AOS from Visa Wavier if the USC has a criminal record?

[missliberty 0]

Hey everyone,

I hope this is the right place to post my question, if not I apologise!

I am in the US on visa waiver, to visit my boyfriend... We decided to get hitched and stop being long distance and I plan to apply for AOS and stay here with him instead of returning to New Zealand. I've been here on holiday for a couple of months already, and we will file before the 90 days is up so that's not really an issue.

I've been looking into what's needed when I file the forms, and I have a couple of questions. Do I need to include police certificates for the countries I've lived in for more that 12 months as I would have to do with the K3 visa application?

Also, my husband has a rather colorful criminal history with a couple of felonies and also a couple of years in prison. Is that going to be a problem? They aren't violent crimes, so I'm hoping it won't be an issue.

Also, because I'm on visa waiver I don't know if I'm able to be named on a joint bank account or anything to prove joint finances. So any advice with regards to proving our relationship would be most appreciated!

[JimVaPhuong 4,863]

I don't see police certificates listed as a requirement anywhere. Those are usually required by US consulates abroad when screening applicants for admissibility to the US. If you had a criminal history that made you inadmissible then you would not (or should not) have been admitted under the VWP.

Your husband's criminal history won't matter UNLESS he was convicted of a crime that would make him ineligible to sponsor you for an immediate relative visa. For example, if he had a conviction for a sex offense that was covered by the Adam Walsh Act then he would be ineligible to submit an I-130 petition on your behalf. I don't personally know of any cases where the AWA was used to deny a concurrent I-130/I-485 filing, but I don't spend much time reading about AWA cases. I have read through the act and don't find any exception in it for beneficiaries who are already in the US.

Some banks will allow you to be added to your husbands accounts without an SSN. Many will not. Some provide restricted accounts for people who don't have an SSN or ITIN. The restriction is that they won't allow any transactions over $10,000 which would need to be reported to the IRS. Shop around and see what the banks tell you. Other than that, try to get your name on some of the household bills, like utility and phone bills. See if you can get added to his medical insurance, or made beneficiary of his life insurance.

A general warning: The ESTA application or I-94W that you signed when you entered on the Visa Waiver Program contains some important declarations, including your declaration that you do not intend to immigrate, and your waiving of any right to appeal. This means that any decision by USCIS regarding your application is final - no further review or appeal is available. There is plenty of anecdotal evidence that USCIS denies AOS petitions from VWP applicants at a higher rate than they do for applicants who entered with a visa. Since they don't have to worry about their decision being reviewed by the BIA or an immigration judge, they can pretty much play God with your life. Many people, including many immigration attorneys, recommend against VWP entrants filing for AOS except in extraordinary circumstances where it's clear there was no preconceived intent to immigrate. Since you came specifically to visit your boyfriend, I don't think those circumstances exist in your case. You may be taking a risk by filing for AOS now.

[missliberty 0]

I don't see police certificates listed as a requirement anywhere. Those are usually required by US consulates abroad when screening applicants for admissibility to the US. If you had a criminal history that made you inadmissible then you would not (or should not) have been admitted under the VWP.

Your husband's criminal history won't matter UNLESS he was convicted of a crime that would make him ineligible to sponsor you for an immediate relative visa. For example, if he had a conviction for a sex offense that was covered by the Adam Walsh Act then he would be ineligible to submit an I-130 petition on your behalf.

Since you came specifically to visit your boyfriend, I don't think those circumstances exist in your case. You may be taking a risk by filing for AOS now.

Hey, thanks so much for the help! I didn't see the police certificates listed as required but I just wanted to make sure.

As far as the criminal record my husband has goes, he hasn't commited any violent or sexual crimes so I think it will be ok.

As for the warning at the end. Thanks for that, I know that the way we are going about it is a little different, but we did not intend to marry when I got here and I have ties to my home country so we can prove that if asked so I'm not sure it will be too much of a problem. As sappy as it sounds, we are too happy to not be together and are willing to take the risk.

Thank you for the help though :-)

[Justine+David 218]

I would think that if you are too happy to be together that you wouldn't want to risk something something so that you won't be together...but good luck.