Please HELP regarding VWP & AOS , marriage to USC and now having Baby

[FreakyBot 0]

I met my husband (US citizen) through the internet, in July 2009. In February, 2010, he came to Portugal to visit me . Later, in May I decided to come to the USA, under the visa waiver program, since Portugal is in the list of visa waiver countries allowed in the USA. In July 2010, we got married in Chesterfield/Virginia and later that month, I returned to Portugal because, since i entered the country as a visitor, i cannot stay for a period superior to 3 months. In late September, i came back to the USA to visit my husband, under the same visa waiver program.

I wish to become a permanent LEGAL resident and not having to go back and forth every 3 months, because its extremely costly and naturally I want to stay with my husband . I have contacted USCIS immigration services and received mixed information. The person my husband talked to informed us, we had to file i- 130 and i-485 and that I can remain in the USA while it is being processed. (Petion for alien relative and application to register permanent residence) at the same time, even though i had entered the country under the visa waiver program. The second, informed me I cannot file for permanent forms i-130 and I-485, since i entered the country under the visa waiver program and that we may face legal punishment if our intentions were to circumvent the immigration process. So my question is, specifically, what do i have to do to become a legal immigrant. And besides the following forms, Petions for alien relative and application to register permanent residence, do I need to do anything else.

I have 5 specific questions that i need answered which the USCIS phone representative was unable to answer regarding the USCIS form I-485. (I have read all self help information) She emphasized I contact a community based legal representatation group for help.

1. The information says "if you have entered the country legally (which I did under the visa waiver program) then I can file I-130 and I-485 at the same time. On Form I-485, on section 2 which block do I select? a, b, or h with which type of explanation?

2. At the airport I was interviewed by US Customs and Border agents at entry. In section 3 it asks were you interviewed by an immigration officer. Is that the same? Shall I answer "yes or no"?

3. Our intentions of marriage was NOT to circumvent any immigration laws. However, after being here for two months, we did decide we were so in love that we wanted to get married. I am now one month pregnant with his baby. I want to ensure we are not penalized. We want to do things the right way. How can we now ensure that everything is legitimate.

4. Is there a certain length of time I have to stay out of the USA before I can return between visits?

5. Can my husband submit I-130 now and submit I-485 in about a week or would that jeopardize my ability to stay in the USA while the I-485 is processed? Do you recommend we submit I-130 and I-485 together?

Thank you in advance.

[VanessaTony 3,567]

When did you last arrive in the US? Are you in the US currently?

1. You did enter legally

2. Yes you were interviewed

3. You were married and THEN left and THEN came back. Did you admit you were coming to see your husband? Or did you say boyfriend or what? It does appear you are trying to circumvent immigration laws by remaining. Had you AOS'd when you actually got married, not a problem... now it just looks like you didn't want to do a CR-1 visa and wait for it

4. It's up to CBP

5. Now that you are here, and now that you are pregnant I would NOT leave and I would file the I-130 and I-485 (together). you're lucky that intent isn't solely used against you. It could easily be that you would have done CR-1 if you weren't pregnant, but because you are you're better of staying and AOSing because it's unlikely you'd be approved in time to be there (in the US) for the birth

[JoannaV 174]

As far as your options go, you can either stay in the US and adjust status or file for a CR-1 visa and move to America once that is granted. You can file for adjustment of status after entering on the Visa Waiver Program, so long as you had no intent of doing so when you entered. I do not know how often USCIS deny petitions because the petitioner cannot prove they had no such intent. I don't think it happens often, and there is nothing in your case to give the impression that you had intent, but it is a risk you take. Also, recently some people have been deported who had filed for adjustment of status whilst on VWP and had not received the receipt by the time their 90 days were up. So you would want to make sure you filed soon enough to receive the receipt before your 90 days were up. You've been here for 2 months already, so I don't know if that means you should file right NOW or whether it's late enough to be risky already. If you go the CR-1 route then you do not have these worries, however you will have to go back to Portugal.

1. The information says "if you have entered the country legally (which I did under the visa waiver program) then I can file I-130 and I-485 at the same time. On Form I-485, on section 2 which block do I select? a, b, or h with which type of explanation? I believe it a (a). It says that this applies if you are filing a petition which, if approved, will give you an immediately available visa number.

2. At the airport I was interviewed by US Customs and Border agents at entry. In section 3 it asks were you interviewed by an immigration officer. Is that the same? Shall I answer "yes or no"? It asks if you were "inspected". Answer yes! This merely means that you entered legally and so were "inspected". If you entered without inspection it means you sneaked in.

3. Our intentions of marriage was NOT to circumvent any immigration laws. However, after being here for two months, we did decide we were so in love that we wanted to get married. I am now one month pregnant with his baby. I want to ensure we are not penalized. We want to do things the right way. How can we now ensure that everything is legitimate. The CR-1 visa is a less worrisome method of application. However your pregnancy might make you even more motivated to try to remain in the US and adjust status. Looking at other people's timelines, they tend to receive notice that their application has been received with 1-2 weeks. So if you file the I-485 NOW then you should be ok to do so before your VWP trip expires.

4. Is there a certain length of time I have to stay out of the USA before I can return between visits? If you file the I-485 then you cannot leave the US until you get your green card or advance parole. If you file just the I-130 in preparation for a CR-1 visa then you have to reside in Portugal, however you can visit. There is no rule as to how often you can visit; it all depends on the discretion of the immigration officer at the airport. In general the guide is to spend longer outside the US than inside. It is also best if you have evidence of employment/residence in Portugal. However this is not a strict rule. If you have a CR-1 application in process then the immigration official "should" understand that you are visiting more often with no intent to overstay, and will only be visiting so often for the brief period whilst you wait for your visa.

5. Can my husband submit I-130 now and submit I-485 in about a week or would that jeopardize my ability to stay in the USA while the I-485 is processed? Do you recommend we submit I-130 and I-485 together? If you are going to submit the I-485 then submit the two forms together. Follow the guide here: http://www.visajourney.com/content/i130guide2

[VanessaTony 3,567]

As far as your options go, you can either stay in the US and adjust status or file for a CR-1 visa and move to America once that is granted. You can file for adjustment of status after entering on the Visa Waiver Program, so long as you had no intent of doing so when you entered. I do not know how often USCIS deny petitions because the petitioner cannot prove they had no such intent. I don't think it happens often, and there is nothing in your case to give the impression that you had intent, but it is a risk you take. Also, recently some people have been deported who had filed for adjustment of status whilst on VWP and had not received the receipt by the time their 90 days were up. So you would want to make sure you filed soon enough to receive the receipt before your 90 days were up. You've been here for 2 months already, so I don't know if that means you should file right NOW or whether it's late enough to be risky already. If you go the CR-1 route then you do not have these worries, however you will have to go back to Portugal.

Thank you for reminding me of what I didn't mention.

IF you choose to file the I-130/I-485 your application MUST be received (and accepted.. i.e. the NOA1 generated) before your 90 days in the US are up, otherwise you risk denial and VWP entrants have no chance of appeal if denied, you are simply deported which carries a 10 year ban (which you would need to file a waiver for if you wanted to try and enter before then).

Edited November 23, 2010 by Vanessa&Tony