Filing AOS although being on VWP?

[WhoaIsa 0]

Hey everybody!

I'm completely confused by all this immigration laws for the Marriage-Based Green Card.

My husband is in the US Army, we got married in November 2010. I entered the US in early October to visit him, a marriage was not planned at the time I entered the States with the Visa Waiver Program.

After we got married, we wanted to file the i-130, as well as the AOS form but we didn't have the money for it. I left the US in early January (no overstay on VWP!) due to family reasons and came back in the last week of January, again on the VWP which is still valid til April 25. Now we finally have the money to send all the forms but my concerns are, that it might be too late and that I have to leave the country in late April. My husband is currently at a pre-deployment training out of state, so I can't send my application forms since he can't sign them and I don't have copies of his documents. He will deploy with his unit in July to the Middle East and someone told me that, if we have his orders, we can expedite the process of me staying legally in this country. I know that the best and easiest way for staying legal would be to leave the US and apply for a spouse visa. But since he deploys soon, we want to spend as much time together as we possibly can.

So my question is: Is it still okay and early enough if we file all the forms when he is back from his pre-deployment training and will I still be legal in the US after we sent the forms but my VW expired on April 25?

I hope that someone can answer my questions, thank you very much in advance

[amykathleen2005 441]

You have enough time to file AOS, but you would have to work fast. They also might wonder what your intent was in coming back in January. As he is military and going to be deployed you could qualify for an expedite.

IMHO, if you are looking for sympathy about not being able to spend time with your husband before he deploys (which you state is your reason for AOS under VWP and not a spousal visa) you are in the wrong place as many couples on here cannot see their significant other for similar long periods of time.

Edited March 24, 2011 by amykathleen2005

[Anh map 2,098]

*Moved from Adjustment of Status - Family Based Visa to Adjustment of Status - Work, Student, Tourist forum*

The potential problem in your plan is that you entered on a non-immigrant visa (VWP) with immigrant intent. Get good, solid advice before filing your petition.

[Inky 1,111]

1. Keep opsec in mind at all times when posting information about military things!

2. Expediting right before hes leaving so you can spend time together is a big hurry up and wait effect. We expedited ours due to deployment, I got to USA and married and then he was gone for almost a year. I sat in the US in base housing alone not knowing much about the area or many people. It was pretty crappy! I would of rather stayed working in my home country then moved with more saved up money. Military spouses are gone A LOT so long distance relationship is the norm and constant.

3. VWP AOS is very risky, they are closing the ability to adjust status on it. Do a search on VWP AOS here on VJ there are quite a few sad storys of it.

[WhoaIsa 0]

Thank you so much for your answer. We will definitely talk to an immigration lawyer once my husband is back from his pre-deployment training.

Another thing I'm wondering about is: If I go back to my homecountry (Germany), does anyone know how long it would take to get a K3-visa with expedition due to deployment? I think I've read somewhere where it only took a month to get it instead of 3 or more.

[Little_My 464]

K-3 visas don't exist anymore. If you were in Germany, I think you would go for the CR-1 route.. but, I don't know how his deployment affects this. I've understood that things are usually expedited for military spouses.. maybe someone here knows more about that.

Just one question - when you entered under VWP in January, when you were already married, were you asked about your reason for coming to the US at POE? If so, what did you answer? If you won't be adjusting while in the US under VWP, this probably wouldn't be an issue.. but, you did enter the US under VWP while married to a USC, which might not be a good thing.. as long as you did not lie when coming in.

[Myopia 93]

3. VWP AOS is very risky, they are closing the ability to adjust status on it. Do a search on VWP AOS here on VJ there are quite a few sad storys of it.

Not any more. The USCIS retain jurisdiction to adjust VWP adjustments regardless of overstay.

New change

Edited March 24, 2011 by Myopia

[WhoaIsa 0]

Not any more. The USCIS retain jurisdiction to adjust VWP adjustments regardless of overstay.

New change

So that means I wouldn't take any risk by adjusting my status although on VWP? I'm sorry if this is a dumb question, I'm just completely lost in all the official language stuff. I also don't know if it makes a difference in which city and state I am right now (Ft Hood, TX).

I mean, I don't overstay yet but I want to make sure that I don't get into custody while having the interview and then get deported right away cause I read a lot about that stuff.

Of course, we will also consult a lawyer once he is back from his pre-deployment training

[WhoaIsa 0]

K-3 visas don't exist anymore. If you were in Germany, I think you would go for the CR-1 route.. but, I don't know how his deployment affects this. I've understood that things are usually expedited for military spouses.. maybe someone here knows more about that.

Just one question - when you entered under VWP in January, when you were already married, were you asked about your reason for coming to the US at POE? If so, what did you answer? If you won't be adjusting while in the US under VWP, this probably wouldn't be an issue.. but, you did enter the US under VWP while married to a USC, which might not be a good thing.. as long as you did not lie when coming in.

I came back here for a surgery appointment I have. That's what I also told the immigration officer, however, which was probably my mistake, I didn't mention to him the fact that I was married to a USC

[Little_My 464]

It shouldn't be a problem, as long as you didn't point blank lie to the IO when entering.. for example, answering "No" to a question " Do you haev immediate family members living in the US" or "Are you married". If you weren't asked about those, and you answered honestly to the questions that were presented, you didn't do anything wrong.

As for adjusting status from VWP.. well. I might me wrong about this, but though it does currently seem like AOS from VWP is getting easier for people who have overstayed on their VWP, that doesn't really apply to you since you don't have a problem with overstay. Your problem would be to convince USCIS and the IO eventually interviewing you, that you did not enter the United States in January with the intent to immigrate. You would have to convince them that originally you came for just a visit, had every intention of leaving before your VWP expires, but due to xxx circumstances you two ended up deciding to file for AOS. I don't know how easy it would be to sell this to USCIS, since you were in fact married to a USC already, entered under VWP as a spouse of an American, and then filed AOS when in the US. VWP is not meant for that, and it might rise some red flags.

In my opinion, safer option would be for you to return to your home country and go for the CR-1 route.

[Myopia 93]

So that means I wouldn't take any risk by adjusting my status although on VWP? I'm sorry if this is a dumb question, I'm just completely lost in all the official language stuff. I also don't know if it makes a difference in which city and state I am right now (Ft Hood, TX).

I mean, I don't overstay yet but I want to make sure that I don't get into custody while having the interview and then get deported right away cause I read a lot about that stuff.

Of course, we will also consult a lawyer once he is back from his pre-deployment training

As long as you did not intend to adjust your status using the Visa Waiver Program, then you are allowed to adjust your status in country. You may be asked questions about intent but as long as you tell the truth; that you came for a medical reason and due to your husbands imminent deployment decided to adjust status then you should be alright.

The only thing that may seem weird is that you came in October 2010 and stayed until the end of your 90 days and then came back within a few weeks.You said you didn't have the money to adjust the first time and obviously by the second visit you did. It does look like you came back in order to adjust using the VWP, so make sure you have letters from the doctors to prove that your second visit was for medical purposes rather than to adjust.

I would definitely speak to a lawyer about this to ease your mind.

Remember if your AOS is denied , then you have to recourse to appeal.

Take Care.

[Myopia 93]

I don't know how easy it would be to sell this to USCIS, since you were in fact married to a USC already, entered under VWP as a spouse of an American, and then filed AOS when in the US. VWP is not meant for that, and it might rise some red flags.

The thing is it is allowed to travel to the US if you are married to a USC, using the Visa waiver program, already being married. It is allowed to file AOS in the US. What is not allowed is bringing all your belongings and pretending that its going to be a visit when you know you intend to adjust status. I think the CR1 route is less fraught with stress. Adjusting in country relies on the discretion of USCIS's desire to allow you to adjust.

[JimVaPhuong 4,863]

Not any more. The USCIS retain jurisdiction to adjust VWP adjustments regardless of overstay.

New change

Please be careful with this advice. The only thing that is known to have changed is that USCIS field offices that were previously putting AOS applications for VWP overstays on hold have now been adjudicating them, so jurisdiction was apparently in question there. The USCIS field offices that were denying AOS to VWP overstays were not doing so for lack of jurisdiction. None of the circuit court decisions on which those denials were based implied that the denials were required because of lack of jurisdiction.

Remember that if they had no jurisdiction to approve then they would also have no jurisdiction to deny. Lack of jurisdiction means no authority to issue a decision of any kind, and that's not what field offices like San Diego have been doing.

Please wait until it's clear what ALL field offices are doing before issuing sweeping advice. We still haven't seen the memo. We've only heard about from some attorneys, and seen the effect it's had on offices like New Jersey. The OP is still in a window of time where she can make a decision either way without any undue harmful consequences.

[WhoaIsa 0]

Thank you sooo much for your answers.

I'd rather go the less stressful way too, I've read a lot about the CR1 procedure lately and I'm more than lost . So, if we file the I-130 now, as well as the I-129F and I leave the country before my VW expires, is it possible for me to come back once I have everything approved and got my DS-156?

And is it necessary for me to go to my home country or can I apply for the DS-156 in another country? In my case, my dad is living in Panamá and since I have to leave the country, I would go and live with him for the time I have to wait for all the documents. Now, obviously, I'm not a citizen of Panamá, do you think that would be a problem?

Oh god, I'm really sorry for all my questions and for maybe being annoying. I'm just so overwhelmed with the situation and due to the pre-deployment training, the army doesn't allow my husband to have contact with me, so he has absolutely no idea about our situation yet

[Myopia 93]

Please be careful with this advice.................

Anyone who read my advice would have clicked the link and read that thread. I am sure they they would see that this issue is a fluid one and Im certain the OP would not have made her decision based on that alone.

She can have the facts and use them but someone stated that

VWP AOS is very risky, they are closing the ability to adjust status on it. Do a search on VWP AOS here on VJ there are quite a few sad storys of it.

and this simply is not true anymore.

USCIS have said that they retain jurisdiction now. You know this.

The Solicitor general has said that USCIS retain jurisdiction. You know this.

AILA liaison with USCIS were the first to report this. You know this.

Who says that what San Diego office was doing, was right in the first place? You're assuming that they were. They were using their discretion to deny and that is what they did. There was no USCIS memo that directed them to deny all VWP overstays. They did this on their own behest. You know this.

Since when does one district office make policy for all USCIS offices?

Headquarters make policy.

Headquarters have sent a memo to all district offices and so far based on what the AILA (Not some small internet start up), and 6 other anedotal references have said, there is a clarification on whether USCIS can ajust overstays on the Visa Waiver Program.

The clarification is that they can adjust with no problems in the same way as they can adjust those VWP applicants that file within the 90 days.

Of course San Diego can choose to use their discretion and deny all VWP overstay adjustments, regardless of what their HQ says, but government doesn't tend to work this way.

As to the precise wording? We do not know this.

So you can wait for the imminent memo ,which I'm sure once you see it, you will say that the memo is a preeminent memo to some other impending memo that has nothing to do with the imminent memo that you constantly referred to in previous posts.

For me, I will direct posters to the new information and allow them to make their own decision as is evident with the OP.

As always Visa Waiver Program Adjustments are discretionary and can always be denied. If that happens there is no appeal.

Thanks for the nudge.

Edited March 24, 2011 by Myopia