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

[MrsP2010 20]

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.

I know of two people who, after marrying within the VWP 90 days but filing during the subsequent overstay, filed paperwork within a month of each other at the end of Summer 2010. The one who filed in May got interviewed soon after and given a green card, the other didn't get an interview until December and then got denied.

Their situations were almost identical, their filing addresses were both San Diego. As someone who knows a person going through a I-485 denial and probable removal order, I would advise anyone against this route now.

[coraliesolms 47]

I would advise against trying to adjust from VWP. By all means, come over, get married, but then leave and file for a CR-1. It may be a longer process, but it will save you many a sleepless night down the road (although there are still a few of those anyway).

Good luck with whatever path you choose though.

[pushbrk 13,112]

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.

Generally the above is untrue but the bold definitely is. Intent to marry is not illegal. It's the combination of intent to marry AND to stay and adjust status based on that marriage that COULD be considered Visa Fraud. However, as long as you don't tell any lies upon entry and file the AOS before your 90 days are up, all is well. The part of the above that IS true is the second bold section.

[pushbrk 13,112]

I know of two people who, after marrying within the VWP 90 days but filing during the subsequent overstay, filed paperwork within a month of each other at the end of Summer 2010. The one who filed in May got interviewed soon after and given a green card, the other didn't get an interview until December and then got denied.

Their situations were almost identical, their filing addresses were both San Diego. As someone who knows a person going through a I-485 denial and probable removal order, I would advise anyone against this route now.

San Diego is the place where most of the new problems with AOS from the VWP have originated. Those problems have not yet fully propagated to other areas of the country but could with no notice. As stated, those problems were with cases where the AOS was file AFTER 90 days from entry on the VWP. Still no issue with filing WITHIN 90 days of entry.

[RichiJenny 14]

I overstayed on the vwp by more than 180 days, but less than a year. so i incurred a 3 year bar. it was waived with an i601 extreme hardship statement.

however, the feeling i got from the CO's at the us embassy was quite a negative one for vwp overstayers. i wont go into it publically in detail, suffice to say - i wouldnt have overstayed had i knew as much then as i do now.

[pushbrk 13,112]

I overstayed on the vwp by more than 180 days, but less than a year. so i incurred a 3 year bar. it was waived with an i601 extreme hardship statement.

however, the feeling i got from the CO's at the us embassy was quite a negative one for vwp overstayers. i wont go into it publically in detail, suffice to say - i wouldnt have overstayed had i knew as much then as i do now.

Yours was a visa case, not an adjustment of status. You might as well be comparing apples and houses, not even apples and oranges.

[RichiJenny 14]

i was actually inferring to - the fact that i didnt adjust status, or even attempt to when i arrived on the vwp. im glad that i didnt attempt to either.

[Brother Hesekiel 2,236]

You are dealing with 2 issues.

1) If AOS is denied, there will be overstay.

If the overstay is less than 180 days (unlikely), then no bar will be triggered.

However, even an overstay of only 1 day would prevent your wife from using the VWP again. She would have to apply for a B2 visa just in order to come over to visit you, which would be denied.

If overstay reaches 180 days, an I-601 waiver will be needed, for obvious reasons.

2) If AOS is denied, it's very likely that the I.O. will on the spot order your wife "deported." That carries another bar, and requires another waiver, the I-212.

Therefore, if your wife's overstay is less than 180 days until now, get her on a plane home and file for a CR-1.

[tooduhri 0]

what upsets me is that "some" laywers recommend this route. because of people who work around the system, those of us who do things the right way usually have to wait forever.

[Darnell 8,479]

*** not a IR-1/CR-1 visa topic - moving to AOS/tourist forum ***

Edited January 24, 2011 by Darnell