Hypothetical AOS via VWP ?

[Unknown1983 0]

I am the USC currently in the united states pregant and due to give birth in Nov. My husband is a UK citizen, and plans to attend the birth of our son in NOV via the VMP. I also currently hold a spouse visa for the UK, just to let everyone know. We have not really decided what we want to do, as far as to live in the UK or start the US process.

If he comes in NOV just for the birth as a visit, and at some point we decide to just stay here...can I file AOS for him? Will this not be allowed as we are already married prior to him entering the US? Of course he would have no intention to immigrate at the POE because its just to be here for the birth and we have no idea what we are wanting to do. Also we would make a decision before the 90 day expiry date.

How long does AOS take? Like I said these are just questions, as I read alot about AOS from people who married inside the US then just stayed. But I havent read much on cases where the people were already married. What is the denial rate? I have read things on bans if he were to get denied, but is this only after long term overstays? Or does that apply to short overstays..say about 2 months? Or would he never be considered an overstay as he applied for AOS prior to VMP expiring?

sorry for all the questions, we are just trying to figure out our options. I am aware of the CR-1 visa and what it entails...but we are trying to stay together..for our son. Thanks!

[Inky 1,111]

AOS is anywhere from 2 to 5 months usually, depends on the time of year, if there are holidays or hold ups, how many petitions are put in at that point in time to the office you are filing through etc.

[Clementina 1]

Your case sounds a lot like mine.

My husband is the USCitizen; we have been married for 15 years and lived in Brazil, my home country, for most of our married life. No kids.

For the past 2 years we have been in the process of deciding US or Brazil; he is in the US and I work in Brazil. I come here as often as possible and never overstayed the allowed time of my tourist visa. He has no problems to visit me because he holds a resident visa there. During this last visit, we decided to stay in the US. So, happily I went to get all the info, red in detail all forms, met once with an immigration lawyer for initial advice, etc.

Yes, AOS is technically possible and it can take, if all forms are ok, about 6 months (so I was told by the lawyer). The catch is: the immigration officer during the very last step of the process, the interview, may not believe that I was telling the truth as I crossed the border at the port of entry. He/she might just say: "you did not state your true intentions" and a lie to an immigration officer is considered a felony. The GC is denied.

I found in a site from an attorney firm (specialized in immigration matters) a list of the 10 top reasons why a visa is denied (based on US official statistics from 2008). Sorry I do not remember where I found this. One of them is called "misrepresentation", a category that I think fits this case. Unfortunately, for 78% of such cases a visa is denied. Immigration has zero tolerance if they suspect of a lie. I do not know how much of this category refers to a lie as you cross the border or some other type of lie. What they say is "you lie, you fry". So you must have a very good story to tell and, hopefully, some type of proof that when your husband crossed the border he really did not intend to stay.

If you have that, you are safe to go !

It is not clear to me if a visa denied in this case would raise a "bar" (regulations speak of a 3-year bar and a 10-year bar), considering he did not overstay his tourist visa. I tend to think not (but have no real info about this, just my interpretation of all I have red so far). Anyway, a visa denied in his record is not good. It would take some explanation next time he applies from England through the consular procedure.

Anyway, this is what my husband and I just decided to do - the consular procedure from Brazil. I have only my word that I did not mean to stay when I crossed the border, whereas all other evidence may indicate the contrary. We do not want to risk. Consular procedure might take up to a year in my case. And I was told I could have special permits to come for short visits while I wait. Meanwhile, all my savings go to the pocket of American Airlines.

Edited August 28, 2010 by Clementina

[Clementina 1]

Just found the site I mentioned earlier...

http://guruimmigration.wordpress.com/2009/09/14/top-10-reasons-why-immigrants-get-visas-denied/

[amykathleen2005 441]

I am the USC currently in the united states pregant and due to give birth in Nov. My husband is a UK citizen, and plans to attend the birth of our son in NOV via the VMP. I also currently hold a spouse visa for the UK, just to let everyone know. We have not really decided what we want to do, as far as to live in the UK or start the US process.

If he comes in NOV just for the birth as a visit, and at some point we decide to just stay here...can I file AOS for him? Will this not be allowed as we are already married prior to him entering the US? Of course he would have no intention to immigrate at the POE because its just to be here for the birth and we have no idea what we are wanting to do. Also we would make a decision before the 90 day expiry date.

How long does AOS take? Like I said these are just questions, as I read alot about AOS from people who married inside the US then just stayed. But I havent read much on cases where the people were already married. What is the denial rate? I have read things on bans if he were to get denied, but is this only after long term overstays? Or does that apply to short overstays..say about 2 months? Or would he never be considered an overstay as he applied for AOS prior to VMP expiring?

sorry for all the questions, we are just trying to figure out our options. I am aware of the CR-1 visa and what it entails...but we are trying to stay together..for our son. Thanks!

The fact that you have considered having him adjust status after he has entered on a visitor's visa and that view it as an option can be considered preconceived intent. And if he enters the US on a VWP saying that he is not planning on immigrating and does it may result in a denial with no chance of appeal.

Edited August 29, 2010 by amykathleen2005

[Harpa Timsah 13,258]

I disagree with the above posters. I am going to take your word that you really don't know what you plan to do, and IMHO, if your husband does not lie when he asked questions at the POE, the AOS would be fine if thereafter you decide he needs to stay and that you are not moving to the UK. Even if they did suspect preconceived intent. that alone is no reason to deny your AOS. If he has no other reason to deny, the advice on this site is generally that the "positive factor" of being married to a USC far outweighs the negative factor of possible intent. Now, if he is caught in a lie at the POE, then that is trouble, but I am sure you are aware of that and don't need reminding If he has other reasons to deny, then I don't know what to tell you.

Now, that said, there is some weird stuff going on with Visa Waiver Program applicants (which your husband would be), that you don't have the option to appeal a decision. Also, if the petition is filed after the 90-day window, then the overstay itself might be grounds enough to deny. They are getting really strict with this lately.

To your other questions:

AOS took 3-4 months over the summer... can take up to 6 months.

Your husband would be "stuck" here until he got his Advance Parole Travel documents, which is taking about 3 months to have in hand. He would not be able to travel home until that point.

He would never be out of status if you made a decision and filed before the 90-days are up.

There are other people who have been married already, came to the US, then decided to stay and have been approved. You can look in the April or May filers thread to see people's most recent stories, for instance (in the progress subforum).

Or, a safer route may be to see if you qualify for the Direct Consular filing, since you have a spouse vise to the UK. (Maybe you have that but not residence, I don't know your case).

[Unknown1983 0]

Nothing I am saying is intent, I am just asking questions. There is no harm in asking questions. Plenty of people come to this country and get married, then file AOS..so I see no difference. The fact that my marriage has been in tact longer, and that we have lived in another country together, would show our marriage is true..and not a fake for green card purposes.

We have in no way decided where we want to live, obviously not as I hold I UK VISA. The only reason I am in the US is to have my son, because the hospitals near where I was in the UK are not satisfactory..and I didnt feel comfortable. My husband plans to come for the birth in Nov to visit. And thats all that will be said at the POE as its the honest truth. I dont know whether I will go back to the UK with him, or just stay and sort something else out. I dont see how an immigration officer would see fault in this, as I can show proof of a valid UK visa..this is actually my second UK VISA, as I was a fiance before.

I know AOS is tricky and you need proof, but other than the IO thinking we intended to immigrant..there is no reason for denial otherwise. I could possibly be eligible for DCF via London..but I am not sure as I am currently in the US and having a child here. I am researched that as well, but cant find any 100% answers..as there are some indescrepancies and holes in that process also. I will check out that thread you speak of...

[ValerieA 350]

I was married when I entered the US to spend time with my USC husband, on a B-2 visa. I was also going through the CR-1 process. I ended up doing AOS after entry, with no problems. Make sure when your husband enters that he carries with him proof of his ties to the UK - lease of his flat, a letter from his employer that he is expected back at work on such and such a day, etc. Of course, this is based on the fact that his intention when entering the country is simply to visit you during this special time.

I do not have any hard and fast statistics for denial rates, but I do know that only 1 person in the April filers for AOS/non-K visa was denied, and that was, I believe, a paperwork problem. None so far in the May filers have been refused, and almost everyone have gotten their approvals right at the interview. Mine took 3.5 months, from filing to actually having my green card in hand.

I would wait on this topic until your husband is actually in the US, and then talk about your options and decide what to do. Feel free to ask us any questions you have at that time. Just don't let him go out of status on the VWP, that has been causing some issues at some offices lately.

[Myopia 93]

I just want to mention so as to throw some additional flavor in the sauce that UCIS issued a new memo on the 20th August

Memo

This looks like good news as it explicitly states that those immigrants with pending 1-485's should be adjudicated whether the immigrant is in ICE custody or not.

[JimVaPhuong 4,863]

I just want to mention so as to throw some additional flavor in the sauce that UCIS issued a new memo on the 20th August

Memo

This looks like good news as it explicitly states that those immigrants with pending 1-485's should be adjudicated whether the immigrant is in ICE custody or not.

Actually, all it does it require USCIS to try to expedite adjudication of petitions, at the request of ICE, if the applicant is in removal proceedings. It also requires ICE to request expedited adjudication in those cases, and allows ICE to use their discretion to dismiss removal proceedings if it appears the alien is clearly eligible to immigrate based on their submitted petition.

The intention of the policy memorandum is to reduce the backlog of aliens who have a stay of removal proceedings pending a decision by USCIS on a submitted petition.

USCIS has always adjudicated petitions once they've accepted them. This policy memorandum doesn't change that, nor does it require USCIS to actually accept a petition if they've determined someone is immediately deportable. What it DOES mean is that you should be able to expect a faster decision on a pending petition if you are in removal proceedings, but it doesn't improve your chances of the petition being approved, nor provide any opportunity to appeal the USCIS decision if you entered using the VWP.