Getting married and wanting to stay after entering on VWP

[HaydenM 0]

Hello all,

I'm a bit new to this whole thing and am still grappling with all the acronyms and everything, but anyway...

Here's the situation: I've recently come into the US on the Visa Waiver Program from New Zealand after travelling for six months or so with my girlfriend, to meet her family and see around the area where they live. Since I arrived, we've decided to get married here and try to settle down as we're not keen on living in different countries for any longer.

I realise others have posted on similar situations, and we've had a good look through the website, but can't find a good guide to what exactly we need to file (apart from the I-130 and I-145,) which will actually give me a stamp on my passport to show that I'm not an over-stayer before my VWP runs out.

The website seems to give loads of good advice on the K-1 and K-3 processes (which we've decided would mean too much time apart to pursue) but I can't find much on what to do next after we're married (this weekend). I was wondering if anyone has been in the same position and has any pointers on how to get that stamp in your passport.

Cheers!

[Kez/JWolf 6]

I dont know about any stamp in your passport..... but the information you want is here http://www.visajourney.com/forums/index.ph...page=i130guide2

You should be aware that there are risks involved with doing AOS from the VWP.... you can not leave the USA under any cirrcumstances until you have your Greencard or you will be denied re-entry... if your AOS is denied you have no right of appeal and would have to return to your home country and file for a K3 and a waiver to cover any ban incured by your over stay of the VWP...

But yes it can be done...

Kezzie

[HaydenM 0]

Right. Many thanks for that!

So, whilst one is waiting for those applications to be looked at, one is technically an overstayer in this case?

Also, I guess by what you're saying ,there is no option of applying for Advanced Parole to be able to leave the country for a short time in a case like this?

Cheers

[Kez/JWolf 6]

You can apply for AP but if you try to use it you would cause yourself major problems... your status once you have recieved the receipt for your AOS package will be adjustment pending.... so it is best to file before your I94 expires.... overstay would only come into play if your AOS was denied... then they would cound every day you have been here from when your I-94 ran out.... 180 days = 3 year ban.... 365 days = 10 year ban...

You may also be asked at AOS interview to prove that you did not enter with the intent to remain and do AOS.... USCIS do not have to prove you did.... it is up to you to prove that you did not...

Kezzie

[meauxna 15]

.... you can not leave the USA under any cirrcumstances until you have your Greencard or you will be denied re-entry...

Kezzie, I don't know why you say this. It's not true.

As an applicant for adjustment of status, the OP can also apply for Advance Parole to travel with. He has not accured any overstay or done anything (that he's mentioned) to make himself inadmissable.

It's true that there are some disadvantages to re-entering with AP, but you weren't talking about that.

Have I misunderstood something?

OP: this is also a good starting point for your information:

How Do I Become a Lawful Permanent Resident While in the United States?

Can I Travel Outside the United States?

If you are applying for adjustment to permanent resident status, you must receive advance permission to return to the United States if you are traveling outside the United States. This advance permission is called Advance Parole. If you do not obtain Advance Parole before you leave the country, you will abandon your application with USCIS and you may not be permitted to return to the United States. For more information, please see How Do I Get a Travel Document?.

The common acronyms are here: US Immigration Abbreviations and Forms (FAQ Appendix)

[Kez/JWolf 6]

I can only pass on the information that I was given by both my lawyer and the USCIS in Boston when I asked about AP.... I was told that using AP changes your legal status to admitted on parole and it is therefore easier to remove you or give you a denial on entry..... everyone that has done AOS from VWP that I know has been told the same thing DO NOT LEAVE THE USA UNTIL YOU HAVE YOUR GREENCARD....

But if I am wrong then I am sorry for any confusion.... The OP just needed to know the risks involved with doing AOS from VWP... But I wish him well on his journey....

Kezzie

[rebeccajo 14]

......as we're not keen on living in different countries for any longer....

The website seems to give loads of good advice on the K-1 and K-3 processes (which we've decided would mean too much time apart to pursue)......

Nobody filing a K1 or K3 is 'keen on living apart any longer'. I think you should carefully weigh your decision on more than the fact that filing causes 'too much time apart'.

Edited July 18, 2006 by rebeccajo

[scottishskye 0]

Sounds like what I did with my husband. We were dating for a year ( hes from Scotland) and on one of his trip over to the states on his WVP, he was here for about a month then we decide one morning to go get married. After we got married I called INS, they said that he would have to remain here while the paper is going thru. He did his medical. then we filed AOS, K3, Advance Partol,and EAD I think there was one more. but the ocst came out to be a little under $1k for all the paperwork and we did it ourselfs. INS told be as long as you filed before his WVP time runs out he would be ok.

So we submited his paperwork in Nov 05 ( we got married in Oct 05) and by Feb 7 he had his interview. So the whole progress for us was about 3 months.

If you have any question, let me know.

[ChristinaM 0]

It's not so much that you can't leave the country whilst processing is in progress (unless you have overstayed, in which case it becomes more tricky). I believe what Kezzie is referring to is the difference between being "admitted" to the US (which I understand to be when you are IN the US, completely) and being "parolled in" (when your body in is the US, but your soul is still at the border waiting for approval). I've been led to believe that the difference can be significant for someone who has their AOS denied - perhaps someone who knows more can enlighten me as to why?

Whilst you are waiting for adjudication, the clock stops ticking. So once your petition has been received, you will not accrue any overstay time.

I also adjusted from the VWP, personally without any trouble.

Something else for you to consider looking into is filing the paperwork in New Zealand. Check out the DCF forum for more information and to see if it's a possible option for you. Not only is it a "safer" method, but the non-USC can work as soon as they arrive, and there's no need to go through the AOS process.

Good luck!

Christina

[HaydenM 0]

Many many thanks for those comments and tips! Sounds like there's a few different opinions on whether AP is possible or not in this case. Well at least the US is a big enough country to be confined in for eighteen months...

For those of you who have done this, I was wondering if you did actually need to file for the K3 (including the I-129F) or if you just filed for the I-130, I-485, and I-765?

Ta!

[Yodrak 7]

HaydenM,

There's a reason why you don't see much advice on what you propose to do, and why you will find a lot of controversy without having to look too hard.

This is a good topic to discuss in a consultation with an immigration attorney. Look for one whose handled such cases before. Such an attorney can give you good advice on how to present your case should you decide to pursue this idea that you're thinking of.

Yodrak

Hello all,

I'm a bit new to this whole thing and am still grappling with all the acronyms and everything, but anyway...

Here's the situation: I've recently come into the US on the Visa Waiver Program from New Zealand after travelling for six months or so with my girlfriend, to meet her family and see around the area where they live. Since I arrived, we've decided to get married here and try to settle down as we're not keen on living in different countries for any longer.

I realise others have posted on similar situations, and we've had a good look through the website, but can't find a good guide to what exactly we need to file (apart from the I-130 and I-145,) which will actually give me a stamp on my passport to show that I'm not an over-stayer before my VWP runs out.

The website seems to give loads of good advice on the K-1 and K-3 processes (which we've decided would mean too much time apart to pursue) but I can't find much on what to do next after we're married (this weekend). I was wondering if anyone has been in the same position and has any pointers on how to get that stamp in your passport.

Cheers!

Kezzie,

What you were told by your lawyer and the USCIS is correct, but it does not follow that a person adjusting from the VWP should not use advance parole. Every person who is adjusting status is in the same situation wrt becoming a parolee when they use advance parole, no matter what status they're adjusting from.

Adjustees from VWP do face a risk that other adjustees do not face should their application be denied, but that risk is not associated with the use of advance parole.

Yodrak

I can only pass on the information that I was given by both my lawyer and the USCIS in Boston when I asked about AP.... I was told that using AP changes your legal status to admitted on parole and it is therefore easier to remove you or give you a denial on entry..... everyone that has done AOS from VWP that I know has been told the same thing DO NOT LEAVE THE USA UNTIL YOU HAVE YOUR GREENCARD....

But if I am wrong then I am sorry for any confusion.... The OP just needed to know the risks involved with doing AOS from VWP... But I wish him well on his journey....

Kezzie

[Kez/JWolf 6]

Thank you for correcting me my understanding was that it was not a good idea to use AP if you are adjusting from VWP.... I am sad that I have missed going home because of the advise I was given....

but now I have my greencard our flights are booked for Sept....

Kezzie

[JubJub 0]

Many many thanks for those comments and tips! Sounds like there's a few different opinions on whether AP is possible or not in this case. Well at least the US is a big enough country to be confined in for eighteen months...

For those of you who have done this, I was wondering if you did actually need to file for the K3 (including the I-129F) or if you just filed for the I-130, I-485, and I-765?

Ta!

I-130, I-485 and I-765 are what you need to file.

K3 would only be required if you were to leave the USA, and come in as a spouse of a US Citizen.

You won't get a stamp in your passport immediately when you file, just keep the receipt notice(s) you receive, they are proof that you are "pending adjustment" and are still in the USA legally.

The main point to remember is that you had no pre-conceived intent on getting married and remaining in the USA, at the time that you initially entered the USA.

Good luck

You can apply for AP but if you try to use it you would cause yourself major problems... your status once you have recieved the receipt for your AOS package will be adjustment pending.... so it is best to file before your I94 expires.... overstay would only come into play if your AOS was denied... then they would cound every day you have been here from when your I-94 ran out.... 180 days = 3 year ban.... 365 days = 10 year ban...

This is incorrect, in the event of a denial they won't count the days since the I-94 ran out as an overstay.

As for the allegedly "risky" route of adjusting from VWP, if your medical and criminal records are clean you really shouldn't have any problems.

[Kez/JWolf 6]

Where are you getting the information that an overstay would not be counted from the date the I-94 expired?? it is common knowledge that in the event of a denial you are out of status from the date on the I-94 and CBP will use this date to calculate any overstay...

There is a little bit more to the risks involved of adjusting from VWP than just having a clean medical and no criminal record....

Anyone intending to go this route should be given info on any risks that are involved not just the opinion of "you really shouldn't have any problems"....

But yes it can be done.... I know I have done it... but yes there are risks involved....

Kezzie

[JubJub 0]

Where are you getting the information that an overstay would not be counted from the date the I-94 expired?? it is common knowledge that in the event of a denial you are out of status from the date on the I-94 and CBP will use this date to calculate any overstay...

I don't want to take this post further off topic, but could you tell me where it mentions that on the USCIS site or somewhere else?

Cheers.

"Unlawful presence is "tolled" (does not accrue) during the pendency of a timely-filed, nonfrivolous petition to change or extend nonimmigrant status. In addition, the alien must not have worked without authorization before the change of status or extension of stay was filed, or while it was pending. A petition is considered timely-filed if it is filed prior to expiration of the alien's previous I-94 card. It is "nonfrivolous" if it has an arguable basis in law or fact. An example of a frivolous filing would be a petition to change to H-1B status when the beneficiary has no education or work experience.

If that timely-filed petition is ultimately approved by USCIS, it will be back-dated to when the previous I-94 expired and no unlawful presence will accrue. If the petition is ultimately denied, unlawful presence accrues from the date of denial. (If, however, a timely-filed application is denied because it was frivolous or because the alien engaged in unauthorized employment, any time after the I-94 expiration date will be considered "unlawful presence". Or, in the case of an alien admitted D/S, unlawful presence begins to accrue on the date of denial."

http://www.usvisahelp.com/art_thebras.html

Therefore, if the AOS is denied (remote chance), accrual presence will only begin from the date of denial. Please don't scare him with thoughts of 3 and 10 year bans.