Adjustment of Status on Visa Waiver Program (Unique Situation?)

[Boiler 45,948]

It also sounds a straightforward adjustment.

Like I said, talk to a lawyer.

[mof 15]

Very dangerous, after the marriage and leaving the USA, you should have file an I-130 for a spouse visa.

Do not attempt to AOS from VWP after entry to the USA already married, this is clear violation of the VWP, being married prior to entry shows strong immigrations intent,...

I wouldn't be too sure about this! I have entered the US with VWP more than 200 times (no, that's not a typo) while being married to a USC. No I-130 had been filed, either.

Not a single IO has ever questioned my intent. As a matter of fact, in all those years, I only had one IO ask me what I did for a living - and that is the ONLY question I have ever been asked when entering under VWP while being married. Most IO's have simply waived me through, some didn't even bother to stamp my passport. I need to add that I have always entered the US with my wife and, later on, with my USC child as well.

Edited February 25, 2011 by mof

[Harsh_77 718]

My vote would be favoring most ppl on here, file for your CR1 which is i-130 and she should return back home, complete the process and then enter US back again as CR1 holder.

Which is much cleaner process, more favourable in eyes of immigration - means you never violated any terms and conditions of any of your prior visas or VWP.

You guys would have to seperated for few months but..... that would be hassle free immigration.

[Myopia 93]

There is no 'proper' way.

People's prejudices are more evident in these threads than anything else.

Ironically I came on the Visa Waiver Program and overstayed poised to file my AOS packet so I am the last person that you could infer is prejudiced.

There is a proper channel and that normally is through the K1 and CR1 Visas,

USCIS has allowed people like me (at times) to adjust to LPR and that has always been a discretionary decision. If Im denied then Im out. Thats my reality. I would never encourage anyone to go through this process. It's nerve wracking, and scary. I have to worry if I get denied what will happen to my kids who are settled here and really don't want to leave.

If they want to send their application in within the 90 days then of course it is a different story. The OP's wife came several times using the VWP so she knew that it was a non immigrant visa. That was one of the factors that the USCIS saw as unfavorable in the Bradley Case. He had came to the US several times using the VWP and they felt that he just abused it. Forget that he overstayed, missed two appointments etc.

USCIS adapt to the situation and understand that some things change but would I have done this again? No way.

Edited February 25, 2011 by Myopia

[Boiler 45,948]

The OP has plenty of opinions, and a couple of options.

So now down to you.

[KLS2010 30]

I am in the same situation as your wife ( I am the Australian citizen). I just returned to Australia after spending three months with my husband (entered on VWP also).

We also considered applying for AOS but in the end decided against it for the reasons that most on here are telling you. Yes it is POSSIBLE that you could successfully AOS - there was a recent post here on VJ where that was the case. However, there is also a BIG CHANCE that you wont be approved..in which case (in my understanding) your wife will be deported and will be subject to a ban on re-entry to the US.

In the end YOU AND YOUR WIFE have to way up the pros and cons... yes the wait is unbearable at times if you decide to go CR-1, but do you want to take the RISK that you may not get your AOS approved?

Whichever way you choose to go... I wish you both the best of luck!!

[Boiler 45,948]

How do you work out the big chance?.

What percentage would you put on it?

[KLS2010 30]

How do you work out the big chance?.

What percentage would you put on it?

Just my opinion based on what I have read.

[mof 15]

How do you work out the big chance?.

What percentage would you put on it?

Basically, if you entered on VWP, got married, and then file for AOS within the 90 days, you are running a risk of getting rejected - or so rumor has it.

I, at least, have not heard of any actual cases where such rejections took place if the marriage was shown to be bona fide - but there certainly is a lot of talk about this issue, mainly because there is no set ruling to determine the outcome. Rather, the decision to grant permanent residency is left up to the IO. If he/she denies the application, the VWP entrant has no legal recourse. What I've garnered from various sources is that taking this express path is a big NO-NO. You can get married while on VWP, but you should NOT file for AOS while still here on the original entry permit.

Getting married and subsequently re-entering the US may be a problem for some - but I have personally done so in excess of 200 times and never had a problem. However, as I stated above, I ALWAYS entered with my USC wife/child and never by myself!

If you entered on VWP, got married, and file AFTER the 90 days - you will most certainly face rejection in the majority of jurisdictions. There is no legal recourse. Some jurisdictions may or may not grant an overstay AOS.

If you have legitimate(!) and compelling(!) reasons to file for AOS while here under VWP, the adjudicator will likely grant your request. USCIS does provide this option for a reason. However, it is quite questionable what those legitimate and compelling reasons may be. Listing such reasons can be interpreted as conspiracy to commit fraud and thus, nobody will state what they know or think they know. Basically, if you have legitimate and compelling reasons, you'll know it and don't have to do any research on the matter - it's that simple.

I would think that USCIS makes sure that trying to adjust from VWP does not turn into the often-cited express path to a green card. Reasons to apply under these conditions must be absolutely compelling - and I have a feeling that having just gotten married and not wanting to be separated from your spouse is not reason enough. In addition to those compelling reasons, there also should not be any intent to immigrate when the VWP entrant arrives in the US - which can be very difficult to prove if the IO suspects that there was intent all along.

At any rate, since there is no legal recourse, trying to AOS from VWP is seen as a gamble. I don't think anybody can give you a break-down of percentages when it comes to denials - there are simply too many factors involved and a large number of those factors are not quantifiable but rather, discretionary. Nobody can see into the head of the particular adjudicator working your case. If you try to AOS from VWP, you need to be prepared that you might be denied and that there may be a ban.

[Boiler 45,948]

Life is a gamble.

So is flying back and forth, at least 2 long flights.

I can post links to planes that have crashed but I would have a very hard time finding a negative link for this sort of situation.