Adjustment of Status (AOS) while on Visa Waiver Program (VWP) before 90 days

[SurferBoy 0]

Apologize if this has been covered elsewhere, but I have skimmed through much of this forum and most of the discussion is about issues with AOS after the 90 day VWP has passed.

I am a US Citizen and my German girlfriend and I are thinking about getting married. I have known her for 5 years (she was here in SF first on a tourist visa, then a student visa and finally an H1-B that didn't work out so she had to leave - her sponsoring employer did not give her the hours agreed to in the contract. She has not overstayed any visas.) We were not ready to marry before she left last April. I just visited her for a month in Berlin.

We have received different opinions from friends and lawyers about whether she should come to SF immediately on the VWP and then get married after 60 days and then file for an AOS before 90 days OR file for a K-1 Fiance Visa, wait around 5 months for her to get the visa, and then she comes here, we get married within 90 days and then file for an AOS.

I am aware there can be problems if she comes here on the VWP and we get married and then wait until after the 90 days has passed to file for an AOS, but it seems pretty straight forward (unless I am missing something) to send in the I-484 etc right after we get married. However, I have been told that depending on where the interview takes place (probably SF) and who interviews us for the AOS, she could be denied an AOS if the examiner believes she came here on the VWP with the intention of marriage.

On the other hand, we obviously would rather not wait 5+ months for her to get the Fiance Visa.

Thanks for sharing your experiences and opinions!

Edited September 16, 2011 by SurferBoy

[AlinaH 38]

If she comes here on the VWP with the intent to get married and then you try to Adjust Status, then she'll have technically committed Visa Fraud and your application could be denied and I believe, but don't know for sure, that she could have a ban placed on her. I wouldn't risk it! If it worked out so well then everyone from VWP countries would be doing it that way instead of staying apart from their fiances. If it worked out to do that, then I wouldn't have been apart from my fiance for 9 months! Just go about it the proper way.

[ceadsearc 516]

If she's not in the country already, she cannot legally come with the intention to get married AND adjust status. AOS from VWP and tourist visas is for people who did not come with intent to marry and adjust. You have a few options:

- You can file for and wait on a K-1. She can continue to visit on VWP in the meantime as long as she follows the rules of VWP. CBP will be aware of her pending K-1 so she will have to show strong evidence of ties to her home country. In this situation, when she arrives in America you will have 90 days to marry and then you will file for AOS.

- She can come here, get married, you guys file for a CR-1, and she returns to her country within the allotted time period for VWP. Like with the K-1, she can continue to visit on VWP. In this situation, when she arrives in America she will already be a permanent resident.

[Brother Hesekiel 2,236]

You'll get mixed responses to such a question, not because the legal situation is unclear, but because people interpret it from different angles and furthermore because it's a rather emotional issue for many.

It's true: while it's perfectly fine to enter the U.S. as a visitor with the intent to get married, it becomes unlawful if the intent extends to filing for Adjustment of Status (AoS) afterward. That said, intent is something that happens for most part in the head, and while such a thing is difficult to prove, assumed intend alone will not be used to deny an AoS petition. What they would need is some proof that goes beyond the assumption, but I rather not open Pandora's box here and now.

So let's look at the different options in more detail.

1) Your GF enters the U.S with the VW. You guys get married, you'll file the I-130 immediately afterward as it will take about 5 months to be processed. All the while you guys enjoy your honeymoon. Wife returns ideally before her I-94W expires, which is 90 days after entry, but if she overstays, it would only mean that she can't use the VWP anymore. So in theory she could stay until your I-130 has been approved and forwarded to first the National Visa Center (NVC) and then the U.S. consulate in London. As long as she does not overstay for 180 days, no bar is triggered. Once back in the U.K. London will ask her for paperwork, such as birth certificate, marriage certificate, police certificate, and a medical. There will be an interview and afterward she'll receive her CR-1 visa. Within it she enters the U.S as a Green Card holder, gets an I-551 stamp (code for Green Card) in her passport, and can get a driver's license and work from day 1 on.

It's a very smooth process.

2) Since you guys are not married yet, you'll file an I-129 instead of an I-130. Same thingi including London. After the interview she'll get a K-1 (fiance) visa. Takes about a month or so less than the CR-1 route. She enters the U.S. and gets an I-94 that's valid for 90 days. During that period you guys need to get married, thereafter you file for AoS. She can't get a license nor can she work for several months. AOS costs $1,070 alone and there may or may not be another interview. The advantage is that you guys don't have to be apart after the wedding.

3) Your GF enters the U.S. with the VW. You guys get married and file an I-130 and AOS afterward. Like the K-1 route, she can't get a license nor can she work for several months. Here is where the intent comes into play. If you guys don't want to be apart, it would mean that she had to tie up all loose ends in the U-kay: get rid of her flat, her job, her car, her dog and her cat. Enter the U.S. with more luggage than a tourist would have which would include documents a tourist wouldn't carry with them, i.e., a birth certificate. And that's exactly where they can have her by the balls, even as a girl, because if they get suspicious and ask unfavorable questions, and she tells the truth, she'll be send back right then and there. If she lies, they will enter her answers into the database and when she files for AoS, the sh*t will hit the fan which they call material misrepresentation which carries a lifetime ban.

So while people have gotten away with entering the U.S. with a B2 or VW, and filed successfully for AoS after getting married, it's not only illegal but outright dangerous to a point where it can backfire badly. Therefore you will not find anybody here who will suggest that route. Choose between K-1 and CR1, the latter one being my favorite because it's smooth and cheaper as well.

[Lara Lopez 0]

Brother Hesekiel is your CR-1 option rlly possible? the overstay for less than 180 days wouldn't cause me any problem other than not being able to travel on the visa waiver program again?

[ceadsearc 516]

Brother Hesekiel is your CR-1 option rlly possible? the overstay for less than 180 days wouldn't cause me any problem other than not being able to travel on the visa waiver program again?

Overstay of less than 180 days won't affect being able to get a CR-1, since the overstay is not long enough to incur a ban when leaving. As you said, you'd have a hard time traveling on VWP so you probably wouldn't be able to visit while the CR-1 is pending.

[SurferBoy 0]

So my German fiance did come over in October and we were married in SF City Hall (a very lovely location), we had a great honeymoon around Lake Tahoe and she returned to Germany after a couple weeks. I filed the I-130 Petition and received the NOA1 on November 15. After speaking with a couple lawyers and reading the vj forums, this sounded like the best course for us to take.

We had originally thought the entire process until she goes to the interview for the CR-1 Visa would take about 5 months (from the timing estimator on the CIS website). Then I looked into some of vj website information on timing and realized the entire process will likely take twice as long because of the NVC processing time. We are still trying to come to terms with being apart so long. I certainly cannot understand why deciding whether to allow my wife to live here with me requires so much time on the part of the government. I can only imagine our carefully prepared application materials sitting in a huge pile of similar applications, gathering dust.

Unfortunately, I was at a recent Holiday Party and met a couple that had been married 2 years ago. The husband is a US Citizen and he met his Estonian wife (who happens to be less than half his age) in the Ukraine while traveling just over 2 years ago. They fell in love, she came over here on a VW to California to marry him, they applied for an AoS and were approved (LA Service Center). He kept telling me that was the way to go. Trying to feel better, I mentioned that there was no appeal if an AoS filed for a spouse visiting on a VW is denied and the husband insisted that there actually was a way to appeal. Finally I had to re-direct the conversation because I was getting so upset about our situation.

Is it possible that an AoS with the VWP has become much more difficult in the past couple years? I do remember one lawyer saying that an AoS with the VWP used to be easier (and the foreign spouse would often overstay the 90 day VW before the AoS was filed). In the end it doesn't really make any difference but I would appreciate hearing any opinions about how the USCIS may have become more strict with an AoS. Or maybe this couple just got lucky.

[ceadsearc 516]

They were probably lucky. It sounds like they came with intent and presumably lied about it and the IO believed it.

It also has gotten somewhat harder, though. For awhile several areas were denying those on VWP with overstays and at least one still is. Coupled with the "no appeal" aspect, it's not a pretty situation to be in.

[VanessaTony 3,567]

Unfortunately, I was at a recent Holiday Party and met a couple that had been married 2 years ago. The husband is a US Citizen and he met his Estonian wife (who happens to be less than half his age) in the Ukraine while traveling just over 2 years ago. They fell in love, she came over here on a VW to California to marry him, they applied for an AoS and were approved (LA Service Center). He kept telling me that was the way to go. Trying to feel better, I mentioned that there was no appeal if an AoS filed for a spouse visiting on a VW is denied and the husband insisted that there actually was a way to appeal. Finally I had to re-direct the conversation because I was getting so upset about our situation.

Is it possible that an AoS with the VWP has become much more difficult in the past couple years? I do remember one lawyer saying that an AoS with the VWP used to be easier (and the foreign spouse would often overstay the 90 day VW before the AoS was filed). In the end it doesn't really make any difference but I would appreciate hearing any opinions about how the USCIS may have become more strict with an AoS. Or maybe this couple just got lucky.

Those people committed immigration fraud. It definitely sounds like they abused the VWP.

AOSing from the VWP DID used to be easier. Overstay wasn't an issue. It was just like AOSing from a visitor or any other visa. Then about a year or more ago they decided that the rules of the VWP meant that if USCIS didn't receive your AOS application before your VWP time expired they would deny the application. Now they are letting them through again in most places, but the VWP still doesn't give any right to appeal. Apparently when you complete the VWP application you're giving up the right to appeal.

You are most DEFINITELY going the safer route and I applaud you for it. Those people committed fraud and got away with it. It's unlikely to ever come back to bite them but you can know for sure that your wife's status is safe, that you went the proper way. Plus she's able to get more time to say goodbye the friends and family, maybe earn more money, send some stuff to you. Really get her life in order ready to move over for life.

An example of people not knowing #######. I ran into a UK citizen in the post office. Noticing my accent we got to talking about immigration. He told me that he was dual UK/US, and so was ONE of his two daughters. I asked him why the other one wasn't a UK citizen. He gave me some ####### about her age (she's younger than me). I assured him that I have a UK passport, dual Aussie/UK and there isn't an age issue any more. There was, but hasn't been for some time. He refused to listen and I hope one day his other daughter looks up the laws for herself and gets her other passport.. it seems unfair to me that he wouldn't even listen or look into it for his daughters sake.

You will also run into people who think that marriage to a USC makes them a USC. Even my family thought I was a USC, that that was what all the paperwork was. Funny really.

Also, things change over time. K3 visas are pretty much obsolete now but they weren't a couple of years ago. Unless someone has stayed on top of it they can't be sure they're still right. I tend to avoid the K1 forum now because I haven't done it since 2009 and I haven't stayed up on the rules.

[Brother Hesekiel 2,236]

Is it possible that an AoS with the VWP has become much more difficult in the past couple years? I do remember one lawyer saying that an AoS with the VWP used to be easier (and the foreign spouse would often overstay the 90 day VW before the AoS was filed). In the end it doesn't really make any difference but I would appreciate hearing any opinions about how the USCIS may have become more strict with an AoS. Or maybe this couple just got lucky.

VWP participants automatically (and now electronically) sign away their right of appeal, always have. True is that the majority of AoS petitions from a VW are being approved as intent is usually not being explored, simply because the Field Adjudicator's Manual dictates that intent alone, even if established, may not be used to deny such a petition. But if an I.O. explores intent, or feels like he's being bullsh*tted and digs deeper, and finds something else, such a deny can have devastating consequences. Beyond a denial, material misrepresentation can be noted, again without the option to appeal, and that would enter the American Dream for good as it would carry a lifetime bar from the U.S..

It's true that the waiting time is untoward. It takes so long because the USCIS is 100% self-funded, so faster times would require more I.O.s, equaling to higher costs. But the system is what it is, and until it changes I would not recommend playing the system without having at least a visa and the option to appeal.

[GandK 168]

So my German fiance did come over in October and we were married in SF City Hall (a very lovely location), we had a great honeymoon around Lake Tahoe and she returned to Germany after a couple weeks. I filed the I-130 Petition and received the NOA1 on November 15. After speaking with a couple lawyers and reading the vj forums, this sounded like the best course for us to take.

We had originally thought the entire process until she goes to the interview for the CR-1 Visa would take about 5 months (from the timing estimator on the CIS website). Then I looked into some of vj website information on timing and realized the entire process will likely take twice as long because of the NVC processing time. We are still trying to come to terms with being apart so long. I certainly cannot understand why deciding whether to allow my wife to live here with me requires so much time on the part of the government. I can only imagine our carefully prepared application materials sitting in a huge pile of similar applications, gathering dust.

Unfortunately, I was at a recent Holiday Party and met a couple that had been married 2 years ago. The husband is a US Citizen and he met his Estonian wife (who happens to be less than half his age) in the Ukraine while traveling just over 2 years ago. They fell in love, she came over here on a VW to California to marry him, they applied for an AoS and were approved (LA Service Center). He kept telling me that was the way to go. Trying to feel better, I mentioned that there was no appeal if an AoS filed for a spouse visiting on a VW is denied and the husband insisted that there actually was a way to appeal. Finally I had to re-direct the conversation because I was getting so upset about our situation.

Is it possible that an AoS with the VWP has become much more difficult in the past couple years? I do remember one lawyer saying that an AoS with the VWP used to be easier (and the foreign spouse would often overstay the 90 day VW before the AoS was filed). In the end it doesn't really make any difference but I would appreciate hearing any opinions about how the USCIS may have become more strict with an AoS. Or maybe this couple just got lucky.

Hello SurferBoy

My fiancee and I were in the same situation as yours. I am from Denmark which means I can come to the USA on VWP and adjust status but we chose to go the safe route and file for K-1 instead.

Yes I kept hearing about some people who comes on tourist visa and successfully adjusted status but let me remind you that for every 1 successful story, there might be a thousands sad stories that are not heard. You always hear the "good" story.

The whole immigration process is already very stressful as it is, we do not want to add more stress to that by lying to the border police and losing sleep over any red flags there might be.

And the most important question you need to ask yourself is "can you live with the consequence of the AOS being denied and your fiancé possibly convicted of visa fraud?"

For us, that scenario is totally unacceptable, my fiancee would have to quit her job and leave the US and we would have to find a new country to live together and waste even more time than if we go the legal and bulletproof way about it.

So yeah, AOS while on VWP might have 30% chance of being denied? 20% or 5% or even 0.0001%?

For us any chance of AOS being denied is not acceptable at all and that's why we choose to spend a little time apart knowing that soon we will be together forever.