Filing AOS/I-130 for relative already in US

[NYPeach 13]

Hi,

When filing the I-130 and AOS concurrently for a relative that is already in the US, what address do we use for the relative?

My stepdaughter came on the vwp and for many reasons (mostly safety), we felt she could not go back - do we use her foreign address or our address where she's been residing here in the US?

Thanks and sorry if it's somewhere and I missed it.

[Bobby+Umit 161]

Hi,

When filing the I-130 and AOS concurrently for a relative that is already in the US, what address do we use for the relative?

My stepdaughter came on the vwp and for many reasons (mostly safety), we felt she could not go back - do we use her foreign address or our address where she's been residing here in the US?

Thanks and sorry if it's somewhere and I missed it.

From the CBP Site on VWP:

Q: What Are the Disadvantages of Using the VWP?

A: If you are admitted to the United States under the VWP, you may not change or extend your non-immigrant status. If your admission is denied, you have no right to administrative or judicial review, except as noted above. Likewise, if you are found to have violated the terms of your admission, you also forfeit the right to contest a removal order and to enter under the VWP ever again. Therefore, before using the VWP, you should carefully consider your options.

Since she came on the VWP, you cannot AOS.

Source: CBP VWP FAQ

Edited April 13, 2009 by Bobby_Umit

[JERIII 8]

Hi,

When filing the I-130 and AOS concurrently for a relative that is already in the US, what address do we use for the relative?

My stepdaughter came on the vwp and for many reasons (mostly safety), we felt she could not go back - do we use her foreign address or our address where she's been residing here in the US?

Thanks and sorry if it's somewhere and I missed it.

From the CBP Site on VWP:

Q: What Are the Disadvantages of Using the VWP?

A: If you are admitted to the United States under the VWP, you may not change or extend your non-immigrant status. If your admission is denied, you have no right to administrative or judicial review, except as noted above. Likewise, if you are found to have violated the terms of your admission, you also forfeit the right to contest a removal order and to enter under the VWP ever again. Therefore, before using the VWP, you should carefully consider your options.

Since she came on the VWP, you cannot AOS.

Source: CBP VWP FAQ

It is dangerous to make blanket statements like that. This one is, I am pretty sure, wrong. What is forbidden under the VWP is changing your non-immigrant status, i.e. you cannot do a COS (change of status) to another non-immigrant status. For example, you cannot come in on the VWP and then enroll in college and change status to an F-1 student.

You can, however, adjust status to permanent resident in limited situations - if you are the immediate relative of a U.S. citizen. (see, for example, http://www.americanlaw.com/vwpp.html) Now, beyond that I do not know if the step-daughter of a citizen qualifies.

In this situation, I would suggest that the OP consult a lawyer if she/he has not. (Note - I am not saying that the OP should have a lawyer do the paperwork.)

Now, back to the original question. I would use the address where the person currently lives.

[NYPeach 13]

thanks JerIII, for your post. bobby, you almost gave me a stroke, lol, but I do appreciate your looking that up for me.

JerIII is right, we can adjust her status because I am a US citizen (and as my stepdaughter, she does qualify as an immediate relative because I married her father before she turned 18).

I think I'll use the address in the states, that makes sense.

[Bobby+Umit 161]

I suggest you hire a lawyer.

The instruction is very clear. You cannot change your non-immigrant status if you come in under VWP.

AOS is changing from a non-immigrant status to an immigrant status.

Yes, if you came under a "visa", then you would have a chance to AOS - as long they travelled here using a regular visa.

The VWP stipulates if you use it, you cannot AOS under it.

This is from the State Dept about the VWP

When does a national of a VWP country need to apply for a visa instead of using the VWP?

Nationals of VWP countries must meet the conditions noted in the section above in order to seek admission to the United States under the Visa Waiver Program. Travelers who do not meet these conditions must apply for a visa. In particular, a visa must be requested if the traveler:

Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to student, etc.) once in the United States;

Wants to work or study in the United States, wants to travel as a working foreign media representative, wants to come to the United States for other purposes not allowed on a visitor visa, or intends to immigrate to the United States;

The way I read that, if they wanted to immigrate, they would of needed an actual visa, not the VWP.

State Dept VWP

I just go by what is written, no "what ifs"

Edited April 13, 2009 by Bobby_Umit

[JERIII 8]

I suggest you hire a lawyer.

The instruction is very clear. You cannot change your non-immigrant status if you come in under VWP.

AOS is changing from a non-immigrant status to an immigrant status.

Yes, if you came under a "visa", then you would have a chance to AOS - as long they travelled here using a regular visa.

The VWP stipulates if you use it, you cannot AOS under it.

This is from the State Dept about the VWP

When does a national of a VWP country need to apply for a visa instead of using the VWP?

Nationals of VWP countries must meet the conditions noted in the section above in order to seek admission to the United States under the Visa Waiver Program. Travelers who do not meet these conditions must apply for a visa. In particular, a visa must be requested if the traveler:

Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to student, etc.) once in the United States;

Wants to work or study in the United States, wants to travel as a working foreign media representative, wants to come to the United States for other purposes not allowed on a visitor visa, or intends to immigrate to the United States;

The way I read that, if they wanted to immigrate, they would of needed an actual visa, not the VWP.

State Dept VWP

I just go by what is written, no "what ifs"

It is very difficult to read isolated pieces of immigration information correctly. This is covered in the instructions for the I-485, in which it says:

under 10. Who Is Not Eligible to Adjust Status.

one of the sections is:

K. 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 U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old);

Yes, the VWP is not intended for people who intend to stay, but neither are any of the non-immigrant visas.

If you look around these boards, you will find lots of people who have adjusted from Visa Waiver entries. It can be difficult, but it happens.

[Bobby+Umit 161]

Ok, this was bugging me, and I contacted the CBP for clarification of this (and the I-485 K. section) just now.

I was sorta correct in what I wrote, but wrong in the K. section, sorta!

CBP told me that normally, you cannot AOS on the VWP, but, section K. of the I-485 allows it, if the person is related to a US citizen.

So I gave this scenario - USC Male marries immigrant - new wife wants to bring family member over (parent, spouse, widow, widower, or unmarried child under 21 years of age) after she is here (lpr/aos status - either one works)

Since she is not the USC, just a LPR/AOS, you cannot use section K. to AOS on the VWP.

The wife will need to be a USC before she can AOS any of the listed people. (CBP did say that if she had children, she should of brought them over on her initial application/petition).

CBP also stated if the USC adopts the immigrants children, before the VWP/AOS, then they are considered "immediate relatives" and they can AOS on the VWP.

Marriage on the VWP is also allowed, since the wife/husband immigrant is now an "immediate relative" - however in both scenarios, the immigrant must be eligible to AOS (According to the 10. Who is Not Eligible to Adjust Status?), so being out of status, for example, would negate the AOS attempt.

And you may have to prove your intent on coming over on the VWP was to visit, not AOS. (Similar to the visitors visa scenario).

The catch in section K is the wording. "unless you are an immediate relative of a U.S. Citizen"

So - to the OP -

Unless you adopted your stepdaughter (I take it your the USC), and she is under 21 years of age, you cannot AOS under the VWP. You can, however, use another type of visa to keep her here.

Good Luck.

[NYPeach 13]

Sorry I neglected this thread. Thanks for the replies.

As a point of information, I am a USC. My stepdaughter is unmarried, under 21, and I married her father before her 18th birthday, which allows me to file for her as an immediate relative (child).

Paperwork is in. Time to start waiting all over again. Been at this since 2004!

Edited April 26, 2009 by Peachbythebeach

[Gemma12nel 1]

why doesn't husband apply for citizenship too?that way all is covered?