Help ! i appreciate any advice !

[jimmy0022 0]

Ill try to keep it as simple as possible, and i want to thank you all in advance for your help !

here is my problem, june,2010 i went to usa on a visa waiver.i met a girl and we got married.

i did NOT overstay my visa waiver and went back home to austria.since than i was traveling back and forth

2 times per year, never had problems with anybody or anything.

we filed I-130 and i was APPROVED!

my PD is Nov.15 2010

we are in illinois.

oct.2011 was my last trip to the usa. i went back to austria january 2012 before the 90-day period ends.

my wife is now pregnent and i am here in austria. working.

my wife will be US citizen end of OCT. 2012.

i hope it is enough information for you to help me!

now my question:

i do not really want to stay until OCT.2012 (til she will be citizen)

in austria.

i wanted to travel on VISA WAIVER to USA approx. 80-90 days before she'll be citizen.

in case my wifes processing of citizenship will be delayed, and i will overstay my visa waiver(for a few days or weeks), will i have trouble

with my Adjustment of Status (AOS)?

thank you again in advance for your help. and if you need more information pls let me know.

god bless.

jim

[aaron2020 11,651]

Ill try to keep it as simple as possible, and i want to thank you all in advance for your help !

here is my problem, june,2010 i went to usa on a visa waiver.i met a girl and we got married.

i did NOT overstay my visa waiver and went back home to austria.since than i was traveling back and forth

2 times per year, never had problems with anybody or anything.

we filed I-130 and i was APPROVED!

my PD is Nov.15 2010

we are in illinois.

oct.2011 was my last trip to the usa. i went back to austria january 2012 before the 90-day period ends.

my wife is now pregnent and i am here in austria. working.

my wife will be US citizen end of OCT. 2012.

i hope it is enough information for you to help me!

now my question:

i do not really want to stay until OCT.2012 (til she will be citizen)

in austria.

i wanted to travel on VISA WAIVER to USA approx. 80-90 days before she'll be citizen.

in case my wifes processing of citizenship will be delayed, and i will overstay my visa waiver(for a few days or weeks), will i have trouble

with my Adjustment of Status (AOS)?

thank you again in advance for your help. and if you need more information pls let me know.

god bless.

jim

Jim,

It is illegal to enter the US on the VWP with the intent to immigrate or adjust status to a green card holder. While USCIS may overlook this in many cases, you could be one of those that gets denied for abusing the VWP.

If you try to adjust status, you are asking for a world of hurt. You have an I-130 filed, you enter on the VWP which requires you not to have the intent to immigrate or adjust your status, and then you attempt to adjust your status? See how bad it looks?

Furthermore, how do you know that your wife will be a US citizen in October 2012? Has her oath ceremony been schedule? It takes months for a US citizenship application to be processed. If your wife is eligible to become a US citizen in October 2012, it could many months before she takes her oath of citizenship. Some people have reported waiting a year for them to complete the citizenship process.

Why take the chance that you and your wife will be screwed by taking the short route? After your wife becomes a US citizen, all she has to do is inform the NVC and provide proof. The NVC will process the case and forward it to the US Embassy. Once you get your immigrant visa, you get a green card when you enter the US. You will be able to immediately work. With an adjustment, you will not be able to work for several months. In addition, you can't file to adjust until after your wife takes her oath of citizenship.

You are way better off waiting in Austria, using the VWP to visit (lots of foreign fiancees can't even visit the US), and getting an immigrant visa.

Edited February 21, 2012 by aaron2020

[jimmy0022 0]

oh... i see .

but i found a lot of people who applied for AOS while being on WVP.

maybe i just miss understood something ?!

well anyways

thank you for you answer !

[aaron2020 11,651]

oh... i see .

but i found a lot of people who applied for AOS while being on WVP.

maybe i just miss understood something ?!

well anyways

thank you for you answer !

Many people are successful adjusting when they enter on the VWP. But how many of them had an I-130 already filed before they enter the US? This changes things quite a bit. It's one thing to enter the US on the VWP without the intent to immigrate, decide to get marry and stay, and then adjust. It is something else to apply for an immigration benefit, enter the US on VWP which requires you not to have the intent to immigrate, and then try to adjust.

Also, when does your wife going to take her oath of citizenship? Is she qualified to be a citizen in Oct. 2012 (meaning she can apply 90 days before that) or will she be finishing the process?

[jimmy0022 0]

Many people are successful adjusting when they enter on the VWP. But how many of them had an I-130 already filed before they enter the US? This changes things quite a bit. It's one thing to enter the US on the VWP without the intent to immigrate, decide to get marry and stay, and then adjust. It is something else to apply for an immigration benefit, enter the US on VWP which requires you not to have the intent to immigrate, and then try to adjust.

Also, when does your wife going to take her oath of citizenship? Is she qualified to be a citizen in Oct. 2012 (meaning she can apply 90 days before that) or will she be finishing the process?

i got your point. does it matter that i was approved like a year ago (I-130) since then i was like 2 - 3 times in the US under visa waiver...

Also, when does your wife going to take her oath of citizenship? Is she qualified to be a citizen in Oct. 2012 (meaning she can apply 90 days before that) or will she be finishing the process?

well she will apply for citizenship sep.2012 like you said 90 days before. i just had this whole idea coz her mom ,and some friends got their citizenship within less than 90 days .

but like i said it was til now just a thought.

she is pregnant and ... you know .. i wanted to be there with her... im going back and forth almost 2 years already.

thank you for you time i appreciate it .

[aaron2020 11,651]

i got your point. does it matter that i was approved like a year ago (I-130) since then i was like 2 - 3 times in the US under visa waiver...

It doesn't matter. As long as you are simply visiting and returning home, then there isn't any problem. If you abuse your privilege under the VWP by overstaying or using it so often that you are de-facto living in the US, then you will no longer be allowed to use the VWP.

well she will apply for citizenship sep.2012 like you said 90 days before. i just had this whole idea coz her mom ,and some friends got their citizenship within less than 90 days .

but like i said it was til now just a thought.

she is pregnant and ... you know .. i wanted to be there with her... im going back and forth almost 2 years already.

thank you for you time i appreciate it .

It's your choice on which path you want to be one. The current path you are one will lead to a green card and will relatively be easy. If you choose to overstay on the VWP and adjust, you are potentially throwing red flags on your usage of the VWP to circumvent immigration laws.

Your PD is Nov. 15, 2010. You'll probably get an immigration visa in mid-2013 because the current PD is July 22, 2009. Is half a year worth it???? You will need to decide if a few months in the US is worth putting your family at risk if your adjustment is denied.

[jimmy0022 0]

thank you so much for your help

[JimVaPhuong 4,863]

Adjustment of status is a discretionary benefit, so you're always at the mercy of the immigration officer, to some degree. The real problem with adjustment of status while using the VWP is that you've waived your rights to appeal any decision. It's a prerequisite of using the VWP. If the adjustment of status is denied then you can't file a motion to reopen, you can't appeal to the Executive Office of Immigration Appeals, you will not get a chance to talk to an immigration judge or file your case with the Board of Immigration Appeals. You can't even file a lawsuit in a federal court. In short, you would be screwed. What's more, if the immigration officer denies you on the basis that they believe your relationship is a sham then you would have a material misrepresentation in your file. Not only would you not get a green card, you'd be banned from the US for ten years upon your departure, and you'd need a hardship waiver from your spouse to get the ban waived.

Many people do adjust status while visiting on the VWP, and they are approved. Statistically, the odds are in your favor. If you happen to be one of the few who are unsuccessful then the consequences can be quite severe. Waiting for the immigrant visa is the safe route. Not only that, it's the route that the US law intended you to use, and the one which both USCIS and Department of State prefer that you use. Adjustment of status is supposed to be for people whose circumstances have changed since they entered the US, or who entered the US with a visa that allows for immigrant intent.

[jimmy0022 0]

Adjustment of status is a discretionary benefit, so you're always at the mercy of the immigration officer, to some degree. The real problem with adjustment of status while using the VWP is that you've waived your rights to appeal any decision. It's a prerequisite of using the VWP. If the adjustment of status is denied then you can't file a motion to reopen, you can't appeal to the Executive Office of Immigration Appeals, you will not get a chance to talk to an immigration judge or file your case with the Board of Immigration Appeals. You can't even file a lawsuit in a federal court. In short, you would be screwed. What's more, if the immigration officer denies you on the basis that they believe your relationship is a sham then you would have a material misrepresentation in your file. Not only would you not get a green card, you'd be banned from the US for ten years upon your departure, and you'd need a hardship waiver from your spouse to get the ban waived.

Many people do adjust status while visiting on the VWP, and they are approved. Statistically, the odds are in your favor. If you happen to be one of the few who are unsuccessful then the consequences can be quite severe. Waiting for the immigrant visa is the safe route. Not only that, it's the route that the US law intended you to use, and the one which both USCIS and Department of State prefer that you use. Adjustment of status is supposed to be for people whose circumstances have changed since they entered the US, or who entered the US with a visa that allows for immigrant intent.

does it not depend in which state i am ?

[jimmy0022 0]

does it not depend in which state i am ?

and one more thing.... what if my PD will be current when ill be in the US ?

will i have to go back to Austria to go to the embassy ?

will it not somehow be the same thing ? like if my wife is Citizen when ill be in the USA ,

or if the PD is current ....

wow everything is a bit complicated ... maybe ill check with a lawyer.