Please Advise

[Inky 1,111]

What is this?

They put thos in after they went through all your bags. Basically says they looked at your stuff messed it up and they are not liable for anything missing or broken.

[amp009 0]

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.

At the border they did not ask me anything. And yes, i did come because my intent was to migrate to US because my brother along with my mother lives in California. My brother is a citizen and mother is a permanent resident. My spouse's parents are family friends for decades and that is the reason a my mom had ask me few months back if i would consider marrying. We got married so quick because we did not want to waste anytime and atleast get married on paper; traditional marriage is suppose to happen in April this year.

And i much appreciate to hear all of you guys opinion; thank you very much for help. Not to offend anyone or disrespect anyone here in the forum, but yes i was going to hire a lawyer regardless; i have an appointment next week Thursday with a lawyer and money is not a issue. But if i do have to go back i don't have any problem going back to Australia either and wait its just i wanted to stay here with family and not really go back.

Thank you all, i will keep you guys updated what the lawyer has to say....

thanks once agian.

[amp009 0]

i was just thinking yes i prepared the paperwork in australia but i don't have to show that to immigration. but i got married like 2nd or 3rd day here lol it would sound fishy well its my fault should've done my research before coming here.

Edited January 29, 2011 by amp009

[HeatDeath 430]

You can stay in the US for the 90 days the VWP allows you. Overstaying by one day will prevent you from ever using the VWP again - any subsequent visits to the US would require a proper visa: visitor's or, as is more likely in your case, spousal. Overstaying between 2 and 179 days carries no additional consequences. Overstaying by 180 days will trigger a 3 year ban on reentering the US, and overstaying by a year or more will trigger a 10 year ban on reentering the US.

Bear in mind that, if you go for a CR-1 visa, your next entry to the US will be using that visa, so the permanent ban on using the VWP will be somewhat irrelevant to you. Without advising you to breach the terms of the VWP, I can honestly point out that the consequences of an overstay between 1 and 179 days, for someone going through the CR-1 process, are minimal in real terms.

Now that you are married, your USC wife can start the petition process for a CR-1 visa. While you will need to arrange for someone reliable in Australia to be picking up your mail, so that you will know immediately when the US consulate in Australia sends you the Packet 3 visa application (assuming Australia still sends out paper Packet 3's - many consulates are all electronic now), and you will have to return to Australia for the consulate interview, you should be able to stay in the US for a significant fraction of the processing time for the CR-1.

It is worth repeating that you MUST be out of the US NO LATER than VWP expiry + 179 days. The VWP requires you to leave before day 90, and whether or not you choose to violate those terms is up to you (and certainly no one here will advise you to do so), but VWP expiry + 180 is the day serious consequences for overstaying - consequences that will screw up any visa process badly - kick in.

I realize that the CR-1 process, and it's required eventual return to Australia for the consulate interview is a major pain, but it is far far safer than trying to adjust status on VWP in California, having married only 2 days after entry.

[NigeriaorBust 4,087]

What is this?

When they inspect your luggage ( checked in stuff) without you there they put a little blue card in it to disclose that they opened it. If they went through your luggage and noted you were bringing what appears to be a " I am moving to the US" mess of stuff they could use that against you later.

[amp009 0]

i should've followed the 30-60-90 day rule. What you guys think?

[HeatDeath 430]

i should've followed the 30-60-90 day rule. What you guys think?

Actually no. That's the whole problem. As a result of recent court decisions, AOSing from VWP has become a very ugly Catch-22:

If you don't follow the 30-60-90 day rule, your AOS is very risky, and may very well be denied on the grounds of material misrepresentation - you represented to CBP that you were planning to leave when you in fact were planning to stay, marry, and AOS.

On the other hand, If you follow the 30-60-90 day rule with the VWP in California, and try to AOS during the overstay period after your VWP stay has expired, you just completely and utterly automatically hose yourself, with no chance of appeal or rebuttal. If a VWP entrant files AOS after 90 days, it will get automatically denied in many Circuit Court districts, including and especially [they were among the first to start doing this] California, in many cases triggering automatic removal proceedings with, again, no chance of appeal.

That's why, in the last several months, AOSing from VWP, no matter where you happen to be in the US, has gone from a very doable slight technical bending of the rules, to an an incredibly risky complete non-starter of a strategy.

The worst part is the people who've been caught in the middle of this policy change - who came on VWP, overstayed thinking that the consequences would be minor or nill, and now find that not only can they not AOS without risking triggering removal proceedings, they can't even fix the situation, because they've now overstayed long enough to trigger a 3 year or 10 year bar [which would have been forgiven had the AOS been approved.]

This is why the best advice for anyone in the US on a VWP who has married a USC is to, for the love of all that is Holy, get out of the US before your VWP expiry date + 180 days! Doing that, and filing for a CR-1 visa, is now the only safe and reliable way to salvage that situation.

Edited January 29, 2011 by HeatDeath

[Myopia 93]

i should've followed the 30-60-90 day rule. What you guys think?

It doesn't matter what you should have done. You are here,married and you need to consider the realities of the situation that you are in.

You can go to that expensive lawyer and he will tell you that you can adjust status and he may prepare and file your already prepared paperwork. You will most likely get an approval for your I-130 because you really are married but you will have a serious problem with the I-485.

Did you even know or met your wife before you came?

Read this and you will get the gist of where you are better.

Can I get married on a tourist visa?

You can overcome the presumption of intent but you know(and we know) that you planned to come to the US specifically to get married. Thats a no no.

Anyways go and see the lawyer and see what he says. At the end of the day whats done is done so may as well keep it moving.

Ps. Enjoy your honeymoon!

[Myopia 93]

Actually no. That's the whole problem. As a result of recent court decisions, AOSing from VWP has become a very ugly Catch-22:

If you don't follow the 30-60-90 day rule, your AOS is very risky, and may very well be denied on the grounds of material misrepresentation - you represented to CBP that you were planning to leave when you in fact were planning to stay, marry, and AOS.

On the other hand, If you follow the 30-60-90 day rule with the VWP in California, and try to AOS during the overstay period after your VWP stay has expired, you just completely and utterly automatically hose yourself, with no chance of appeal or rebuttal. If a VWP entrant files AOS after 90 days, it will get automatically denied in many Circuit Court districts, including and especially [they were among the first to start doing this] California, in many cases triggering automatic removal proceedings with, again, no chance of appeal.

That's why, in the last several months, AOSing from VWP, no matter where you happen to be in the US, has gone from a very doable slight technical bending of the rules, to an an incredibly risky complete non-starter of a strategy.

The worst part is the people who've been caught in the middle of this policy change - who came on VWP, overstayed thinking that the consequences would be minor or nill, and now find that not only can they not AOS without risking triggering removal proceedings, they can't even fix the situation, because they've now overstayed long enough to trigger a 3 year or 10 year bar [which would have been forgiven had the AOS been approved.]

That's not altogether true. You can adjust status on a VISA WAIVER throughout the USA as long as you are within that 90 days. All the districts agree with this. The courts that have spoken on this have specified that the ability to adjust depends on being within that 90 day period. There is the additional issue of whether filing within the 90 days is all that is needed or is there a need for the case to actually be completed by the 90th day.

He isnt out of status yet so I think mentioning these issues may just confuse him more than he already is.

OP--You can adjust but you will have to overcome the presumption of intent.

[HeatDeath 430]

OP--You can adjust but you will have to overcome the presumption of intent.

Which is going to be staggeringly difficult and arguably fraudulent, since the cold hard fact of the matter is that that presumption is entirely correct - the OP did have intent.

[JimVaPhuong 4,863]

OP--You can adjust but you will have to overcome the presumption of intent.

Yep, this is why I specifically asked if there was a TSA blue slip in their luggage. Still haven't heard an answer on that one...

[Myopia 93]

Which is going to be staggeringly difficult and arguably fraudulent, since the cold hard fact of the matter is that that presumption is entirely correct - the OP did have intent.

Agreed.

[amp009 0]

@JimVaPhuong-- i did not see any slip in my baggage.

@myopia-- I have came to the US couple of times before as my brother and mother lives here. My spouse family is friends with my parents thats how i met her about a year ago and my fault without doing any research i decided to come here and just get married. Well, lets see what the lawyer has to say and you are right that he is very expensive charging me (250US$)for just consulting but money is not an issue if he can get the job done. I am sure going to ask him about issues with the i-485 later on. i appreciate your comments..

i am thinking just go back to Australia and be safe. Any ideas how long would it take for the processing?

thanks

[JimVaPhuong 4,863]

@JimVaPhuong-- i did not see any slip in my baggage.

Ok. The reason I asked is because TSA frequently rummages through luggage looking for contraband. This has happened to my bags every time I've returned from Vietnam, and about half the time when I travel within the US. Maybe something I pack in my bags triggers the x-ray machines. Dunno. They usually have the courtesy to drop a blue card into your luggage letting you know why you're clothes are no longer neatly folded.

Anyway, if TSA sees a bag loaded with suspicious stuff then they might call CBP over to inspect the bag. Suspicious stuff might include a folder full of immigration documents, or a box of wedding invitations, etc.

If the visitor is entering with a visa then they might ask some pointed questions at the immigration counter about intent; e.g., "Do you plan to apply for a green card while you're in the US?". This is a set-up. If the visitor says "No", and then later applies for adjustment of status after getting married then USCIS has them for material misrepresentation - they have evidence of preconceived intent, and the visitor's statement that they did not have any preconceived intent. In other words, they've got proof the visitor lied to an immigration officer when they said they didn't intend to immigrate.

If the visitor is entering using the VWP then it's not necessary to ask questions about intent. They don't need a material misrepresentation to deny their AOS. The evidence of preconceived intent alone is enough. They can use any negative factor because nobody will have jurisdiction to review the decision. The immigration officer has the final word.

If you had known TSA inspected your bags then I would have strongly advised you don't attempt to adjust status. You wouldn't know for certain that TSA had actually informed CBP about the contents of your bag, but you'd know it was possible. The possibility alone is too much of a risk.

i am thinking just go back to Australia and be safe. Any ideas how long would it take for the processing?

According to Igor's list, the service centers are currently running between 130 and 180 days to approve the I-130. The Embassy in Australia is running about 130 days between the approval of the I-130 and the interview. So you're probably looking at between 260 and 310 days, or between 8 1/2 and 10 months.

[katgrl 14]

Oooohhhh laaaaa....I would not adjust status. You run several risks entering on the VWP as it is and try to circumvent immigration rules. And you have specifically said you did have intent. Everyone here has given you excellent advice. Certainly the choice is yours, but would be much more advisable to go CR1 and leave when 90 days is up.