Marriage based AOS from tourist visa possibly denied! What to do

[sdchargers 0]

Hi,

I have a friend who got married to a US citizen while on a tourist visa. They filed for AOS, had the interview today and the immigration officer told them that she was going to deny the application because upon her entry as a tourist in the United States, she signed a form saying she would not get married in the US and work in the US. What can they do now?

I am a US citizen and married my wife while she was here on a J1 visa (no two year requirement). Can we get denied for the same reason. She entered the US on a J1 internship visa.

Thanks for your help. Our interview is in a month!

[amykathleen2005 441]

You should be fine, your situation is much different than you friend's.

[Myopia 93]

Hi,

I have a friend who got married to a US citizen while on a tourist visa. They filed for AOS, had the interview today and the immigration officer told them that she was going to deny the application because upon her entry as a tourist in the United States, she signed a form saying she would not get married in the US and work in the US. What can they do now?

I am a US citizen and married my wife while she was here on a J1 visa (no two year requirement). Can we get denied for the same reason. She entered the US on a J1 internship visa.

Thanks for your help. Our interview is in a month!

What visa did your friend have?

[Aztec&Taino 144]

Hi,

I have a friend who got married to a US citizen while on a tourist visa. They filed for AOS, had the interview today and the immigration officer told them that she was going to deny the application because upon her entry as a tourist in the United States, she signed a form saying she would not get married in the US and work in the US. What can they do now?

I am a US citizen and married my wife while she was here on a J1 visa (no two year requirement). Can we get denied for the same reason. She entered the US on a J1 internship visa.

Thanks for your help. Our interview is in a month!

I think your friend's case is kind of strange. Why would they make your friend sign a form saying she would not marry? Furthermore, if she did sign such document, why did she go ahead and marry?

I do not think your wife will get denied, she did not sign such form, did she?

Best wishes!

[Harpa Timsah 13,258]

I wonder if the OP's friend came on a Visa Waiver Program, which is NOT a visa, and overstayed. When someone uses VWP they do sign away some of their rights.

But anyway OP, your situation is much different than your friend's regardless.

[Brother Hesekiel 2,236]

While entering with a non-immigrant visa, such as a B2, with the intent to get married is against the rules, the Adjudicator's Field Manual explicitly states that intent alone is not sufficient to deny an AOS application.

In addition, somebody who is in the US as a J1 basically lives here, whereas a B2 only takes a vacation. A "temporary" resident like an J1 does things any permanent resident would do, including going out and dating. Hence, you are 100% safe!

What your friend experienced is different. Apparently, the CBP Officer assumed immigration intent. Somehow, the foreigner must have been pulled into secondary inspection (check that!); otherwise I cannot conceive anybody to sign that they wouldn't want to get married. I assume that's when the foreigner's statement was entered into the record and I wouldn't be surprised if the passport was stamped as well with something like "No AOS!"

While doing AOS, the I.O. was apparently accessing this record. While the foreigner has stated in writing the he or she had no intention to getting married and file for AOS, they did this nonetheless. Hence, a case of misrepresentation could be made which is what the I.O. apparently did.

Again, this scenario is so far remote from your own, you really don't have to worry about anything.

[sdchargers 0]

Hi everyone,

Thanks for your replies! Our friend came to the US on the visa waiver program from France. Unfortunately, I'm pretty sure she overstayed that visa and additionally, she had to go through secondary inspection I believe at the place of arrival.

My wife came into the US on a J1 visa for an internship, we were already dating when she applied for the J1 Visa but she entered the US to do and complete that internship. When she entered, she just filled out the document on the plane where you basically have to answer no to all questions. My wife didn't overstay her J1 either.

[Harpa Timsah 13,258]

If your friend lives in California, and especially if s/he went through San Diego office, then the overstay on VWP is enough to do it. That office has sent out a memo that all VWP overstayers who AOS MUST be denied at interview. If your friend also signed a sworn statement that s/he was not planning on immigrating at POE, then yikes...

Your situation, however, is totally different, and your AOS is perfectly legal and totally different from your friend's.

Don't worry, unless it is in sympathy for your friend.

[Brother Hesekiel 2,236]

I have a friend who got married to a US citizen while on a tourist visa.

A tourist visa is a B2

Our friend came to the US on the visa waiver program from France. Unfortunately, I'm pretty sure she overstayed that visa and additionally, she had to go through secondary inspection I believe at the place of arrival.

Boy, do I fell bullsh*tted!

In post 1 it's a tourist visa; in post 2 it's no visa at all plus overstay plus secondary.

Not even the Allmighty could give proper advice under such conditions.

[sdchargers 0]

A tourist visa is a B2

Boy, do I fell bullsh*tted!

In post 1 it's a tourist visa; in post 2 it's no visa at all plus overstay plus secondary.

Not even the Allmighty could give proper advice under such conditions.

My bad! Yes she entered on the VWP. Until earlier this afternoon, I wasn't even aware of the difference between the visa waiver and tourist visa, I thought both terms were synonymous! I thought overstays were forgiven for marriage based AOS, but it's true adding up all the negative factors it's pretty difficult to approve their case.

On a different note, what are the main factors to consider when adjusting from J1 to AOS, other than 2 year requirements in order to have a clean case?

[Harpa Timsah 13,258]

Aww Bob, you had a good guess! lol

OP- to answer your last question... I would say...have a real marriage and not have a criminal record (esp the immigrant). But really, calm down. You're doing the proper thing for your situation.

[newlyweds2010 208]

yeah, no worries, nothing compares to an expired VWP adjusting status in San Diego. I don't know why they would make your friend sign a declaration that she did not intend to get married in the US, since simply marrying in the US (and then leaving) is totally legal. Maybe she just signed the I-94W (if she came here before august, because now that form does not exist anymore) where she waived any claim or appeal in front of an immigration judge. But then again you never know what happens in secondary inspection, they might as well have made her sign such a paper.

Anyway, you can find quite a number of threads about the new trend when it comes to VWP adjusting status. your situation is totally different.

[LoveMyMiky 35]

My bad! Yes she entered on the VWP. Until earlier this afternoon, I wasn't even aware of the difference between the visa waiver and tourist visa, I thought both terms were synonymous! I thought overstays were forgiven for marriage based AOS, but it's true adding up all the negative factors it's pretty difficult to approve their case.

On a different note, what are the main factors to consider when adjusting from J1 to AOS, other than 2 year requirements in order to have a clean case?

The I-94W VWP Entry Form stipulates that a VISA cannot be obtained while in the US on a Visa Waiver. Even if your friend’s wife did not overstay her visa she would be denied.

I know this as I spent 45 minutes being interrogated at the airport when my fiancée arrived a second time in the US on a Visa Waiver after being back in Korea for only 45 days. At the time I thought the biggest issue would be defending that no where does it state a time period required between visits on the program. However, found this to be subjective and totally up to the officer to allow or deny entry. What they were really interested in is if she had the intent to get married or work while on the waiver.

I had previously talked to US Immigration and they was told that we could get married on a visitors visa, what they didn't tell me was that the VWP was not a Visa, that it is what it says "Visa Waiver"!

During the interrogation I was lucky my fiancée was allowed entry, she claimed she could not speak English that's why they chose me to question, and I did not give them any indication I was ready to get married, and thank God we didn't while she was here.

As for you, you should be fine as your wife actually has a Visa.

[Harpa Timsah 13,258]

The I-94W VWP Entry Form stipulates that a VISA cannot be obtained while in the US on a Visa Waiver. Even if your friend’s wife did not overstay her visa she would be denied.

Just to be clear for future readers, the above quoted is not correct. There was a precedent court case (if someone wants to name which one, I'd be obliged) that states that if someone on VWP sends in an AOS packet for adjudication before the 90 days authorized stay is up, then the officers CAN adjudicate the petition as they would normally. If that petition gets denied, then they have no recourse for appeals, but many are approved.

[LoveMyMiky 35]

Just to be clear for future readers, the above quoted is not correct. There was a precedent court case (if someone wants to name which one, I'd be obliged) that states that if someone on VWP sends in an AOS packet for adjudication before the 90 days authorized stay is up, then the officers CAN adjudicate the petition as they would normally. If that petition gets denied, then they have no recourse for appeals, but many are approved.

Guess I should have said risks the possibility of being denied. The magic word is "CAN" that does not mean will or obliged. From what I have experienced with the system, this is a mess that one has little control over and risks extreme stress and money with no certainty of a positive outcome.