I-485 Denied. Options to reapply

[LaL 418]

Please show me ONE CASE, only 1, where somebody successfully adjusted from WVP.

huh??? there are many right here on VJ!

Edited October 26, 2009 by LaL

[MonkeyJuice 3]

There's a whole forum of people adjusting from work & tourist visas including VWP. Check out the July filers, I can see at least 2 on there that have received their green cards already.

[Boiler 45,492]

There's a whole forum of people adjusting from work & tourist visas including VWP. Check out the July filers, I can see at least 2 on there that have received their green cards already.

I was aksed by an Immigration Lawyer why I did not want to go the VWP route, much more common than a K.

[cherryswife 3]

There has always been a provision for an immideate relative of a USC to change their status after entering on a non-immigrant visa.

OP has NO VISA. Not even a NON -IMMIGRANT VISA! She therefore did not enter on a non-immigrant visa.

It has nothing to do with having intent to get married it is to do with having intent to use a VWP/tourist visa to get around having to file for the correct visa.

It is not jumping the queue and it is not illegal and 1000's of people adjust their status using this route every year.

Please show me ONE CASE, only 1, where somebody successfully adjusted from WVP.

If you came to the USA with no intent to remain but due to a change in your circumstances you now wish to remain and you are the immidiate relative of a USC then you can legally file for AOS and remain in the US while it is being processed.

She did, and it got denied!

As for the comment about it being almost impossible to do AOS from VWP?tourist visa this is totaly incorrect and there are 100's of VJ members who had done AOS from VWP/Tourist visas.

Again, I haven't seen a single case of VWP adjustment, although I'm sure it exists. B2 is different thing, as it's a visa.

USCIS can not issue a denial of AOS just because you filed for AOS after entry on a VWP or tourist visa, it is written into immigration law.

Correct. So they find a tiny, itsi-bitsi mistake and use that as a denial. You will have to face reality that trying to adjust from no visa to permanent resident is regarded as foul play, and many IOs see it that way as well. It's like saying it's against the law to discriminate against somebody based on his race; therefore, there's no discrimination based upon race in this country.

My Wife entered the USA from the UK back in 2005 on a VWP and she got her greencard in 2005, she lifted conditions in 2007 and got her 10 year greencard and she became a USC in 2009.

You may also like to do a search here on VJ for the 100's of others here that have done exactly that.

The OP was not denied because they were on a VWP they were denied because they did not meet the income limits for AOS and did not provide a co-sponsor.. nothing to do with VWP.

Tay

Yes, it has been done many times before and it is perfectly legal. And yes, we were denied for financial reasons only.

Thanks

[trillium13 84]

Our case is living proof that you can successfully adjust from VWP. With significant overstay at that. Neither of those things even came up at our interview.

If someone is giving misinformation on a subject like that, where there are MANY successful cases, they lose all credibility when advising on anything else.

Just saying.

Edited October 27, 2009 by trillium13

[Starburst 4]

There are tons of cases on VJ of people who had been approved on a tourist AND with tons of overstay.

Personally I was here as a tourist/visitor and overstayed just over 3 years by the time my interview came and it was never a question.

He was more concerned about our marriage!

To the OP! Good Luck! I hope you figure it out and are able to re-apply. It sucks being away from your loved one!

I don't have any advice to offer, but I wish you all the best

[Kittykisses73 1]

I hate when people make comments about adjusting from VWP! It happens, get over it! Just because our situations ended up better than yours does not give you the right to ASSUME that people are trying to cheat the system & try to scare people into thinking they are criminals for finding themselves in a more fortunate situation than you did! Would I suggest someone going that route to avoid the process, ABSOLUTELY NOT! But people do find themselves in spontaneous moments & sh!t happens! We adjusted from VWP in 4 months, it happens ALL THE TIME! As for never seeing a sucessful case, WELL NOW YOU HAVE!!!!!!!

I am sorry about your denial, my husband is from Australia, and I can't imagine what you must be going through. I hope you get things worked out, and wish you the very best of luck! You are in my thoughts!

Cherry's Wife:

There are many forms of visas allowing to "visit" the USA. The "lowest" (for lack of a more appropriate term) is the B2 "visitor's visa" for people who just want to go on vacation. It is valid up to 6 months.

USCIS and many on this forum do not like people getting married and then adjusting status from visitor to permanent resident. While it's possible, it's seen as foul play, cutting in line of those who are waiting patiently in their home country for their turn. People who adjust from B2 have to prove that they had no intent to get married when arriving here as a visitor by showing that they have a job and apartment/house waiting at home for them to return to. If they can't prove that, their application will be denied based on the assumption of visa fraud.

Some countries are participants of the VWP, so no visa is needed for a brief vacation up to 3 months. It is commonly assumed that adjusting from VW (which is NO VISA) to permanent resident is simply impossible. It is not; it's just almost impossible, so impossible, indeed, that I haven't seen a single successful case yet.

Therefore, for all practical purposes, you'd have to present such a watertight textbook application, that is denial proof. Any tiny little mistake will trigger a denial, because of you know what.

There's no appeal to a denial of AOS, as you have no status in this country and immigration is a privilege, not a right. You'll have to return to Australia and start the process from there.

Regarding taxes, I took home a salary of close to $100K in 2008 and still had a total loss on my income statement because the commercial property an LLC (of which I'm part owner) bought, and renovated swallowed a small fortune. Hence my K-1 was all red, resulting in a negative income.

Luckily, I didn't have to meet any poverty line. But it's so easy to show income by amending one's tax return and adding money received from babysitting, dog walking, yard and eBay sales, and so on. Uncle Sam doesn't mind you paying more than you have to; they just don't like it the other time around. I therefore suggest to people in situations like yours to add income until the 125% of the poverty line is met. Does it cost money? Yes, a little bit in taxes, but that's the price of admission.

Best of luck to you.

[cherryswife 3]

Thank you Kimberley!!

[sasaqlain 24]

I hate when people make comments about adjusting from VWP! It happens, get over it! Just because our situations ended up better than yours does not give you the right to ASSUME that people are trying to cheat the system & try to scare people into thinking they are criminals for finding themselves in a more fortunate situation than you did! Would I suggest someone going that route to avoid the process, ABSOLUTELY NOT! But people do find themselves in spontaneous moments & sh!t happens! We adjusted from VWP in 4 months, it happens ALL THE TIME! As for never seeing a sucessful case, WELL NOW YOU HAVE!!!!!!!

I am sorry about your denial, my husband is from Australia, and I can't imagine what you must be going through. I hope you get things worked out, and wish you the very best of luck! You are in my thoughts!

Cherry's Wife:

There are many forms of visas allowing to "visit" the USA. The "lowest" (for lack of a more appropriate term) is the B2 "visitor's visa" for people who just want to go on vacation. It is valid up to 6 months.

USCIS and many on this forum do not like people getting married and then adjusting status from visitor to permanent resident. While it's possible, it's seen as foul play, cutting in line of those who are waiting patiently in their home country for their turn. People who adjust from B2 have to prove that they had no intent to get married when arriving here as a visitor by showing that they have a job and apartment/house waiting at home for them to return to. If they can't prove that, their application will be denied based on the assumption of visa fraud.

Some countries are participants of the VWP, so no visa is needed for a brief vacation up to 3 months. It is commonly assumed that adjusting from VW (which is NO VISA) to permanent resident is simply impossible. It is not; it's just almost impossible, so impossible, indeed, that I haven't seen a single successful case yet.

Therefore, for all practical purposes, you'd have to present such a watertight textbook application, that is denial proof. Any tiny little mistake will trigger a denial, because of you know what.

There's no appeal to a denial of AOS, as you have no status in this country and immigration is a privilege, not a right. You'll have to return to Australia and start the process from there.

Regarding taxes, I took home a salary of close to $100K in 2008 and still had a total loss on my income statement because the commercial property an LLC (of which I'm part owner) bought, and renovated swallowed a small fortune. Hence my K-1 was all red, resulting in a negative income.

Luckily, I didn't have to meet any poverty line. But it's so easy to show income by amending one's tax return and adding money received from babysitting, dog walking, yard and eBay sales, and so on. Uncle Sam doesn't mind you paying more than you have to; they just don't like it the other time around. I therefore suggest to people in situations like yours to add income until the 125% of the poverty line is met. Does it cost money? Yes, a little bit in taxes, but that's the price of admission.

Best of luck to you.

Am 100% with Kittykisses73 on this one. I couldn't have said it better myself. And who cares what USCIS and People on this forum like or dislike. What matters is what I like. As for seeing successful cases. Here's one more from B-2. I adjusted in 4 days. Try beating that

[Deb+Steve 13]

Hi - can't offer you any advice with this but can tell you that this member - recentlymarried!! - did successfully adjust from VWP after being married and she is Australian as well. You may want to PM her.

Best of luck ...

[Nik+Heather 121]

I am sorry to hear this news. Unfortunately, there is no right of appeal if you apply to adjust status from a visitor, student or work visa/status. If you have means to be in Canada legally you can certainly go there, but you will need to start the CR-1 process and that is processed in the country in which you are legally residing. I am not sure that the process could be handled through Montreal - the only US consulate in Canada that processes CR-1s unless you have some legal residency in Canada. You could look into what is involved in a student or work visa in Canada but again, those don't happen overnight, and to be honest, you don't want to stay in the US any longer than you have or you will risk incurring a 3 year ban. If you arrived in February than your 90 days would be up in May. If you have been in the US for longer than 180 days since May you will automatically incur a 3 year ban upon leaving and that would require a hardship waiver from your husband. That will increase the length of time it takes to process a CR-1 - which is averaging about a year. If you have not been in the US 180 days since your Visa waivered entry expired then you don't want to be in the US longer than 180 days or you will incur the 3 year ban. Unfortunately, even as an Australian citizen you would only be allowed a 6 months visitor visa (temporary resident permit) to Canada, and that is assuming you could reassure them that you have some financial means of support within Canada. I honestly think that you would be better served to process the CR-1 through your home country as it provides you with more opportunities to live and work while you wait out the process.

Consult a lawyer if you think it will help, but the rule about no appeals is definite and you definitely don't want to be here over 180 days past the 90 days of the VW visit. I think you must be very close to that now.

The one consideration is that if you think re-doing the taxes will lead to an obvious increase in the financial situation so that there is no question of making the 125% minimum, then you can take the risk of staying knowing you would incur a ban if you had to leave, and then re-filing the AOS all over again. While you would be together still during this process, the only problem is that by the time the AOS decision is re-processed, if it is denied again you will probably have been out of status for over a year and face an automatic 10 year ban upon leaving the US. Check into the tax situation closely to see if it would help and think hard about someone you might be able to ask to be a co-sponsor so you can re-file without leaving the US.

Kathryn,

I just wanted to clarify something - or rather ask a question, because what you say in here goes against my (admittedly casual) understanding.

A person's status changes to "adjustment applicant" when they apply for AOS, which effectively replaces their previous status. Once the adjustment is denied, they have 30 days left of legal status to clear up their affairs and go. I would think that regardless of when their original status would have run out without adjustment attempts, it is at the end of these 30 days that overstay is accumulated, not the time when their original status ran out. This was even pointed out in recent threads where an immigration judge wrote that they voluntarily deported within 30 days to avoid incurring a ban (they were waaay over 180 days from their original entry status).

By that reasoning, the OP doesn't have any overstay days (assuming they applied before the I94 ran out) and won't start accruing them for another month or so.

Am I wrong?

[Usui Takumi 1,562]

That would make sense otherwise someone who enters on a K1 marries and applies for adjustment of status and who are subsequently denied (and lets assume they don't appeal for some reason) could potentially be over the 180 days even though they followed the government guidelines exactly.

[Minya's wife 24]

It is my understanding that overstay begins accumulating from the expiration of the I-94, stops accumulating from the period NOA1 is received on Adjustment of Status, and would start accumulating again from the date of a denial notice.

[Melian 0]

Please show me ONE CASE, only 1, where somebody successfully adjusted from WVP.

*points to signature*

[bluegreen 0]

Good luck with this! We were so lucky that I adjusted status right before my husband became an independent contractor. We can't get a mortgage now, but at least I am here!! It sounds like the best option might be to re-file taxes. You could also look into getting a working holiday visa in Canada. Lots of Aussies do - I know there are lots of perametres around it, but I am not up to date on what they are.

My understanding is that Canadians (and Mexicans I think?) who do not need a visa to visit and those on VWP are in fact on an "assumed" or de facto B2 for the purposes of immigration. etc. They may not have a physical "visa" but they have the same legal status as a B2 visa would imply.

And yes, adding my voice to those affirming that here are hundreds of VJ members adjusting from VWP. While I was doing my AOS (from visitor status), I got to know many of them. Not a single one I know was denied. This has absolutely nothing to do with why this case was denied either!

Edited November 2, 2009 by bluegreen