Alien Married to USC, in the USA under VWP

[David W. Desguez 0]

Hi everyone,

So here's the situation. I'm French and married since a little bit more than two month now with the most beautiful woman. The wedding happened in France, where we were together for the Christmas holidays. We went back to the US on january 20th. I, since then, live with my wife in the Phoenix Area. Without a K-3 visa, I entered the US territory under the Visa Waiver Program. We sent on february 15th the I-130 form, with G-325A for both of us and a lot of documents to prove our new marital situation. We received two days letter the I-797C saying that the I-130 "has been received and is in process." They issued me a receipt number and a priority date (february 17, 2011). Since then, we're waiting. The problem I'm facing is that I will have to go back to France before April 20th (VWP max 90 days). I was concerned that leaving the USA will jeopardize the process of my form I-130.

So we went to our nearest USCISs Office (Phoenix) to ask some questions. The main one was : "Does being 'in process' by the California Service Center allow me to extended my stay more then 90 days." The answer was no. They told us to fill the I-485 to register for Permanent Residence (with another G-325A), a I-765 for Employment Authorization and for my wife an Affidavit of Support. (I also intend on filling the form I-131 for Travel.) As soon as this 'package' will be sent to USCIS Chicago, the employee at the Phoenix USCIS Office told me that I will be able to stay in the USA during that process (but also not able to leave, until 6 month to one year.) A condition that was fine with me since I intend on living and staying with my wife here, in the USA.

So I didn't have any problem to fill the I-485 as "a spouse of a USC with approved or concurrently filed I-130" except part 3 : Nonimmigrant Visa Number, Date Visa Issued. This is my main concern. I don't have any visa (I do not have my K-3 yet), I don't have any number and nobody ever delivered me a I-94 form when I landed in Newark. The US Immigration Officer inspected me (for almost 2 hours...) but did not give me any form. So I filled everything with N/A, stating that I'm here under the VWP. Is that a problem? Except that part, everything went fine.

Now, for the I-765, my concern is my category of eligibility. There's nothing about someone under Visa Waiver Program. There's a category for someone married to a USC but it is under "K-3 Visa" which I don't have. Kind of confused here. I was thinking to go with this one and then I realize that all of this is, of course, a lot of money. I don't want to mess this up.

I guess my question is : Is it ok to send this 'package' before even getting a Visa?

Kindly,

David

Edited March 26, 2011 by David W. Desguez

[amykathleen2005 441]

A VWP is effectively a visa without the visa part. You are able to adjust from that status. However, you seem to have come to the US with the intent on staying, which is a big no no.

[Brother Hesekiel 2,236]

David.

You were not supposed to enter the USA without a visa with the intent to adjust status to a resident. For that purpose the CR-1 visa was created.

Then you made the second mistake: instead of filing the I-130, the I-485 and the I-765 concurrently, you didn't. This may turn out to be a blessing in disguise.

Here is my main concern: since the CBP officer inspected you for 2 hours, as you stated, tell me what questions you were asked regarding your stay. Your answer will be paramount for the advice you'll receive.

Edited March 26, 2011 by Just Bob

[pushbrk 13,027]

A VWP is effectively a visa without the visa part. You are able to adjust from that status. However, you seem to have come to the US with the intent on staying, which is a big no no.

Doesn't appear that way to me at all. He came in with the intention of leaving within 90 days, then started wondering if there was a way to extend his stay legally. They went to a USCIS office and asked about an extension but were told no. This is the same office that will approve or disapprove the status adjustment, so I would believe them when they advised him to adjust status. It should be successful but no guarantee and no appeal.

[pushbrk 13,027]

Hi everyone,

So here's the situation. I'm French and married since a little bit more than two month now with the most beautiful woman. The wedding happened in France, where we were together for the Christmas holidays. We went back to the US on january 20th. I, since then, live with my wife in the Phoenix Area. Without a K-3 visa, I entered the US territory under the Visa Waiver Program. We sent on february 15th the I-130 form, with G-325A for both of us and a lot of documents to prove our new marital situation. We received two days letter the I-797C saying that the I-130 "has been received and is in process." They issued me a receipt number and a priority date (february 17, 2011). Since then, we're waiting. The problem I'm facing is that I will have to go back to France before April 20th (VWP max 90 days). I was concerned that leaving the USA will jeopardize the process of my form I-130.

So we went to our nearest USCISs Office (Phoenix) to ask some questions. The main one was : "Does being 'in process' by the California Service Center allow me to extended my stay more then 90 days." The answer was no. They told us to fill the I-485 to register for Permanent Residence (with another G-325A), a I-765 for Employment Authorization and for my wife an Affidavit of Support. (I also intend on filling the form I-131 for Travel.) As soon as this 'package' will be sent to USCIS Chicago, the employee at the Phoenix USCIS Office told me that I will be able to stay in the USA during that process (but also not able to leave, until 6 month to one year.) A condition that was fine with me since I intend on living and staying with my wife here, in the USA.

So I didn't have any problem to fill the I-485 as "a spouse of a USC with approved or concurrently filed I-130" except part 3 : Nonimmigrant Visa Number, Date Visa Issued. This is my main concern. I don't have any visa (I do not have my K-3 yet), I don't have any number and nobody ever delivered me a I-94 form when I landed in Newark. The US Immigration Officer inspected me (for almost 2 hours...) but did not give me any form. So I filled everything with N/A, stating that I'm here under the VWP. Is that a problem? Except that part, everything went fine.

Now, for the I-765, my concern is my category of eligibility. There's nothing about someone under Visa Waiver Program. There's a category for someone married to a USC but it is under "K-3 Visa" which I don't have. Kind of confused here. I was thinking to go with this one and then I realize that all of this is, of course, a lot of money. I don't want to mess this up.

I guess my question is : Is it ok to send this 'package' before even getting a Visa?

Kindly,

David

The bold above is the kicker in this whole scenario. If you told the truth and there are no notations in your passport, you're probably OK. You didn't enter with the intent to stay. You changed your mind about staying when you were told by USCIS you couldn't extend but COULD adjust status. You're not allowed to enter on the VWP with immigrant intent but you ARE allowed to change your mind and intent AFTER entry. It's a fine line. Walk it carefully.

[amykathleen2005 441]

Doesn't appear that way to me at all. He came in with the intention of leaving within 90 days, then started wondering if there was a way to extend his stay legally. They went to a USCIS office and asked about an extension but were told no. This is the same office that will approve or disapprove the status adjustment, so I would believe them when they advised him to adjust status. It should be successful but no guarantee and no appeal.

He said "since then I live with my wife" which to me does not sound like a friendly visit, it sounds like coming to stay.

[David W. Desguez 0]

Everyone, thanks for your fast answers!

However, you seem to have come to the US with the intent on staying, which is a big no no.

He said "since then I live with my wife" which to me does not sound like a friendly visit, it sounds like coming to stay

The reason for my presence here, in the USA, is to be with my wife, since we just got married. I did not planned on staying here when I bought my tickets. I will not say that it is a friendly visit, it's more than that. I do have a roundtrip ticket and my departure ticket is schedule for april 18th, 2 days before the 90 days limit. The Immigration Officer in Newark, where I landed, had a hard time believing my words. He asked me what I've done during my last sejour in the USA (septembre to november 2010, roadtriping the west coast with my now wife), he asked me the reason of my come back, I said that we just got married in France and that I'm here to spend some time with my wife. I do live with her right now, because, well she's my wife and we spend time together, visiting her family, going to San Diego for Spring Break (she's a PhD student). I never thought about "cheating" the system. I came here with the idea of going back to France. And stated that!

What we did is : "Why not start the long process of immigration right now since I'm here." Was it a bad idea? We sent that I-130 and only this one, FOLLOWING the indications of USCIS employee in Phoenix after our first appointment there (early february.) A very kind woman, who never warned us about my situation. I did mention this situation (married to a USC + here under VWP) and they gave us the I-130 form to send. I'm very surprised reading your answers about the fact that my situation, basically, does not allow me to fill any paperwork!

The bold above is the kicker in this whole scenario. If you told the truth and there are no notations in your passport, you're probably OK. You didn't enter with the intent to stay. You changed your mind about staying when you were told by USCIS you couldn't extend but COULD adjust status. You're not allowed to enter on the VWP with immigrant intent but you ARE allowed to change your mind and intent AFTER entry. It's a fine line. Walk it carefully.

I am telling the truth. I'm not here illegally and I DO NOT want to do this wrong. And I realize now, as you say, how fine is the line. I have no notation on my passport. In my mind there was never a intention of "extending" my stay. We did start some immigration paperwork since nobody at the USCIS warned us about the fact that it is not possible. So we started the process, sadly as you say Just Bob, apparently not in a good way. I do not want to jeopardize the start of this, that's why we went, a second time, to ask about the possibilities I have. "If I go back to France, what about the interview?", "I enter the adress of my wife's apartment, where I'm staying during my sejour, if I go back, do we have to change the adress?". I showed my I-797C to the USCIS employee in Phoenix and he told me to photocopy this letter and send it with my passport stamp (january 20 / april 20) and all the other forms. And the fees... I met with an official doctor, got all my vaccins and my sealed enveloppe. Should I stop everything? Am I sending forms and fees against a big wall of bricks?

I'm very confused!

Thanks again!

[amykathleen2005 441]

You are welcome to file CR-1 paperwork while in the US and go back home for the interview (or when you have to cause your VWP expires). The problem comes is when you want to adjust status while you are already in the US (which you filed for by sending the I-485). Typically arriving on a VWP is not a great way to adjust status, as they could get your on intent as well as you have no appeals process.

[pushbrk 13,027]

You are welcome to file CR-1 paperwork while in the US and go back home for the interview (or when you have to cause your VWP expires). The problem comes is when you want to adjust status while you are already in the US (which you filed for by sending the I-485). Typically arriving on a VWP is not a great way to adjust status, as they could get your on intent as well as you have no appeals process.

It's a fine line but not illegal. He MUST file the I-485 BEFORE the 90 day visit is expired.

To the OP, you have a lot to consider but no need to waste any of your effort worrying about any sour grapes coming from those who did NOT for whatever reason have this option available to them. The option of adjusting status at this point IS a viable one for you but it is a fine line you're walking and you MUST stay until the process is complete. Leaving will effectively abandon the adjustment process and leave you only with the spouse visa route. Be aware that if your adjustment is denied, there is no appeal for those who entered on the VWP.

One further note with regard to filing the I-485 before the 90 days is up. It used to be that you could wait as long as you wanted to file, with no issues. However, last Summer, USCIS local offices in Southern California began denying cases when the application was filed AFTER the 90 days. This practice has spread sporadically to other offices but has been inconsistent. It may have stopped or may stop in the future but for right now, it's critical you file before the 90 day visit expires. By "file" I mean have your filing acknowledged with an early enough receipt date, so file as early as possible.

[Brother Hesekiel 2,236]

David,

adjusting status from VWP is a viable option as long as you do not occur overstay. I asked about your POE experience, because CBP is known for setting people up. Whenever you are questioned, it's called "secondary inspection." There is usually a report for this in your file. So if the CBP officer asked you specifically if you plan on staying and adjusting status, and you answered "no" to this but do it now nonetheless, they have you by your balls for "material misrepresentation" which carries a lifetime bar from the United States. So if you go over your time at the POE again in your mind and you did not make any statements that could potentially hurt you, you should be fine.

Edited March 27, 2011 by Just Bob

[amykathleen2005 441]

It's a fine line but not illegal. He MUST file the I-485 BEFORE the 90 day visit is expired.

To the OP, you have a lot to consider but no need to waste any of your effort worrying about any sour grapes coming from those who did NOT for whatever reason have this option available to them. The option of adjusting status at this point IS a viable one for you but it is a fine line you're walking and you MUST stay until the process is complete. Leaving will effectively abandon the adjustment process and leave you only with the spouse visa route. Be aware that if your adjustment is denied, there is no appeal for those who entered on the VWP.

Didn't I just say they exact same thing. Filing VWP is a way, and a viable way, but not necessarily the safest way to AOS. I don't see how you consider that sour grapes.....

[pushbrk 13,027]

David,

adjusting status from VWP is a viable option as long as you do not occur overstay. I asked about your POE experience, because CBP is known for setting people up. Whenever you are questioned, it's called "secondary inspection." There is usually a report for this in your file. So if the CBP officer asked you specifically if you plan on staying and adjusting status, and you answered "no" to this but do it now nonetheless, they have you by your balls for "material misrepresentation" which carries a lifetime bar from the United States. So if you go over your time at the POE again in your mind and you did not make any statements that could potentially hurt you, you should be fine.

No, they don't have him by anything for misrepresentation. He truthfully stated his intent and the intent truthfully changed. Only lying to the CBP officer would be misrepresentation. Changing plans, intent or priority does not change a truth to a lie. The questions and answers were in the present tense.

I would agree that the fact he had an extensive secondary inspection adds risk to the process but based on his answers, not the risk of a misrepresentation finding.

Edited March 27, 2011 by pushbrk

[Darnell 8,479]

*** not a K-3 visa question - moving to IR-1/CR-1 visa forum, for now ***

[Brother Hesekiel 2,236]

No, they don't have him by anything for misrepresentation. He truthfully stated his intent and the intent truthfully changed. Only lying to the CBP officer would be misrepresentation. Changing plans, intent or priority does not change a truth to a lie. The questions and answers were in the present tense.

I would agree that the fact he had an extensive secondary inspection adds risk to the process but based on his answers, not the risk of a misrepresentation finding.

You are wired for visa entries. However, the VWP explicitly excludes any due process, any appeal, any anything. Thus the I.O. is the prosecutor, the judge and the petitioner in one body. If he doesn't like the shirt the beneficiary wears, he'll say: I am finding you guilty of misrepresentation and thus I am hereby denying your AOS petition. I furthermore hereby order you deported. SECURITY . . . take the Frenchman in custody and transport him to a detention center.

That would end his American Dream for the next 1000 years, and there's nothing in heaven or hell he or the Missus could do about it.

End of story, and it ain't pretty.

Somebody who entered with a visa doesn't have this problem. Hence, the VWP is inherently problematic, even without overstay.

[pushbrk 13,027]

You are wired for visa entries. However, the VWP explicitly excludes any due process, any appeal, any anything. Thus the I.O. is the prosecutor, the judge and the petitioner in one body. If he doesn't like the shirt the beneficiary wears, he'll say: I am finding you guilty of misrepresentation and thus I am hereby denying your AOS petition. I furthermore hereby order you deported. SECURITY . . . take the Frenchman in custody and transport him to a detention center.

That would end his American Dream for the next 1000 years, and there's nothing in heaven or hell he or the Missus could do about it.

End of story, and it ain't pretty.

Somebody who entered with a visa doesn't have this problem. Hence, the VWP is inherently problematic, even without overstay.

All true, yet people in his exact situation adjust status successfully every day. Adult issues require adult decisions.