov/xp/cgov/travel/id_visa/vwp/vwp.xml

The link contains the following:

"

Q: Who Is Eligible to Use the VWP?

A: To qualify for the VWP, you must:

- Intend to enter the United States for 90 days or less;

"

Would sure be a nice idea though.

[Kez/JWolf 6]

Germlish

I did it I came on a VWP and got married on the spur of the moment and then filed for AOS.... there are risks involved with doing it this way... you have no right of appeal if your case is denied and it is up to you to have proof that you did not intend to remain in the USA when you were inspected at POE...

I have never known anyone who is already married even attempt to do AOS after entry on a VWP....

Good Luck with whatever you decied to do....

Kezzie

[Germlish 0]

Thanks Kezzie

I've read more in the web in the meantime and it seems that "risks" is putting it mildly - and is probably why the red flag went up for the Vegas immigration officer.

However things go, we certainly won't be doing it this way. The risks include being banned from the states for a long time or longer and neither of us want that. If we have to wait a few more months to be together, then so be it.

If she does arrive here on a visitors visa, she will have to go back for the interview anyway so maybe we can at least be together anyway if the DCF somehow takes too long.

I have the I-130 prepared and ready to be submitted - I'll probably do that next week.

I've posted in the DCF forum and I intend to keep it updated as things progress.

Still - all you lurkers out there - anybody get banned from the USA for attempting this - or did it work?

[Boiler 44,857]

It is possible to appeal a VWP deportation - Freeman v Gonzales

Do married partners enter on a non immigrant visa and subsequently 'change their mind' and adjust - yes.

Do married spouses of USC's get grilled at the POE because of this - yes.

You can not 'try' and see how it goes, you either apply or not, your call.

Publishing your intent on a public newsboard is not the most sensible thing to do if that is your idea.

Edited April 23, 2006 by Boiler

[Germlish 0]

Thanks Boiler

Good that appeal is possible, bad that it'd be needed - but what happens to those grilled married partners? Do they ever get refused entry or denied AOS because they did this?

I could accept hours of grilling if the outcome is days less paperwork and immediate entry to the US for my spouse. She is, however, "English challenged", and I think she may not enjoy a grilling. Besides, there is a risk that she will be refused entry.

By "try" I meant just fly in and see if the POE puts her back on the plane or lets us through AFTER we've been grilled and explained the entire story.

I am publishing this because I want to know, not because I have any intent. - And it's great that so many people have taken the time to talk about this. Besides, were I to do this, I would be very honest about intent at the POE - they should grill the heck out of me.

It's not just that we absolutly want to go over together; we do, but that is not the problem.

Terminations for her job and apartment must be submitted 3 months in advance. If she terminates for end of August, and it takes till December for everything to go through, she will sit with no job and no place to live.

In that case, I will bring her as a visitor with the intent to send her back as soon as the interview is due.

[Boiler 44,857]

Thanks Boiler

Good that appeal is possible, bad that it'd be needed - but what happens to those grilled married partners? Do they ever get refused entry or denied AOS because they did this?

I could accept hours of grilling if the outcome is days less paperwork and immediate entry to the US for my spouse. She is, however, "English challenged", and I think she may not enjoy a grilling. Besides, there is a risk that she will be refused entry.

By "try" I meant just fly in and see if the POE puts her back on the plane or lets us through AFTER we've been grilled and explained the entire story.

I am publishing this because I want to know, not because I have any intent. - And it's great that so many people have taken the time to talk about this. Besides, were I to do this, I would be very honest about intent at the POE - they should grill the heck out of me.

It's not just that we absolutly want to go over together; we do, but that is not the problem.

Terminations for her job and apartment must be submitted 3 months in advance. If she terminates for end of August, and it takes till December for everything to go through, she will sit with no job and no place to live.

In that case, I will bring her as a visitor with the intent to send her back as soon as the interview is due.

1. It is possible to appeal, but under limited circumstances at great costs etc etc. Not somewhere you want to go.

2. I have seen AOS refused for those who entered on a non immigrant visa, but either it is very rare, most likely, or they do not publish their story. They would then be out of status and deportable.

3. There wil not be much of a grilling if you turn up at the POE and when asked about the purpose of your visit you say you are here to stay. You wil be on the next flight back at your expense, assuming of course if the airline lets you board in the first place.

4. And then of course you would need to get past AOS assuming you were able to enter at the POE using a non immigrant visa with immigrant intent.

5. If she has no job and no place to live then how is she going to substantiate non-immigrant intent at the POE?

Obviously many people do use the VWP route in your circumstances, I have no idea what the numbers are, I assume most lie on entry and get away with it, there must be a few who really do have a change of heart.

To any generalisation there is always the exception, there was one lady who did do as you say, turned up at the POE with US Spouse with the intent to stay and was honest about it and was let in. Her Husband was US Military and had been moved from UK I think back to US. I can only assume the POE officer was also ex military and gave her a break.

[meauxna 15]

I could accept hours of grilling if the outcome is days less paperwork and immediate entry to the US for my spouse.

Days less paperwork? You *must* be joking! Spend a bit of time reading in the AOS Forum here to see how long and how much more paperwork it take to Adjust Status vs DCF.

Boiler: is it really accurate to describe Freeman v Gonzales as an appeal of deportation? Her case seems very specific to the widow/"spouse" issue and wouldn't apply to most? Or you're saying that the decision to change over to the rules of 'AOS applicant' v 'I-94W entrant' is sufficient protection? I'm quite wondering about that.. it doesn't seem clear cut enough at all to me.

[Boiler 44,857]

I could accept hours of grilling if the outcome is days less paperwork and immediate entry to the US for my spouse.

Days less paperwork? You *must* be joking! Spend a bit of time reading in the AOS Forum here to see how long and how much more paperwork it take to Adjust Status vs DCF.

Boiler: is it really accurate to describe Freeman v Gonzales as an appeal of deportation? Her case seems very specific to the widow/"spouse" issue and wouldn't apply to most? Or you're saying that the decision to change over to the rules of 'AOS applicant' v 'I-94W entrant' is sufficient protection? I'm quite wondering about that.. it doesn't seem clear cut enough at all to me.

I just used that as a comment aginst the blanket assumption that no appeal is possible.

In practice it is probably true that an appeal is only practical in the most extreme circumstances, that was one example, there may be more, I do not know.

Edited April 23, 2006 by Boiler

[Germlish 0]

Hey - I'm convinced already :-) - but it's probably a good thing to have this post here anyway.

Yeah meauxna - I'm just now starting to slowly understand that DCF is the the shortest route by far. I never figured we could get faster service from a department outside of the country than were we sitting at the source.

Ok - if the VWP had worked, I would have had her over there after one simple green piece of heavy weight paper - the I-94W. I would accept more paperwork after the fact if it meant I could have a guarantee that she could travel immediately.

- Actually, thats how it happened - and happens - in Germany. You get married, you go there, you ask to stay. The either say jawohl or nein.

Oh well - just getting impatient I guess.

[diadromous mermaid 36]

I could accept hours of grilling if the outcome is days less paperwork and immediate entry to the US for my spouse.

Days less paperwork? You *must* be joking! Spend a bit of time reading in the AOS Forum here to see how long and how much more paperwork it take to Adjust Status vs DCF.

Boiler: is it really accurate to describe Freeman v Gonzales as an appeal of deportation? Her case seems very specific to the widow/"spouse" issue and wouldn't apply to most? Or you're saying that the decision to change over to the rules of 'AOS applicant' v 'I-94W entrant' is sufficient protection? I'm quite wondering about that.. it doesn't seem clear cut enough at all to me.

I'd go one step further and suggest that Freeman v Gonzales was not really a VWP deportation appeal at all. It was an appeal of the decision that Freeman was initially denied immediate relative status due to the untimely death of her USC spouse. The way I read that case, the VWP was not at issue, but rather the Service's position that having no living USC spouse meant she could not retain the "immediate relative" privilege of adjustment. The 9th Circuit reversed the Service's position, and it is unknown if Freeman will return to the USA and attempt adjustment at this time. However, should she be denied adjustment from this point forward, then I believe the statutory position that there are no appeals on VWP would probably stand.

[meauxna 15]

Hey - I'm convinced already :-) - but it's probably a good thing to have this post here anyway.

Yeah meauxna - I'm just now starting to slowly understand that DCF is the the shortest route by far. I never figured we could get faster service from a department outside of the country than were we sitting at the source.

Ok - if the VWP had worked, I would have had her over there after one simple green piece of heavy weight paper - the I-94W. I would accept more paperwork after the fact if it meant I could have a guarantee that she could travel immediately.

- Actually, thats how it happened - and happens - in Germany. You get married, you go there, you ask to stay. The either say jawohl or nein.

Oh well - just getting impatient I guess.

Well, just think of it as 'the line is shorter if you're out of the country'.

There are other considerations besides 'one piece of paper for entry'. It's easy for you to say that that is all that matters---that you have her here with you. But believe me, for her, it makes a big difference. Entry on a VWP or other non-immigrant option (illegal with the intent to immigrate, as already covered) would also mean that she could not work until 4+ months, could not travel outside of the US until 3+ months, would not be able to get a Social Security number for the 4+ months & therefore could not get ID, driver's licence, banking or a number of other things accomplished. In effect, she would be 'just' sitting there. That bothers a lot of people. And, the paperwork is about doubled. Oh, and it can take up to 3 years to get the same benefit that she is going to get inside of a month or two overseas.

I'm not sure where you are getting your timeline info, but I think yoiu can be done with a DCF-->visa in Germany within 3 months. If you get your stuff turned in, she may be able to travel with you as an immigrant anyway.

I'd go one step further and suggest that Freeman v Gonzales was not really a VWP deportation appeal at all. It was an appeal of the decision that Freeman was initially denied immediate relative status due to the untimely death of her USC spouse. The way I read that case, the VWP was not at issue, but rather the Service's position that having no living USC spouse meant she could not retain the "immediate relative" privilege of adjustment. The 9th Circuit reversed the Service's position, and it is unknown if Freeman will return to the USA and attempt adjustment at this time. However, should she be denied adjustment from this point forward, then I believe the statutory position that there are no appeals on VWP would probably stand.

DM, I agree; it was primarily about the 'spouse' designation and less about the VWP---I don't know if that defence would fly for the 'regular' VWP AOSer. Wish I felt it could actually be discussed over there.

Click through on my link over there and read the Oregonian story before they take it off line. It doesn't sound like she has any intentions of moving back to the US, but wants to come visit. I'm getting curious about the motivations behind the case.

AND, in today's paper, another weird South Africa/Oregon story---an 18 year old girl ran away from SA to marry a 56 year old er, 'cult' (?) leader here. What struck me immediately (I'm a freak) is where the story said that the members of the group here in the US 'arranged her visa'. The parents have been desparate to get her back and here you have a published, public story (they even had immigration involved in the investigation) of immigrating on an NIV with intent obviously stated, and no problems for the lass.

It's a weird world.