AOS for spouse who came on tourist visa

[ff5bass 1]

Hi, I'm new here and was hoping for some insight on filing for AOS and resident alien petition for my spouse who came here on a tourist visa. Our situation is different in that we've already been married for 3+ years (in Australia) and have sufficient evidence supporting our marriage and joint assets, etc. Since our decision to move came rather unexpectedly, we didn't feel we had time to file I-130 and CR1 from Australia.

Here's some background:

Me: U.S. citizen

Wife: Australian citizen

Married: July 2008 in Sydney, Australia

Decided in Oct 2011 to move from Australia to the US in Jan 2012 to pursue graduate school.

Jan 21, 2012: arrived in US.

Forms we are planning to file concurrently: I-130, I-485, I-864, I-765, I-693, G325a

Just found this link, which seems to say it should be fine and will not result in an automatic denial: www.visalawyerblog.com/2012/01/adjustment_of_status_for_alien_1.html

Can anyone confirm that things should be okay? Also, what happens to fees if you are denied.

Many thanks!

[CC90 90]

You will generally have to prove that your wife made the decision to move to the US after arriving, not before. She represented herself as a non-immigrant when she arrived, which she was not. This is a very serious immigration offense. The "correct" option in this case is to peruse an IR-1 in Australia; you can start the process in the US.

Every case is different, but you should read Matter of Cavazos before deciding-- and perhaps consult with a lawyer.

The fees are non-refundable from the moment USCIS accepts your forms for processing.

[ff5bass 1]

You will generally have to prove that your wife made the decision to move to the US after arriving, not before. She represented herself as a non-immigrant when she arrived, which she was not. This is a very serious immigration offense. The "correct" option in this case is to peruse an IR-1 in Australia; you can start the process in the US.

Every case is different, but you should read Matter of Cavazos before deciding-- and perhaps consult with a lawyer.

The fees are non-refundable from the moment USCIS accepts your forms for processing.

Thanks for the info. I'm not sure I could grasp the exact meaning of Matter of Cavazos through the legal terminology, but it sounded as though the case may be a basis for appealing decisions based on intent to immigrate on a nonimmigrant visa (I could be way off).

How is the IR-1 started in the US? With the I-130?

Thanks again.

[CC90 90]

Thanks for the info. I'm not sure I could grasp the exact meaning of Matter of Cavazos through the legal terminology, but it sounded as though the case may be a basis for appealing decisions based on intent to immigrate on a nonimmigrant visa (I could be way off).

You are correct, but there are several conditions that must be met for it to work. As I said, having someone talk to you face-to-face with all of your details and context is going to be immensely important if she decides to adjust.

How is the IR-1 started in the US? With the I-130?

Yes.

[ValerieA 350]

Intent alone can not be used as a reason to deny, there are many threads on this in here. As long as your wife did not misrepresent herself (ie: lie to immigration officials) she should be OK. Was she pulled into secondary at the border? Did she answer anything for either the visa or entry into the country falsely?

[ff5bass 1]

Intent alone can not be used as a reason to deny, there are many threads on this in here. As long as your wife did not misrepresent herself (ie: lie to immigration officials) she should be OK. Was she pulled into secondary at the border? Did she answer anything for either the visa or entry into the country falsely?

Thanks for the new information. There was no misrepresentation, no secondary screening or interview. She came through the US citizen line with me and we were even honest and said we planned to file for AOS. The immigration official just wished us well.

[jojolicious 38]

You should be fine based on the information you've provided here. Good luck!

[CC90 90]

Thanks for the new information. There was no misrepresentation, no secondary screening or interview. She came through the US citizen line with me and we were even honest and said we planned to file for AOS. The immigration official just wished us well.

The "intent alone" issue is exactly the precedent that Matter of Cavazos set. But it's rather clear on "intent alone" -- i.e. there can be no other potentially adverse factors. And what is an "adverse factor" is left up to them. This is why it is best to talk to somebody face-to-face before making a decision.

[lynJer 7]

You have been married for 2 or 3 years....

Just file the AOS...

Nothing to worry about.....

Yes there has been the odd 'send you back to the country you came from' SO WHAT...you both have to go back to OZ....wish they would send me back there.....

My son came over here on a visa waiver....overstayed his visa - called immigration about it and they were going to grant his AOS to residential without any questions...

I suggest that being an Australian will go in your favour....there will be no issues...

just paper shuffling and COSTS.....COSTS COSTS.... so good luck with that .... forget the ####### about the 'intent' .... the intent is to live with your spouse....end of story....your been married past that 2 year date....so cheers...

[ceadsearc 516]

Well, coming with intent to immigrate is illegal. They shouldn't have let your spouse in the country and I'm surprised they did. That being said, intent alone isn't used to deny. You said your spouse came to pursue graduate school, but yet they came on a tourist visa, not a student visa?

At this point, the risk is yours. You have to decide if you feel comfortable with the facts and the chances or not.

[ff5bass 1]

Well, coming with intent to immigrate is illegal. They shouldn't have let your spouse in the country and I'm surprised they did. That being said, intent alone isn't used to deny. You said your spouse came to pursue graduate school, but yet they came on a tourist visa, not a student visa?

At this point, the risk is yours. You have to decide if you feel comfortable with the facts and the chances or not.

I am the one going to graduate school. We have an appt to talk with an official at our local USCIS office on Monday. We'll see what they say.

[YupYup 4]

I don't think you are able to file for AOS in the states. the problem is, that you got married BEFORE your wife entered the states on a visitor visa. they should have not even leg your wife into the country, because by the time you entered the united states and before, you had the intent to immigrate while on a B1 or B2 visa, which is immigration fraud! If you would have been here in a visitor visa and made the desicion to get married after you entered the states, that you would be able to adjust her status.

[ff5bass 1]

I don't think you are able to file for AOS in the states. the problem is, that you got married BEFORE your wife entered the states on a visitor visa. they should have not even leg your wife into the country, because by the time you entered the united states and before, you had the intent to immigrate while on a B1 or B2 visa, which is immigration fraud! If you would have been here in a visitor visa and made the desicion to get married after you entered the states, that you would be able to adjust her status.

USCIS said to apply within the 90 days and it would not be a problem. I'm not sure what you mean by B1 or B2 visa, this is not the case with our situation. My wife entered legally on the VWP with a return flight within 90 days. If we can adjust her status, we will. If not, she will go back and come in on a spouse visa.

[YupYup 4]

VWP is a visitor visa as B1 and B2. She was already your wife, when you entered the united states, so theres the problem. since you are already married, immigration could see fraud in your case. you have to prove, that she binding ties and a strong reason to return to australia (which is not easy in your case, because you are her husband in the states!!!) the get spouse visa is the best way for you to go. if your AOS under VWP gets rejected, you will have no right to appeal and she must return within 30 days to her home country. if you were honest and said to the border protection, that you had the intent to file AOS, the should have not let you cross the border. you apparently already have your mind set, so it doesnt really matter what we say. you came here with the intent to stay and to file AOS, thats immigration fraud! and you have to have a return flight anyways, to use VWP. they have a special eye on that.

Edited February 19, 2012 by Symply_Me

[ff5bass 1]

VWP is a visitor visa as B1 and B2. She was already your wife, when you entered the united states, so theres the problem. since you are already married, immigration could see fraud in your case. you have to prove, that she binding ties and a strong reason to return to australia (which is not easy in your case, because you are her husband in the states!!!) the get spouse visa is the best way for you to go. if your AOS under VWP gets rejected, you will have no right to appeal and she must return within 30 days to her home country. if you were honest and said to the border protection, that you had the intent to file AOS, the should have not let you cross the border. you apparently already have your mind set, so it doesnt really matter what we say. you came here with the intent to stay and to file AOS, thats immigration fraud! and you have to have a return flight anyways, to use VWP. they have a special eye on that.

Thank you, Simply Me. I understand that we were ignorant and naive in assuming that since we had been married a while, that it should be no problem to sort out the immigration from the US. The 'fraud' was unintentional. We obviously got a nice (or dumb) immigration officer at the border. Either way, that is irrelevant now because my spouse is here.

The i-130 and i-485 paperwork was filed and delivered last week. I was careful in the wording of my story as to why my spouse arrived as a visitor and now intends to immigrate. According to others, intent cannot be cause for denial anyway. The genuineness of our relationship is easily proven, so I'm not sure why they would deny the AOS, but we will see.

I could really use some positive vibes instead of people telling me the mistakes I made.