Questions about converting from a VWP

[Chris & Mara 0]

So my situation is not only long and complicated but (at least in my opinion) also odd and extremely frustrating. Thus meaning I really need some advice.

Some background so that everyone can be on the same page (and hopefully be able to give us some more accurate information):

Chris is the US Citizen, I (Mara) am from Australia. We met online in mid 2006 and met in person for the first time in October 2007. We have been engaged since the 21st of June 2008 (engaged in the US) and applied originally for the K1 Visa in August 2008 (which we never received a NOA1 for but were assured many times that it was in the system) when I had returned to Australia, and this is where it gets tricky.

In February this year they informed us that they had lost our application, but that would look into finding it. In March this year we were told "it will be quicker if we re-filed". So believing that if we would re-file it meant another another 6 months apart we took a chance and I flew to the US on the 31st of March. There I entered on the VWP to spend sometime together whilst waiting out the paper work step, with the intention of returning home when our NOA2 came or the 22nd of June (which ever was first). On the 4th of April we re-filed our application with an expedite (as suggested by a USCIS officer) on grounds of a USCIS error (that they lost our original case) and that we would likely receive our NOA2 in 30-60 days.

2 Weeks ago Chris made an appointment with the officer we had been dealing with at the USCIS DC office to enable us to retrieve the NOA1 (that we have never received) and possibly find out where in the process we were. He arrived at the meeting only to be shifted upwards through three levels of management that ended in meeting with the Chief of Staff. The Chief of Staff informed us that our visa could be tracked through the Expedite and that it had been received in Vermont. He could not however find any other information about it. He told us that he was concerned that we had been left in the dark like this and that we should at the very least know "something" about our case be it that it was still be processed, that it had been approved or denied. He told Chris he would do some research and get back us by the end of the week with some information, he then handed Chris his Email, cell number, office number and receptionist's number.

Now I'm sure that at this point you have guessed he never bothered to get back to us.... Instead for the next week and a half Chris called, and emailed and never got any response, finally he made another appointment with the receptionist that he now spoke to daily for 130pm on the 26th. He attended this interview yesterday and was livid to find out that they knew nothing and had no idea where our case was, what step it was at, etc. Once again the Chief of staff told him he would look into it and call us in a couple of days with some answers.

So now after 10 months of this rubbish we surprisingly have had quite enough.

Please at this point let me make it clear at this point that we never had any intention of getting married adjusting from a VWP when I entered the country. Further more I still hold my teaching position with Ed QLD in Australia (no house or car though as i lived with my parents) and a return flight ticket as proof that I would be returning to Australia on the 22nd of June this year.

At the moment (as of yesterday) we are considering simply getting married and adjusting status, we never had any intention when I entered and I entered legally. From researching the USCIS site today those are the only two restrictions that make that option illegal, and we pass both (and can prove both).

So after that big, long and painful story I have one question. Is what we are considering, in our case, considered legal; or will we have to either file for a third time for the K1, or marry and I return to Australia to complete the K3? Don't get me wrong I am not meaning to jump the line or anything but right now we are really in a horrible spot. Sadly we always have a back up option of Chris moving to Australia but with the economy how it is, the chances of him finding work there are less then me finding work here, financially it is not an option for us.

I really do appreciate any help that anyone can give us, tomorrow Chris is also meeting with a Immigration Lawyer to see what the law on this matter specially states as well.

Thank you,

Mara

[rebeccajo 14]

Well, what a mess.

If Chris is meeting with a good attorney with contacts, I bet you will see your I129F approved VERY shortly.

Your case definitely qualifies for an expedite under USCIS error.

I hope you come back and tell us what the attorney has to say about this matter. It may well be possible to adjust status from within with no problems. But it might also be interesting to see how quickly this case could move if it had the right wheels under it.

Mara - if the attorney indicates that you are eligible for expedite (which you are) ask him how he is going to achieve that. If Chris has been going to your nearest USCIS office to find out about the case, they really aren't the ones who can help the most. The Vermont Service Center Director is the one who should be looking into this case - does your lawyer have access to him (or her - it used to be a woman)? And very importantly - can he 'grease' the case so it would move quickly AFTER it leaves Vermont? A good lawyer could probably do little for the case at the NVC, but he should be able to move it ahead of others at the consulate.

Edited May 28, 2009 by rebeccajo

[Chris & Mara 0]

From what I have been told/heard/seen having a Lawyer for the K1 is basically like throwing your money down the drain, there is nothing they can really do once the case leaves your hands for the service center. PLus as I mentioned our case was expedited, and yet their own staff cannot even find the file....

Unfortunately I am unsure of how many contacts the attorney Chris is meeting with has (he is the immigration lawyer his company deals with) but hopefully more then anything he will have the right advice.

Thank you for your response Rebeccajo.

[LiLMermaid 2]

I don't really have any advise. At the point you're at I would probably just say the hell with it and get married and file the AOS. You can prove you didn't have that intent when you arrived. You were in the process of the K-1. I'm hoping whatever you decide to do it works out for you and quickly. This is ridiculous. They've basically lost your case....TWICE. I think at this point you could claim temporary insanity and they made you do it....sheesh.

[Chris & Mara 0]

LOL

I'm starting to think the insanity may no longer be temporary at this point, I am honestly amazed that we both have hair left on our heads.

[milimelo 4,477]

Did you ever contact your congressman for assistance? I'd make sure the congressman raises hell and gets the petition approved and on its way to Australia. They do have staff with direct contact to service centers and once congressman sends an inquiry cases are not only touched but also approved almost overnight.

[Chris & Mara 0]

We contacted our rep (a congresswoman) through the process of the first visa, once we had told us that they had lost it. She told us that she would look into it and get back in contact with us.

She did nothing, she couldn't do anything, and can't do anything, one of the perks of living on Capitol Hill.

[Chocolot 0]

Hi Mara, no advice, sorry, just want to say i hope you hear something positive soon and look back on this as just another brickwall to knock down on this incredible journey to be together,

sending best wishes and the best of luck as dealing with USCIS always seems to be fraught

thinking of you

[milimelo 4,477]

We contacted our rep (a congresswoman) through the process of the first visa, once we had told us that they had lost it. She told us that she would look into it and get back in contact with us.

She did nothing, she couldn't do anything, and can't do anything, one of the perks of living on Capitol Hill.

Try with the senator(s), you do have more than one representative. I can tell you that our senator Bayh was useless for us but congressman Visclosky came through and got us what we requested.

[Chris & Mara 0]

Jayde, thank you for your kind words.

Milimelo, We live in DC on Capitol Hill, Chris' License plate doesn't say "taxation without Representation" for the fun of it. We have one Rep, she has no vote, and could not assist us. We also have no senator, and no other state that we don't live in is going to take us into their work load.

[Bobby+Umit 161]

Nothing in your OP precludes you from simply marrying and attempting the AOS.

You would probably need to cancel the K-1 petition during the process - as it will show up in the checks they do with the AOS.

After that run around, I would go for it myself...

Good luck!

[Chris & Mara 0]

Thank you for your advice Bobby_Umit

[rebeccajo 14]

From what I have been told/heard/seen having a Lawyer for the K1 is basically like throwing your money down the drain, there is nothing they can really do once the case leaves your hands for the service center. PLus as I mentioned our case was expedited, and yet their own staff cannot even find the file....

Unfortunately I am unsure of how many contacts the attorney Chris is meeting with has (he is the immigration lawyer his company deals with) but hopefully more then anything he will have the right advice.

Thank you for your response Rebeccajo.

There's a lot of misconceptions out there about using an attorney for the immigration process. And a lot of those misconceptions come from anecdotes of persons who hired the wrong kind of attorney.

A good qualified immigration attorney has contacts within the State Department, service centers and consulates. They may themselves have been formerly employed as a US attorney or served within a branch of DHS.

It sounds to me as if the gentleman Chris will be seeing today is primarily an employment immigration attorney - still not quite what you need unless he also has experience with family-based immigration. And I don't mean just about whether or not he could speed your K1 case. I always suggest anyone who is within the country and considering an adjustment from that position first speak to a FAMILY BASED specialist.

Edited May 28, 2009 by rebeccajo

[Aloe 10]

I would suggest really reading up on adjusting from the VWP see what is said about it and find out the problems you may run into before committing to it. I also think you should find a lawyer and talk to them about adjusting status from the VWP and see what they have to say.

Now I say that bechause I know if I had have told you what I would do someone would come out screaming and kicking about how I gave the wrong advice lol

If it WAS me. I would be getting married and adjusting status. You have plenty of proof suggesting you had every intention of returning home. You can also get your parents to write a letter stating when you left, when they were expecting you to come back and that you still have a place of residence at their house and whatever else you can think of to prove you were going back employment letter etc etc. Just work on getting all the proof you can to say you were going to be going home. USCIS will not try to prove you weren't going home because it is up to you to prove you WERE. If that makes sense.

If you are going to talk to a professional make sure they know what they are talking about when it comes to immigration and forget asking them about the K-1 just ask about the AOS from VWP!

I don't thnk anyone who has done the K-1 process would see you as jumping the line as you have already waited the 9 months which is how long the K-1 take plus some!

Goodluck!

[Gemmie 142]

Personally, I would marry and adjust after getting some kind of "confirmation" from the lawyer - as long as he knows what FAMILY-BASED ADJUSTMENT is all about. Then focus on getting everything you can to prove that:

1- you entered the country as a tourist. Use letters from family, your employment in Australia, the K1 evidence, your return ticket... anything that says you planned on leaving to finish the K1 case.

2- that USCIS have completely screwed you over and aren't listening. Keep records of contact you have with them, what they told you, any follow-ups they failed to make..

Your AOS case will probably create a lot of stress for you and Chris, what with trying to prove all of this and also worrying that it will be denied. I'm not saying that you *should* marry and apply for AOS, just what I would personally do. I'm no expert at immigration, but there's only so much I could take from trying to do it the longer way, and I would take the risk.

I've been following your case with you from the beginning, from when we all started out anxious and hopeful. Obviously most of the August filers, if not all, have been approved and are making their plans, and I'm not surprised if you feel like completely losing your sanity over watching that happen. I'm so sorry this is happening to you; out of everyone that started out in our topic, I never thought your case would present any kind of problem. Well done for staying focused and I'm really happy that you and Chris have managed to have each other through this.