RFE - legal presence in US (Visa Waiver)

[mof 15]

Hello All - I submitted my I-485 along with an I-130 on Nov. 23. My wife and I have been married for five years, we have a child, etc. etc.

I received a receipt shortly thereafter followed by a Biometrix appointment (to which I went). The receipt notice states that my application was received Nov. 26.

We entered the US on Sept. 24 and I filed well before my legal presence in the US expired. Today, I received a RFE stating that I need to submit "Evidence of Lawful Admission to the US," such as an I-94. At first glance, this seems like an easy request to meet. However, I entered the US under the VWP and hence, did not receive an I-94 (since VWP visitors are now processed electronically). Additionally, I entered with my wife and daughter (both USC) and I guess the IO simply forgot to stamp my passport. Thus, I have no evidence that I can submit at this point - no I-94 and no entry stamp. I do have a copy of my approved ESTA form and I do have all my flight information.

I also have an older entry stamp in my passport that allowed me to stay in the US until Nov. 24 - one day AFTER I filed for Adjustment of Status (but prior to the official "date received" as noted on the receipt notice.

I would think that USCIS could simply verify my arrival date via the CBP database - but they obviously haven't done so.

So, what evidence do I submit? Do I schedule an INFOPASS?

Thank you for your help - I had no idea this whole process could be so intense.

Edited January 4, 2011 by mof

[amykathleen2005 441]

So you entered the US, left, and came back again in the span of 90 days and then you adjusted your status without intent to stay?

Edited January 4, 2011 by amykathleen2005

[mof 15]

So you entered the US, left, and came back again in the span of 90 days and then you adjusted your status without intent to stay?

Hm, my wife, child, and I have lived in Central America for the past eight years (a few months shy of eight years). We fly internationally roughly 40 times a year and pass through the US often (30+ times a year)- as Miami functions as a major hub for travel to and from Central America. On occasion, we visit my wife's family, who live in Miami.

Sometimes, there is only a week between various arrivals at a US port of entry - but my presence in the US is usually limited to a week or two and sometimes is only while in transit. I never stayed for 90 days nor did I have any intention to live here. When I entered the US the last time (before entering and filing for adjustment of status) we were in transit from Europe to Central America and decided to visit my wife's family for a week. Then we left. When we came back to the US in September, I was actually booked to fly onwards to the Bahamas but my wife had had enough of traveling and asked if I would be willing to stay in the US. Obviously, I am not willing to desert my wife and toddler, so what choice did I have other than file for adjustment of status? Risk my wife's happiness? Have my baby be without her father for a year or so? It took my wife roughly two months to convince me that we should live in the US...that's when I filed.

What is the alternative in the mind of USCIS? Leave my wife and baby to their own devices while waiting for a CR-1 visa? It's not like we got married while I was here under VWP. We lived together in NYC until 2003 (I was in the US with a student visa) and then decided to move to Central America together. We've been married for almost six years and got married in Costa Rica. Our daughter was born there, too. In my mind, there is pretty much no way we could be more legitimate than this. I suppose everyone is a suspect in the eyes of USCIS?

Edited January 4, 2011 by mof

[JimVaPhuong 4,863]

Hm, my wife, child, and I have lived in Central America for the past eight years (a few months shy of eight years). We fly internationally roughly 40 times a year and pass through the US often (30+ times a year)- as Miami functions as a major hub for travel to and from Central America. On occasion, we visit my wife's family, who live in Miami.

Sometimes, there is only a week between various arrivals at a US port of entry - but my presence in the US is usually limited to a week or two and sometimes is only while in transit. I never stayed for 90 days nor did I have any intention to live here. When I entered the US the last time (before entering and filing for adjustment of status) we were in transit from Europe to Central America and decided to visit my wife's family for a week. Then we left. When we came back to the US in September, I was actually booked to fly onwards to the Bahamas but my wife had had enough of traveling and asked if I would be willing to stay in the US. Obviously, I am not willing to desert my wife and toddler, so what choice did I have other than file for adjustment of status? Risk my wife's happiness? Have my baby be without her father for a year or so? It took my wife roughly two months to convince me that we should live in the US...that's when I filed.

What is the alternative in the mind of USCIS? Leave my wife and baby to their own devices while waiting for a CR-1 visa? It's not like we got married while I was here under VWP. We lived together in NYC until 2003 (I was in the US with a student visa) and then decided to move to Central America together. We've been married for almost six years and got married in Costa Rica. Our daughter was born there, too. In my mind, there is pretty much no way we could be more legitimate than this. I suppose everyone is a suspect in the eyes of USCIS?

Intent won't be a problem. Don't worry about it. The only thing you have to worry about is getting denied because you wouldn't be able to appeal the decision. That's the biggest risk with adjusting status after entering on the VWP. If your authorized stay had expired then you'd have much bigger problems.

You could try contacting the CBP office at the airport where you arrived and see if they'll stamp your passport. You can also go to a CBP Deferred Inspection Station and get an I-94W issued and stamped. There's a CBP Deferred Inspection Station at 6601 NW 25 Street in Miami. They're open Monday through Friday, 7 to 3. Their number is (305) 526-2840. If you're not still in Miami then there's a list of Deferred Inspection Stations here:

http://www.cbp.gov/linkhandler/cgov/toolbox/contacts/deferred_inspection/deferred_inspection_sites.ctt/deferred_inspection_sites.pdf

[mof 15]

Intent won't be a problem. Don't worry about it. The only thing you have to worry about is getting denied because you wouldn't be able to appeal the decision. That's the biggest risk with adjusting status after entering on the VWP. If your authorized stay had expired then you'd have much bigger problems.

You could try contacting the CBP office at the airport where you arrived and see if they'll stamp your passport. You can also go to a CBP Deferred Inspection Station and get an I-94W issued and stamped. There's a CBP Deferred Inspection Station at 6601 NW 25 Street in Miami. They're open Monday through Friday, 7 to 3. Their number is (305) 526-2840. If you're not still in Miami then there's a list of Deferred Inspection Stations here:

http://www.cbp.gov/linkhandler/cgov/toolbox/contacts/deferred_inspection/deferred_inspection_sites.ctt/deferred_inspection_sites.pdf

Thank you, Jim! I am just a tad worried (who isn't?) but really, I should be okay. I went over the forms I submitted and noticed that I had accidentally clicked on "I was not inspected upon entry" option. I am sure that is the reason for receiving the RFE. It had to be THAT question where I hit the wrong box!

Alas, we live in Atlanta now and I noticed that there is a Deferred Inspection Station here as well. Do you think it matters where I go?

Edited January 4, 2011 by mof

[JimVaPhuong 4,863]

Thank you, Jim! I am just a tad worried (who isn't?) but really, I should be okay. I went over the forms I submitted and noticed that I had accidentally clicked on "I was not inspected upon entry" option. I am sure that is the reason for receiving the RFE. It had to be THAT question where I hit the wrong box!

Alas, we live in Atlanta now and I noticed that there is a Deferred Inspection Station here as well. Do you think it matters where I go?

It doesn't matter where you go. They all have access to the same computer system.

[olmangsr 0]

That's weird thats you didn't get an I-94.I came a couple of times under vwp using my ESTA but every time I got my I-94W(that's the green one for vwp members)......

[mof 15]

That's weird thats you didn't get an I-94.I came a couple of times under vwp using my ESTA but every time I got my I-94W(that's the green one for vwp members)......

I USED to get them, too. These days, they have phased them out completely and no longer issue them - at least to persons entering under VWP. I do not not if other categories still get them.

This morning, I went to the local Deferred Inspection Station. They confirmed that they actually do NOT have any I-94's and that they can, therefore, no longer issue any. I was told that the passport stamp is sufficient proof that a person has entered the US legally.

After telling them that I had not received a stamp, they verified my information in their database and stamped my passport with an entry stamp showing the original date of entry and a date of expiration. I will now forward a copy of that stamp to USCIS.

[amykathleen2005 441]

You know although this site claims that it does not condone visa fraud it sure as heck encourages it by telling every person who asks that their intent to stay in the US while on a VWP isn't an issue.

The language of ESTA specifically states:

"WARNING: If upon application for admission to the United States at a port of entry you are admitted under the Visa Waiver Program (VWP) by a US Customs and Border Protection Officer, you may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under the program. You may not apply for: 1) a change of nonimmigrant status, 2) an extension of stay, or 3) adjustment of status to temporary or permanent resident, unless eligible under section 245©(4) of the Immigration and Nationality Act. Violation of these terms will subject you to REMOVAL."

It may not be an enforced rule but it is a rule nonetheless.

[Krikit 1,164]

After telling them that I had not received a stamp, they verified my information in their database and stamped my passport with an entry stamp showing the original date of entry and a date of expiration. I will now forward a copy of that stamp to USCIS.

Wow. Looks like you've been able to dodge a bullet. According to the CBP FAQ, they would have seen it as a continuation of the original entry. Congrats.

Additional FAQ: Elimination of paper Departure Form. See last paragraph.

[mof 15]

Wow. Looks like you've been able to dodge a bullet. According to the CBP FAQ, they would have seen it as a continuation of the original entry. Congrats.

Additional FAQ: Elimination of paper Departure Form. See last paragraph.

Not quite - this rule only applies to visits to Canada, Mexico, and the Caribbean. I went to Central America, though.

[mof 15]

You know although this site claims that it does not condone visa fraud it sure as heck encourages it by telling every person who asks that their intent to stay in the US while on a VWP isn't an issue.

The language of ESTA specifically states:

"WARNING: If upon application for admission to the United States at a port of entry you are admitted under the Visa Waiver Program (VWP) by a US Customs and Border Protection Officer, you may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under the program. You may not apply for: 1) a change of nonimmigrant status, 2) an extension of stay, or 3) adjustment of status to temporary or permanent resident, unless eligible under section 245©(4) of the Immigration and Nationality Act. Violation of these terms will subject you to REMOVAL."

It may not be an enforced rule but it is a rule nonetheless.

And yet, the Instructions for form I-485 clearly state in section 10 "Who is NOT eligible to adjust status:" You are not eligible for adjustment of status if any of the following apply to you

K.: You were admitted to the US as a visitor under the Visa Waiver Program, UNLESS you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years of age).

Sorry, amykathleen, but you got this one wrong. Nobody making such statements is condoning immigration fraud - USCIS does actually provide a legal route for VWP visitors to adjust status while in the US.

[amykathleen2005 441]

And yet, the Instructions for form I-485 clearly state in section 10 "Who is NOT eligible to adjust status:" You are not eligible for adjustment of status if any of the following apply to you

K.: You were admitted to the US as a visitor under the Visa Waiver Program, UNLESS you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years of age).

Sorry, amykathleen, but you got this one wrong. Nobody making such statements is condoning immigration fraud - USCIS does actually provide a legal route for VWP visitors to adjust status while in the US.

Well then I'll be sure to advise everyone on the K-1, K-3 and Cr-1 boards not to bother because they can just come in anyways as a tourist whenever they want and just stay.

I know perfectly well that someone on a VWP can adjust and stay. But that is supposed to be when there is truly no intent to stay (and granted there are many cases when this is allowable).

However from these boards I can see that the system can and is hideously abused by those trying to circumvent immigration law by claiming "no intent".

Edited January 4, 2011 by amykathleen2005

[mof 15]

Well then I'll be sure to advise everyone on the K-1, K-3 and Cr-1 boards not to bother because they can just come in anyways as a tourist whenever they want and just stay.

I know perfectly well that someone on a VWP can adjust and stay. But that is supposed to be when there is truly no intent to stay (and granted there are many cases when this is allowable).

However from these boards I can see that the system can and is hideously abused by those trying to circumvent immigration law by claiming "no intent".

I am sure that there is plenty of abuse - and in response USCIS has tightened it's enforcement of existing rules. Therefore, many VWP applicants experience rejection if they overstay their 90 days. However, such enforcement cannot preclude legitimate cases being processed.

I have no idea why you apparently pegged my thread as suggesting that there was intent to stay. I lived legally in the US for 15 years - partially with my current wife. We decided together not to live in the US. However, on our last trip to visit her parents, she decided that she might be interested in living here again. She had to do quite a bit of convincing to do before I consented to the idea, in part because we had made up our minds to stay in Central America (where we all lived quite happily). I know I don't owe you any explanation of my circumstances, but I find your allusions (and I do interpret them as such) to be rather obnoxious.

[Brother Hesekiel 2,236]

Jim gave you superb and most competent advice. It's true that the I-94W is now processed entirely electronically. Saves a lot of trees every year.

I'm glad you were able to get this sorted.

Welcome to the USA!

Edited January 4, 2011 by Just Bob