Visa Waiver Means Tourist Visa???

[Sc0tt28 26]

I still contend that the back of the I-94W (where you sign) gives very clear instructions. Here is what it says:

Waiver of rights: I hereby waive any rights to review of appeal of U.S. Customs and Border Protection officer's determination as to my admissibility, or to contest, other than on the basis of application for asylum, any action in deportation.

Certification: I certify that I have read and understand all the questions and statements on this form. The answers I have furnished are true and correct to the best of my knowledge and belief.

Then there is the signature block, followed by the date. Then it gives the Paperwork Reduction Act Statement...not really important. After that it gives instructions about the I-94W itself, that is, it needs to be returned when you leave the U.S.

Then way at the bottom of the form, and keep in mind, this is the part that gets stapled into your passport so you don't lose it, and you signed it saying you understand what it says. And even if you didn't read it when you signed it, you have it in your possession for up to 90 days giving you plenty of time to read it at your own leisure. It says:

WARNING: You may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under this program. You are authorized to stay in the U.S. for 90 days or less. You may not apply for: 1) a change of nonimmigrant status; 2) adjustment of status to temporary or permanent resident, unless eligible under section 201(b) of the INA; or 3) an extension of stay. Violation of these terms will subject you to deportation. Any previous violation of this program, including having previously overstayed on this program without a proper DHS authorization, will result in a finding of inadmissibility as outlined in Section 217 of the Immigration and Nationality Act.

To make it easier to read, I'll dig out the juicy parts and explain them for you since you have a hard time grasping the concept.

You may NOT apply for:

1) a change of nonimmgrant status

That means you cannot change from WT (Waiver for Tourism) to B-2. For those of you that think the Visa Waiver Program is simply an extension of the "B" nonimmigrant visa, that is not correct, it is a seperate section of the INA...read up on it.

2) adjustment of status to temporary or permanent resident

Section 201(b) of the INA talks about numerical limits for immediate relatives of US citizens...or lack there of.

3) an extension of stay

This is the part you are going to want to pay attention to. You may think that because I filed for an extension before the expiration of the I-94W then I'm covered right? Wrong! Because you signed the form saying you "read and understood" "all the statements" on the form, to include the part where it says you cannot even apply for an extension, let alone get it approved.

Violation of these terms will subject you to deportation. It does not say it "might" subject you to deportation or it "could" subject you to deportation...it says it "WILL".

Lastly, any previous violation of the VWP program will result in a finding of inadmissibility as outlined in Section 217 of the INA. If you feel the need to look it up, Section 217 is just the actual law that gives authority to allow the VWP as well as the authority to enforce the limitations of it.

Have fun.

[rsn 135]

WARNING: You may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under this program. You are authorized to stay in the U.S. for 90 days or less. You may not apply for: 1) a change of nonimmigrant status; 2) adjustment of status to temporary or permanent resident, unless eligible under section 201(b) of the INA; or 3) an extension of stay. Violation of these terms will subject you to deportation. Any previous violation of this program, including having previously overstayed on this program without a proper DHS authorization, will result in a finding of inadmissibility as outlined in Section 217 of the Immigration and Nationality Act.

2) adjustment of status to temporary or permanent resident

Section 201(b) of the INA talks about numerical limits for immediate relatives of US citizens...or lack there of.

201(b) says that any immediate relatives of a USC are not subject to any direct numerical limits.

Edited February 10, 2010 by rsn

[Sc0tt28 26]

201(b) says that any immediate relatives of a USC are not subject to any direct numerical limits.

That's what I said...thanks

[HeatDeath 430]

201(b) allows for any immediate relatives of a USC to adjust status without waiting for a visa number to be available.

Lol. I was about to ask: Is 201(b) the section of INA that allows immediate relatives to adjust status? Because if you marry someone while in the US on the VWP, you are now an immediate relative of a USC. Now, they still obviously discourage marrying while in the country on a VWP entry, and it's certainly very risky because you open yourself up to denial of the AOS based on misrepresentation (modulo case law and precedent effectively eliminating intent at time of entry as a sole cause for denial), but I'll betcha that's the out that allows this process of AOSing from a VWP entry to work at all, for anybody.

[rsn 135]

That's what I said...thanks

Ah, re-reading your post, I can now see that I interpreted that portion incorrectly before.

[JERIII 8]

Lol. I was about to ask: Is 201(b) the section of INA that allows immediate relatives to adjust status? Because if you marry someone while in the US on the VWP, you are now an immediate relative of a USC. Now, they still obviously discourage marrying while in the country on a VWP entry, and it's certainly very risky because you open yourself up to denial of the AOS based on misrepresentation (modulo case law and precedent effectively eliminating intent at time of entry as a sole cause for denial), but I'll betcha that's the out that allows this process of AOSing from a VWP entry to work at all, for anybody.

It's actually more direct than that. The section of the INA that describes people INeligible to adjust includes the following:

(4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ;

section 217 is the Visa Waiver Program. This makes adjustment from the VWP impossible for people who are not immediate relatives. It is legal for those who are.

[belinda63 3,038]

If it were legal for a spouse to come into the US on the VWP and file to adjust status then why is there a spousal visa required for those people who live in VWP countries? Wouldn't it save the Government and the Embassy a lot of time and money if they could just say "Oh you don't need a visa, just fly to the US under the VWP and adjust status when you get there."

Come on maybe they won't get caught, maybe they will but I wouldn't want to take the chance.

[britta 0]

I met with a lawyer when my partner and I were discussing our options, and (although we were not considering this at all), she said that in her 15 years of practice, she knew of one successful AOS from a 90 day visa waiver, and that involved an unplanned pregnancy. Basically, the burden will be on your brother's wife to prove that she did not come into the US with an intent to adjust her status and therefore commit visa fraud, which given the fact that she is already married to him, would seem to be impossible. The likelihood that INS will believe that someone's wife entered on a tourist visa and applied for an AOS within 90 days without that intent originally seems almost impossible. Moreover, any action taken in the first 60 days is considered original intent, so if she makes any move to, say, apply for adjustment of status, get an SSN, etc, there is practically no way she could be approved. It may be possible, day, if someone is allowed to come over on a 6-month tourist visa (e.g. Canadians), to plausibly prove they did not come with an intent to stay but met someone and fell in love, etc, but on a 90-day visa that is unlikely, and given that the two people are already married, it is even more unlikely.

The marriage and fiance visas exist for a reason, and that is to avoid having people enter the country for fraudulent reasons and then stay here. Yes, it is a major pain to have to spend all that time apart and money and jump through so many bureaucratic hoops, but trying to cheat the system just causes a major headache for you in the longterm and makes it a little harder for everyone else (the government, since they have to be more suspicious, and everyone who does follow the rules, as our actions are more likely to be second guessed)

[rsn 135]

I met with a lawyer when my partner and I were discussing our options, and (although we were not considering this at all), she said that in her 15 years of practice, she knew of one successful AOS from a 90 day visa waiver, and that involved an unplanned pregnancy. Basically, the burden will be on your brother's wife to prove that she did not come into the US with an intent to adjust her status and therefore commit visa fraud, which given the fact that she is already married to him, would seem to be impossible. The likelihood that INS will believe that someone's wife entered on a tourist visa and applied for an AOS within 90 days without that intent originally seems almost impossible. Moreover, any action taken in the first 60 days is considered original intent, so if she makes any move to, say, apply for adjustment of status, get an SSN, etc, there is practically no way she could be approved. It may be possible, day, if someone is allowed to come over on a 6-month tourist visa (e.g. Canadians), to plausibly prove they did not come with an intent to stay but met someone and fell in love, etc, but on a 90-day visa that is unlikely, and given that the two people are already married, it is even more unlikely.

The marriage and fiance visas exist for a reason, and that is to avoid having people enter the country for fraudulent reasons and then stay here. Yes, it is a major pain to have to spend all that time apart and money and jump through so many bureaucratic hoops, but trying to cheat the system just causes a major headache for you in the longterm and makes it a little harder for everyone else (the government, since they have to be more suspicious, and everyone who does follow the rules, as our actions are more likely to be second guessed)

1. The INS hasn't existed since 2003. USCIS adjudicates AOS applications.
   
2. If you read the USCIS adjudicator's field manual, you well see, clear as day, that the burden is NOT on the immigrant to prove that they did not have intent to enter and adjust status.
   

[ScottThuy 140]

I see where you are coming from with the field manual... I should have worded differently... rather than intent---- it boiled down to the method of entry.. the individual entered the country on a VWP basis and must adhere to those guidelines along with the limitations stated in the I-94... so rather than intent maybe I should have said actions...

As others have said.. if it could be done legally on a VWP, then there would not be any Canadian members on VJ...

[britta 0]

Ok, the USCIS, not INS, for any purposes it does not change the information I provided, obtained fairly recently from an immigration lawyer with 15 years experience. You might want to put your interpretation of the field manual up against one with experience in immigration law, but if the stakes are being banned for life, you might not want to be so cavalier.

The relevant point here is visa fraud, and entering on one visa with the intent to do something illegal *is* visa fraud. A visa waver (tourist visa) status is not one of dual intent, that is, you cannot enter both with the intent of visiting AND with the intent of staying permanently. Even if you can apply for AOS as an immediate relative according to the manual, you still have to prove that your intent was not to do so (and nowhere in the part of the manual quoted does it say anything about not proving intent). Yes, you can enter as a tourist, fall in love, get married, and apply for AOS and have it be legit. However, since it s a way to circumvent an otherwise lengthy and expensive process, the USCIS does look at it with some suspicion. Since the visa waver for Australians is relatively short AND your brother's wife is already his spouse, proving (lack of) intent will be hard. You may get extremely lucky, but why risk a 95% of deportation for life? Do you think everyone else from a VWP country enjoys wasting money and spending time apart?

[rsn 135]

Ok, the USCIS, not INS, for any purposes it does not change the information I provided, obtained fairly recently from an immigration lawyer with 15 years experience. You might want to put your interpretation of the field manual up against one with experience in immigration law, but if the stakes are being banned for life, you might not want to be so cavalier.

The relevant point here is visa fraud, and entering on one visa with the intent to do something illegal *is* visa fraud. A visa waver (tourist visa) status is not one of dual intent, that is, you cannot enter both with the intent of visiting AND with the intent of staying permanently. Even if you can apply for AOS as an immediate relative according to the manual, you still have to prove that your intent was not to do so (and nowhere in the part of the manual quoted does it say anything about not proving intent). Yes, you can enter as a tourist, fall in love, get married, and apply for AOS and have it be legit. However, since it s a way to circumvent an otherwise lengthy and expensive process, the USCIS does look at it with some suspicion. Since the visa waver for Australians is relatively short AND your brother's wife is already his spouse, proving (lack of) intent will be hard. You may get extremely lucky, but why risk a 95% of deportation for life? Do you think everyone else from a VWP country enjoys wasting money and spending time apart?

The AFM cites case law which makes it abundantly clear that the immigrant does not need to prove intent at the AOS interview, and cannot be denied for intent-related reasons. Have a look at this section of the AFM and note mention of the following two cases:

• Matter of Cavazos , 17 I. & N. Dec. 215 (BIA, 1980) . In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain.

• Matter of Ibrahim , 18 I. & N. Dec. 55 (BIA, 1981). The benefits of Matter of Cavazos , supra , are limited to immediate relatives, and an application for adjustment by a fifth preference immigrant with a preconceived intention to remain is properly denied in the exercise of discretion.

I'm not disagreeing with you that it is an underhanded thing to do, and I personally would not do such a thing, but the fact remains that the immigrant does not have to prove intent to adjust. It is possible that there are some consequences of doing such a thing come time to apply for naturalization, I don't know. All I know for sure is, intent is not an issue a the AOS interview. There is law on the books to prove this, and it is even mentioned in the adjudicators field manual, which means they all know about it too. Furthermore, there are plenty of instances, on here especially, of lawyers who are not entirely informed. You assertion that a lawyer is somehow right because he is a lawyer is laughable.