Is it possible to apply for a green card while on Visa Waiver?

[skynaut 29]

Hey guys,

I have found this form http://www.uscis.gov.../i-485instr.pdf

It is a form to register permanent residence or adjustment of status.

And an interesting thing I saw there. They list options who may apply and who may not and on page 2, section K they write:

Who is not eligible to adjust status:

K. "You are admitted to the United States 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)"

So I wonder: can you actually get married in the USA on visa waiver and then as a spouse stay there and apply for green card there w/o leaving? Could someone explain? Thanks

[Rebecca Jo 1,962]

If you want to learn more about this, there's an entire forum here called "Adjustment of Status from Work, Student, & Tourist Visas" that contains hundreds of threads about the topic.

[canadian_wife 1,822]

From what I read, that means if you enter under the WVP you CANNOT adjust status by yourself, you MUST adjust status as an immediate relative of a US citizen.

As in, you cannot arrive in the US without immediate family here and try to adjust status alone

Good luck

[Rebecca Jo 1,962]

From what I read, that means if you enter under the WVP you CANNOT adjust status by yourself, you MUST adjust status as an immediate relative of a US citizen.

As in, you cannot arrive in the US without immediate family here and try to adjust status alone

Good luck

Yes, that's exactly what it means.

[skynaut 29]

So this is what I meant: Can you adjust your status as an immediate relative of USC when you arrive on VWP? I mean is it really possible and is it really worth it?

Edited January 22, 2011 by skynaut

[Val and Gary 29]

Hey guys,

I have found this form http://www.uscis.gov.../i-485instr.pdf

It is a form to register permanent residence or adjustment of status.

And an interesting thing I saw there. They list options who may apply and who may not and on page 2, section K they write:

Who is not eligible to adjust status:

K. "You are admitted to the United States 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)"

So I wonder: can you actually get married in the USA on visa waiver and then as a spouse stay there and apply for green card there w/o leaving? Could someone explain? Thanks

Hi Skynaut,

I looked into this. It is a bit of a minefield at the moment. It used to be very possible to do this, but, apparently not any more. Firstly, it is illegal to come into the USA on VWP with intent to marry. It is seen as visa fraud and carries a large ban. However, it IS legal to enter on VWP, and just meet someone, and then marry. In other words, you have to prove no intent. In the past, states have turned a big blind eye to this, but not any more. What is worse, is when a person overstays on the VWP, marries and then attempts to adjust status. Once again, in the past, the overstay was forgiven, and AOS was approved in most cases. Now though, in a lot of states, the AOS application is a license for the US government to deport the applicant as they are illegal. I think that may carry a long, or lifetime ban. Yes, some people get away with it, but from what I can gather, especially now, it is fraught with problems. There is no appeal system on VWP - you waive all rights to appeal, and a lawyer won't help. I preferred to do it the correct way. Imagine the stress of being in the USA, marrying, applying for AOS, and then being deported for visa fraud or overstay. In my opinion, it is not worth it. There are many many articles about this recently, and though it may have been easy a few years ago, it certainly isn't now.

Edited January 22, 2011 by Val and Gary

[skynaut 29]

Hi Skynaut,

I looked into this. It is a bit of a minefield at the moment. It used to be very possible to do this, but, apparently not any more. Firstly, it is illegal to come into the USA on VWP with intent to marry. It is seen as visa fraud and carries a large ban. However, it IS legal to enter on VWP, and just meet someone, and then marry. In other words, you have to prove no intent. In the past, states have turned a big blind eye to this, but not any more. What is worse, is when a person overstays on the VWP, marries and then attempts to adjust status. Once again, in the past, the overstay was forgiven, and AOS was approved in most cases. Now though, in a lot of states, the AOS application is a license for the US government to deport the applicant as they are illegal. I think that may carry a long, or lifetime ban. Yes, some people get away with it, but from what I can gather, especially now, it is fraught with problems. There is no appeal system on VWP - you waive all rights to appeal, and a lawyer won't help. I preferred to do it the correct way. Imagine the stress of being in the USA, marrying, applying for AOS, and then being deported for visa fraud or overstay. In my opinion, it is not worth it. There are many many articles about this recently, and though it may have been easy a few years ago, it certainly isn't now.

Thanks, i agree with you. That's why we are doing it the correct way.

But what if you, let's say, come on VWP, get married and apply for AOS when 90 days are not over yet? And of course till you hear the final decision, your 90 days will be over, so in this case, is it considered overstay or not? hehe just curious!

[Val and Gary 29]

Thanks, i agree with you. That's why we are doing it the correct way.

But what if you, let's say, come on VWP, get married and apply for AOS when 90 days are not over yet? And of course till you hear the final decision, your 90 days will be over, so in this case, is it considered overstay or not? hehe just curious!

No, once you have applied, you're not in overstay as you have an AOS pending. In fact, when it was safer, people recommended doing this pretty late in the period so as not to show intent to marry. It's a pretty fine line from what I gather, and possibly even more stressful than what we are going through. There's a real chance you could be separated from your loved one for a very, very long time if it goes wrong, and the US government is apparently getting tougher on this.

Edited January 22, 2011 by Val and Gary

[skynaut 29]

No, once you have applied, you're not in overstay as you have an AOS pending. In fact, people recommend doing this pretty late in the period so as not to show intent to marry. It's a pretty fine line from what I gather, and possibly even more stressful than what we are going through. There's a real chance you could be separated from your loved one for a very, very long time if it goes wrong, and the US government is apparently getting tougher on this.

So are you saying that if someone on VWP applies for AOS before their 90 days is over and let's say after 3 months after their 90 days are over they receive a negative answer, this is not gonna be considered as overstay? Did I understand you correctly? So the person can just leave US and it is all legal and nice? No fraud? hehe

[Rebecca Jo 1,962]

Hi Skynaut,

I looked into this. It is a bit of a minefield at the moment. It used to be very possible to do this, but, apparently not any more. Firstly, it is illegal to come into the USA on VWP with intent to marry. It is seen as visa fraud and carries a large ban. However, it IS legal to enter on VWP, and just meet someone, and then marry. In other words, you have to prove no intent. In the past, states have turned a big blind eye to this, but not any more. What is worse, is when a person overstays on the VWP, marries and then attempts to adjust status. Once again, in the past, the overstay was forgiven, and AOS was approved in most cases. Now though, in a lot of states, the AOS application is a license for the US government to deport the applicant as they are illegal. I think that may carry a long, or lifetime ban. Yes, some people get away with it, but from what I can gather, especially now, it is fraught with problems. There is no appeal system on VWP - you waive all rights to appeal, and a lawyer won't help. I preferred to do it the correct way. Imagine the stress of being in the USA, marrying, applying for AOS, and then being deported for visa fraud or overstay. In my opinion, it is not worth it. There are many many articles about this recently, and though it may have been easy a few years ago, it certainly isn't now.

There's bits in here that are right and then bits that are incorrect.

First of all, the States don't have anything to do with immigration. That's a Federal matter and it's the Immigration and Nationality Act (INA) that contains all the law about immigration, including the way to become a permanent resident.

Secondly, it's never illegal to enter on the VWP with intent to marry. What's illegal is entry on the VWP with intent to adjust your status from "visitor" to "permanent resident". So you can come over and get married. You just can't file the paperwork to stay.

So, this is the part of the law where the Service was previously turning a blind eye, as you call it. And actually, they still don't deny adjustments based on this presumption. There is numerous case law which has established that intent to live permanently in the US as the spouse of a USC is not reason enough to deny the adjustment.

You are also correct that if you enter on the VWP and try to adjust and that adjustment is denied, then there is no process for appeal. The landing card you sign before you board the plane contains this language in the fine print. This is the part of the law that is getting people "deported" if the adjustment is denied (these persons are actually given the choice of a voluntary removal).

Where the law is being tightened now is a couple of areas. First of all, VWP is supposed to be for short term stay. Secondly, if someone enters on the VWP and stays beyond that 90 day stay, they have no real legal status after that ninety days. The language used by laypeople on forums is "overstayer". Once a person files for adjustment of status, they are protected from removal from the US by virtue of that pending petition.

Here is where the catch is - if the VWP entrant accrues time between the end of their legally authorized stay (90 days) and the date USCIS accepts their I485 for adjudication, the Service (in certain districts) is using that time in between to deny the case. In essence, they are using the overstay against the alien. Which they have every right to do.

[Rebecca Jo 1,962]

So are you saying that if someone on VWP applies for AOS before their 90 days is over and let's say after 3 months after their 90 days are over they receive a negative answer, this is not gonna be considered as overstay? Did I understand you correctly? So the person can just leave US and it is all legal and nice? No fraud? hehe

It is not that easy.

If a case is denied, the Service will take into account the number of days from the end of the authorized stay till the date the case is denied. It's more complicated than it sounds. Google "how is overstay accrued in US immigration". Some experts refer to this a the "clock ticking".

[Val and Gary 29]

There's bits in here that are right and then bits that are incorrect.

First of all, the States don't have anything to do with immigration. That's a Federal matter and it's the Immigration and Nationality Act (INA) that contains all the law about immigration, including the way to become a permanent resident.

Secondly, it's never illegal to enter on the VWP with intent to marry. What's illegal is entry on the VWP with intent to adjust your status from "visitor" to "permanent resident". So you can come over and get married. You just can't file the paperwork to stay.

So, this is the part of the law where the Service was previously turning a blind eye, as you call it. And actually, they still don't deny adjustments based on this presumption. There is numerous case law which has established that intent to live permanently in the US as the spouse of a USC is not reason enough to deny the adjustment.

You are also correct that if you enter on the VWP and try to adjust and that adjustment is denied, then there is no process for appeal. The landing card you sign before you board the plane contains this language in the fine print. This is the part of the law that is getting people "deported" if the adjustment is denied (these persons are actually given the choice of a voluntary removal).

Where the law is being tightened now is a couple of areas. First of all, VWP is supposed to be for short term stay. Secondly, if someone enters on the VWP and stays beyond that 90 day stay, they have no real legal status after that ninety days. The language used by laypeople on forums is "overstayer". Once a person files for adjustment of status, they are protected from removal from the US by virtue of that pending petition.

Here is where the catch is - if the VWP entrant accrues time between the end of their legally authorized stay (90 days) and the date USCIS accepts their I485 for adjudication, the Service (in certain districts) is using that time in between to deny the case. In essence, they are using the overstay against the alien. Which they have every right to do.

Thanks for making a better case of it than I did!! I knew what I meant! Honest!

[skynaut 29]

So basically if they approve you, you are lucky, if not - they will count how many days you overstayed and then kick you out with a ban, correct?

[Val and Gary 29]

So basically if they approve you, you are lucky, if not - they will count how many days you overstayed and then kick you out with a ban, correct?

That seems the way of it Skynaut, and the ban will be determined by the length of overstay.

And it seems the odds of being lucky are decreasing.

Edited January 22, 2011 by Val and Gary

[skynaut 29]

That seems the way of it Skynaut, and the ban will be determined by the length of overstay.

And it seems the odds of being lucky are decreasing.

Ok, i get it now hehe I thought there should be something tricky about this, otherwise many people would just go there on VWP, get married and stay. I thought maybe we missed our chance hehe but not! It is better to be on the safe side, although it takes for ever!