VWP & marriage?

[TayRivers 4]

Sure, many many people are approved to AOS from VWP without problems (myself included). However, I think it is more dangerous to tell people that they will be totally fine and that it is a risk-free procedure, than to warn that they could *possibly* encounter problems. I don't know what case the other poster was thinking of, but Momeni vs Chertoff is a well known one, where AOS was only filed for after VWP expired and Momeni was removed (Google it or some details here: http://www.philadelphiaimmigrationlawyerbl...california.html - this lawyer concluded that it *may* set a new precedent that those filing *after* their VWP expires are not eligible to adjust).

Adjusting from VWP is *not* the same as doing it from a K1 as VWP specifically implies non-immigration intent, and IMHO time is much more crucial in VWP cases. Surely it is better to tell someone thinking of doing it about the possible risks, so they can make an informed decision?

I agree 100% people should always be made aware that there are risks involved. But to say you could be detained at your interview and deported is going a bit too far. In the case where this happened the person was not able to give the full ruling on her case as she did not have the paperwork, so we do not have the full facts.

It is always better to file for AOS before the VWP expires but there are many cases where people have filed late and been approved, so a blanket statement of "you must file before the 90 days is up" can not be made. As for the statement about not getting married before the 60th day there is no evidence to support that statement.

Anyone who attempts AOS from a VWP knows that they have no right of appeal under the visa wavier and they should be encouraged to seek legal advice from a immigration lawyer to ensure they are aware of the risks involved and to check that this is the best option given their perticular case.

[Jon&Lindsey 0]

Sure, many many people are approved to AOS from VWP without problems (myself included). However, I think it is more dangerous to tell people that they will be totally fine and that it is a risk-free procedure, than to warn that they could *possibly* encounter problems. I don't know what case the other poster was thinking of, but Momeni vs Chertoff is a well known one, where AOS was only filed for after VWP expired and Momeni was removed (Google it or some details here: http://www.philadelphiaimmigrationlawyerbl...california.html - this lawyer concluded that it *may* set a new precedent that those filing *after* their VWP expires are not eligible to adjust).

Adjusting from VWP is *not* the same as doing it from a K1 as VWP specifically implies non-immigration intent, and IMHO time is much more crucial in VWP cases. Surely it is better to tell someone thinking of doing it about the possible risks, so they can make an informed decision?

##so what happens if u were to marry on a vwp after they lost your petition for a K1 would the K1 petition be rejected out of their system after a few months?

I don't understand what you are asking. Are you saying you applied for a K1 but USCIS lost your application? How can they reject something they don't have? Do you mean apply for a K1, then enter on VWP to visit, marry and do AOS, ignoring that you have the K1 pending? Personally I wouldn't do this, but I have no experience of this and don't know what USCIS would think, it just seems that it would look like you were trying to circumvent the system and save time waiting for the K1.

[cdn_in_wa 1]

The point of my comment was to warn posters that saying 'it does not matter when you file AOS under VWP' is not necessarily the case and we should be more cautious when posting to these questions.

I do not think that my post was dangerous at all.

The person in question on the other forum, who was deported, felt it was due to the overstay. I expect that was the understanding of her attorney as well.

What I read in that thread is you cannot say for certain that timing of filing AOS definitely will not matter.

Most cases are approved with no question even being asked about intent on entry. So far. Rules change. Interpretations change. And things can go wrong.

Better to advise caution than to throw caution to the wind.

JMHO

[Jon&Lindsey 0]

The point of my comment was to warn posters that saying 'it does not matter when you file AOS under VWP' is not necessarily the case and we should be more cautious when posting to these questions.

I do not think that my post was dangerous at all.

The person in question on the other forum, who was deported, felt it was due to the overstay. I expect that was the understanding of her attorney as well.

What I read in that thread is you cannot say for certain that timing of filing AOS definitely will not matter.

Most cases are approved with no question even being asked about intent on entry. So far. Rules change. Interpretations change. And things can go wrong.

Better to advise caution than to throw caution to the wind.

JMHO

I totally agree. I don't see anywhere where those of us trying to point out the *potential* consequences have given 'dangerous' advice. Had I known as much as I know now about the potential risks, I would definitely have tried to file earlier. The point is that it is unpredictable, so it is surely better to do everything you can to minimize the chance of anything going wrong, for example by filing before the VWP expires.

[canadian_wife 1,822]

http://www.ca9.uscourts.gov/ca9/newopinion...pdf?openelement

This is an interesting case that was decided, on appeal, in 2008 drawing distinct lines between marriage, VWP, overstay and subsequent AOS. It sounds like if you file before your stay expires you are OK, according to this case, but if you file after then it can get ugly. Skip down to #4 and the second paragraph.

Good luck!

[Sanai 0]

http://www.ca9.uscourts.gov/ca9/newopinion...pdf?openelement

This is an interesting case that was decided, on appeal, in 2008 drawing distinct lines between marriage, VWP, overstay and subsequent AOS. It sounds like if you file before your stay expires you are OK, according to this case, but if you file after then it can get ugly. Skip down to #4 and the second paragraph.

Good luck!

I been reading since yesterday regarding this case. This quote I found informative: "in a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment." (found quoted at http://www.humanrightsattorney.com/sub/unl...l-presence.jsp)

If I am reading this correctly, with Momeni v. Chertoff the foreigner didn't file for adjustment of status until after removal proceedings had been started. I am wondering what the outcome of the case would have been had he applied before removal proceedings had been started?

Also I found this link very interesting as it brings up some big discrepancies for this case: http://www.montaglaw.com/blog/2008/09/

[payxibka 10,045]

I am wondering what the outcome of the case would have been had he applied before removal proceedings had been started?

huge difference

[Missing.him 0]

My two cents...my husband was here on VWP we got married 2 weeks before his i94 expired we filed for AOS 2 days before that date.. we just had our interview and were approved with no questions asked... this was also after he was turned down for a an extended tourist visa and a stern warning about how many times he has been here to visit, yet when he came in the last time before we ended up getting married he proved he had ties back to the UK... ( we still have to get back there though so he can close his bank accounts we are running out of money!! LOL) anyway there is no amount of advice really it all depends on your case and the person that you interview with in my opinion... just file ASAP and wait and see

[cdn_in_wa 1]

http://www.ca9.uscourts.gov/ca9/newopinion...pdf?openelement

This is an interesting case that was decided, on appeal, in 2008 drawing distinct lines between marriage, VWP, overstay and subsequent AOS. It sounds like if you file before your stay expires you are OK, according to this case, but if you file after then it can get ugly. Skip down to #4 and the second paragraph.

Good luck!

I been reading since yesterday regarding this case. This quote I found informative: "in a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment." (found quoted at http://www.humanrightsattorney.com/sub/unl...l-presence.jsp)

If I am reading this correctly, with Momeni v. Chertoff the foreigner didn't file for adjustment of status until after removal proceedings had been started. I am wondering what the outcome of the case would have been had he applied before removal proceedings had been started?

Also I found this link very interesting as it brings up some big discrepancies for this case: http://www.montaglaw.com/blog/2008/09/

That's what it says. And why it's a mystery what happened to the unfortunate poster on the other forum. So we have to be careful to take any of this as set in stone.

USCIS might change their position at any time. One IO could ruin your day.

Best advice I can give: Err on the side of caution, file before the I-94 expires.

[Hydey 0]

Just give a side of caution and think it out, the Momeni case is what made me get my AOS application in the day before my I-94 expired with fed-ex overnight, it cost me about $60, but the receipt on my NOA1 says 26th August, and my I-94 expired on 27th. This makes me feel more relaxed in any case.

[mrsiesta 0]

I'm wondering if everyone filing their AOS package that was married while on VWP with form I-485 also sent I-485A? If so, do you send fee's for both applications in one check? To be clear, I only need to fill our forms I-485/A, I-130, and I-765? Thank you for any assistance you can give on this!

[mrsiesta 0]

I'm wondering if everyone filing their AOS package that was married while on VWP with form I-485 also sent I-485A? If so, do you send fee's for both applications in one check? To be clear, I only need to fill our forms I-485/A, I-130, and I-765? Thank you for any assistance you can give on this!

Actually I think I have this figured out, though the initial information about supplement form A would seem to imply that if you came to the US on VWP you *must* file this form. I believe that is only if you are filing from a non-legal status, such as, overstayed your visa or whatever. Further more, the directions for this form clearly state:

"NOTE: If you are applying to adjust as the spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age, and if you were inspected and lawfully admitted to the United States other than in C-1 or S non-immigrant status, you do not need to file this form."

So, in this statement we can assume that if you entered the US on a VWP you were inspected and lawfully admitted to the US having passed customs at your POE. Also note that a C-1 non-immigrant = Alien in transit directly through U.S and S non-immigrant = either Informant of criminal organization information or Informant of terrorism information.

So, I'm fairly certain that I will not have to file form Supplement A along with I-485 for my wife. Please correct me if I've made any mistakes here.

[Lili 3]

I'm wondering if everyone filing their AOS package that was married while on VWP with form I-485 also sent I-485A? If so, do you send fee's for both applications in one check? To be clear, I only need to fill our forms I-485/A, I-130, and I-765? Thank you for any assistance you can give on this!

Actually I think I have this figured out, though the initial information about supplement form A would seem to imply that if you came to the US on VWP you *must* file this form. I believe that is only if you are filing from a non-legal status, such as, overstayed your visa or whatever. Further more, the directions for this form clearly state:

"NOTE: If you are applying to adjust as the spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age, and if you were inspected and lawfully admitted to the United States other than in C-1 or S non-immigrant status, you do not need to file this form."

So, in this statement we can assume that if you entered the US on a VWP you were inspected and lawfully admitted to the US having passed customs at your POE. Also note that a C-1 non-immigrant = Alien in transit directly through U.S and S non-immigrant = either Informant of criminal organization information or Informant of terrorism information.

So, I'm fairly certain that I will not have to file form Supplement A along with I-485 for my wife. Please correct me if I've made any mistakes here.

Mrs Siesta,

I am sorry but I think you are wrong.

"NOTE: If you are applying to adjust as the spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age, and if you were inspected and lawfully admitted to the United States other than in C-1 or S non-immigrant status, you do not need to file this form."

The C-1 is a transit visa. VWP is a visa waiver program. You did not have a visa when entering the US, the requirement was waived because you are from one of the qualified country and were inspected (and obviously admitted) at POE.

[mrsiesta 0]

I'm wondering if everyone filing their AOS package that was married while on VWP with form I-485 also sent I-485A? If so, do you send fee's for both applications in one check? To be clear, I only need to fill our forms I-485/A, I-130, and I-765? Thank you for any assistance you can give on this!

Actually I think I have this figured out, though the initial information about supplement form A would seem to imply that if you came to the US on VWP you *must* file this form. I believe that is only if you are filing from a non-legal status, such as, overstayed your visa or whatever. Further more, the directions for this form clearly state:

"NOTE: If you are applying to adjust as the spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age, and if you were inspected and lawfully admitted to the United States other than in C-1 or S non-immigrant status, you do not need to file this form."

So, in this statement we can assume that if you entered the US on a VWP you were inspected and lawfully admitted to the US having passed customs at your POE. Also note that a C-1 non-immigrant = Alien in transit directly through U.S and S non-immigrant = either Informant of criminal organization information or Informant of terrorism information.

So, I'm fairly certain that I will not have to file form Supplement A along with I-485 for my wife. Please correct me if I've made any mistakes here.

Mrs Siesta,

I am sorry but I think you are wrong.

"NOTE: If you are applying to adjust as the spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age, and if you were inspected and lawfully admitted to the United States other than in C-1 or S non-immigrant status, you do not need to file this form."

The C-1 is a transit visa. VWP is a visa waiver program. You did not have a visa when entering the US, the requirement was waived because you are from one of the qualified country and were inspected (and obviously admitted) at POE.

Thanks Lili, but what I'm saying is basically what you just said.

The C-1 status does not apply to the VWP non-immigrant therefore the VWP WOULD NOT be required to file the supplemental I-485 A; as only people attempting to adjust status as the spouse of a US citizen who fell under the C-1 or S non-immigrant status would need to file this.

[Lili 3]

Duh, I apologize. I must be tired.

I thought you said that you had to fill out the I-485A.