Please Advise

[amp009 0]

I am an Australian Citizen. I am here in US on 90 day visa waiver program; I will be getting married to a US Citizen here in US. Can she start my process of Green Card while i am in US or would i have to go back to Australia and wait there.

Thank you

[Penguin_ie 5,997]

***** Moving from AOS from Family... to AOS from Tourist visa forum as OP came in on VWP *****

If you did not plan on immigrating when you arrived, your spouse can just file Adjustment of Status for you; you will need to be able to prove that you had no immigrant intent though. The safest thing would be to file for a CR-1 spousal visa; your spouse can send off the petition as soon as you are married, then you leave the USA when your 90 days on the visa waiver are up and wait for the interview in your country. You can still visit on the visa waiver during the process.

[Myopia 93]

I am an Australian Citizen. I am here in US on 90 day visa waiver program; I will be getting married to a US Citizen here in US. Can she start my process of Green Card while i am in US or would i have to go back to Australia and wait there.

Thank you

Yes you can but you would have to file all the paperwork, complete the medical and make sure it was done properly and get it filed and accepted before the last day of your authorized stay in the US. This means you would have to make sure the packet was complete by at least the 60th day of your stay(To be safe) to allow for problems with the mail etc.

I believe you will be told that USCIS will have to prove that you planned to immigrate to marry rather than you prove that you didnt.

I have to reemphasize..you have to get this filed and accepted before the 90th day of your stay to be safe as Visa Waiver Overstay adjustments are problematic now in the USA.

Which state are you in?

[amp009 0]

Yes you can but you would have to file all the paperwork, complete the medical and make sure it was done properly and get it filed and accepted before the last day of your authorized stay in the US. This means you would have to make sure the packet was complete by at least the 60th day of your stay(To be safe) to allow for problems with the mail etc.

I believe you will be told that USCIS will have to prove that you planned to immigrate to marry rather than you prove that you didnt.

I have to reemphasize..you have to get this filed and accepted before the 90th day of your stay to be safe as Visa Waiver Overstay adjustments are problematic now in the USA.

Which state are you in?

I am in California.

[Harpa Timsah 13,258]

I am in California.

Eek! If you cannot get your paperwork accepted before your 90 days are up, then go home and file from there. If you have already overstayed a few days, then leave before you accrue 180 days of overstay and therefore an automatic ban. If it has not been 90 days and you did not intend to immigrate when you entered, then you can file, as long as you get your paperwork initially accepted before the 90 days are over (this can take a week or more from when the package actually gets there.

Read what is happening in CA: http://www.visajourney.com/forums/topic/292498-i-485-denied/

[amp009 0]

Eek! If you cannot get your paperwork accepted before your 90 days are up, then go home and file from there. If you have already overstayed a few days, then leave before you accrue 180 days of overstay and therefore an automatic ban. If it has not been 90 days and you did not intend to immigrate when you entered, then you can file, as long as you get your paperwork initially accepted before the 90 days are over (this can take a week or more from when the package actually gets there.

Read what is happening in CA: http://www.visajourney.com/forums/topic/292498-i-485-denied/

i have only been here 2 weeks. We got married in court like the 2nd day i came to US and all the paper work is ready did that back in Australia. Now all i have to do is send it in along with marriage certificate and all the other stuff. i was just looking for advice that once they do accept my application i don't want to go back to Australia and wait for processing i rather stay here in US while i go through processing to get a Green Card.

Thank you for your replies.

[Harpa Timsah 13,258]

Hmm, well if you did all the paperwork back in Australia before you even got here, then it sounds like you had very clear intent to immigrate on a non-immigrant visa, and that is visa fraud. If you lied at the border, you could be denied for material misrepresentation. Good luck to you.

Edited January 28, 2011 by Harpa Timsah

[Myopia 93]

i have only been here 2 weeks. We got married in court like the 2nd day i came to US and all the paper work is ready did that back in Australia. Now all i have to do is send it in along with marriage certificate and all the other stuff. i was just looking for advice that once they do accept my application i don't want to go back to Australia and wait for processing i rather stay here in US while i go through processing to get a Green Card.

Thank you for your replies.

You may have a problem proving that you didnt use the Visa Waiver Program to immigrate to the USA.

30-60-90 rule

Generally most wait and "spontaneously" decide to get married. You got married on day 2. You were still jet lagged when you went to get your license. This is a problem.

You also did all the paperwork already so its fairly obvious you knew you were going to try to circumvent the immigration rules.

I live in a glass house so Im not trying to throw stones. Just letting you know what it looks like.

I believe the best course of action would be to enjoy your honeymoon here in the USA and go back to Australia and file the CR1 Visa.

I know you dont want to hear that and you will probably speak to a lawyer who will say he can help you after asking for a nice deposit but its not looking good.

What did the Immigration ask you when you came through immigration? And what did you respond?

It just looks fishy.

Edited January 28, 2011 by Myopia

[Myopia 93]

I couldnt edit. You started this topic 11 hours ago. So is this Day 2 for you?

[Brother Hesekiel 2,236]

When using the WVP in order to arrive in the US without a visa, you waived any right of due process. What that means is that if the Immigration Officer denies your petition, you have no way of fighting it and if you're out of status by then -- which you definitely will be by the time your petition is adjudicated -- you're pretty much on your way home to Kangarooland. The I.O. may also conclude that you misrepresented your intend when arriving at the US as a tourist, yet getting married hours ago with all preparations already taken care of in Australia. While it's possible that you can adjust status without as much as a hiccup, it's also possible that you can't, and return home with an entry of misrepresentation, which actually may be seen as material misrepresentation, because had you told the immigration people that you wanted to travel to the US in order to get married and stay, they wouldn't have admitted you, making this a material fact. Bad idea.

[juliava 80]

I vote for CR-1 route too.

[Kathryn41 3,205]

Basically, by entering the US on the VWP with the intent of getting married, you denied yourself the opportunity of legally remaining in the US to adjust your status to permanent resident. If, while in the US, you decided on the spur of the moment to get married you are then allowed to apply to adjust your status to permanent resident - as long as you can complete all of the steps necessary to file the AOS and have it received before the 90 day VWP ends. Having prepared the paperwork before you left Australia and having got married 2 days after arriving in the US it is highly unlikely that any USCIS officer would believe your decision was 'spontaneous'. It is considered visa fraud to enter the US on a visa issued for one purpose (visitor) with the intention of using it for another purpose (immigration). You are allowed to enter the US with the intention of getting married but you are not allowed to remain in the US for the immigration process. Your wife will need to submit the I-130 application (she can do that now and start the process rolling) and you will need to return to Australia to complete the process. Be sure to return before the VWP time allowed to you expires as you do not want to accrue any overstay. If you do accrue any overstay you will not be allowed to use the VWP again.

I know it is frustrating to be here already and be in the position to remain, but unfortunately immigration is very strict about having the correct visa for the appropriate purpose. You could well be found guilty of 'misrepresentation' by trying to adjust status from a visitor status with your particular circumstances. The penalty for misrepresentation can range from deportation to a life time ban upon ever being allowed to return to the US.

So, enjoy your visit here in the US; go on a honeymoon; start the CR-1 process - and be sure to return home to Australia before the 90 day period is up so you can complete the proper immigration process correctly and not have to worry about a lifetime of immigration woes once the visa is approved.

Good luck.

[JimVaPhuong 4,863]

Agree with the others. The primary factor you have to overcome is intent.

US immigration law allows for an immediate relative of a US citizen to adjust status while in the United States. This is an exception to the immigrant visa process, and not simply an alternative to it. A non-immigrant entry pass requires that the alien does not intend to immigrate at the time they enter. The exception that allows them to adjust status was designed for situations where the circumstances changed after the alien entered the US, and where it would be needlessly bureaucratic to require the alien to return to their home country and obtain an immigrant visa.

Normally, USCIS doesn't use "preconceived intent" to deny adjustment of status for an immediate relative of a US citizen. The rules change dramatically when the immigrant entered using the Visa Waiver Program. In this case, the immigration officer is judge, jury, and executioner. You waived any right to appeal their decision or have it reviewed.

Just out of curiosity, was there a blue TSA card in your luggage after you arrived?

[trillium13 84]

OP, you need to decide which would be worse for you-a few months separation from your wife, or a complete ban from the US. This is the risk you're taking here.

[trillium13 84]

Just out of curiosity, was there a blue TSA card in your luggage after you arrived?

What is this?