Married while in US on ESTA - AOS?

[jdh 103]

I agree with Little_My. They have on record that you weren't going to stay and marry and AOS and I would worry this will come back to bite you. I personally would NOT risk it. Either get married and return to file a CR-1, or return and file the K1. As you entered on the VWP you have no chance at appeal.

He was specifically warned against it. I wouldn't risk it. Denial and deportation is a big risk to take :S If he wasn't questioned it wouldn't be ask big a risk.

What do you mean he was warned against it? He was inspected at the border...CBP did their job and now it is done. Now it is to USCIS - a different organization - to assess whether he is eligable to immigrate via AOS based on the validity of his marriage and lack of criminal background.

He has the right to change his mind and adjust within the country. He is doing exactly what AOS is meant to allow.

What was asked in secondary is irrelevant. He was responding to questions asked with what was to the best of his knowledge the truth...that changed and now he is AOSing which he is completely eligible to do.

Material representation would only come into play with something that could be proven as a lie at the time - ie, "Do you have a criminal record?". "Are you transporting an illegal substance?"

They don't have mind readers to dissect his brain and determine that he was lying at the time - thus making intent irrelevant and not considered in the AOS process.

Edited May 3, 2012 by jdh

[VanessaTony 3,567]

What do you mean he was warned against it? He was inspected at the border...CBP did their job and now it is done. Now it is to USCIS - a different organization - to assess whether he is eligable to immigrate via AOS based on the validity of his marriage and lack of criminal background.

He has the right to change his mind and adjust within the country. He is doing exactly what AOS is meant to allow.

What was asked in secondary is irrelevant. He was responding to questions asked with what was to the best of his knowledge the truth...that changed and now he is AOSing which he is completely eligible to do.

Material representation would only come into play with something that could be proven as a lie at the time - ie, "Do you have a criminal record?". "Are you transporting an illegal substance?"

They don't have mind readers to dissect his brain and determine that he was lying at the time - thus making intent irrelevant and not considered in the AOS process.

He was asked about his intent. he specifically said he intended to leave and they've noted that on his file. He noted his knowledge of the K1 process.

I'm sorry but you don't KNOW he'll be okay and the risk is denial and deportation with no chance of appeal. If he'd never been questioned (I've never been pulled into secondary or asked any such qn) he wouldn't really be taking a risk but he said to the officer he knew about the process for K1 and that he intended to leave. It's just too risky to risk paying all the money to be denied and deported... separated in a very bad way, versus doing it the "proper" way.

This is of course my opinion and he is able to do whatever he wants.

Edited May 3, 2012 by Vanessa&Tony

[jdh 103]

He was asked about his intent. he specifically said he intended to leave and they've noted that on his file. He noted his knowledge of the K1 process.

I'm sorry but you don't KNOW he'll be okay and the risk is denial and deportation with no chance of appeal. If he'd never been questioned (I've never been pulled into secondary or asked any such qn) he wouldn't really be taking a risk but he said to the officer he knew about the process for K1 and that he intended to leave. It's just too risky to risk paying all the money to be denied and deported... separated in a very bad way, versus doing it the "proper" way.

This is of course my opinion and he is able to do whatever he wants.

I would love to see a basis for that argument...

He was asked about his intent at the time, which was not to immigrate. His intent changed - thus AOS....like it or lump it, that is the system.

People change their minds = AOS.

Edited May 3, 2012 by jdh

[ceadsearc 516]

I agree on the material misrepresentation possibility. Is it a huge risk? Maybe not. But it may also be on record that you said you wouldn't adjust and knew you were not supposed to, and since you entered on VWP you get no appeal if you are denied.

I would either file for a K-1 now or marry now and file for a CR-1, you can stay till the end of the 90 days anyway and still visit back and forth while it is processing.

[VanessaTony 3,567]

His intent changed - thus AOS....like it or lump it, that is the system.

It has nothing to do with ME liking or lumping it. I couldn't care less whether he's deported or he gets married and successfully AOS's, it's not MY life, however I am warning him that there is a risk. denying there is a risk is dangerous. It could be a 1% risk but that's still to big for ME. Hence "this is my opinion"... Anyone who enters and AOS's has a risk of denial. His just happens to be a little larger 'cause he was pulled into secondary. "Larger" could be 2% versus 1% but like I said, 1% is still too big a risk for me when you're talking about being with your loved one.

Edited May 3, 2012 by Vanessa&Tony

[jdh 103]

It has nothing to do with ME liking or lumping it. I couldn't care less whether he's deported or he gets married and successfully AOS's, it's not MY life, however I am warning him that there is a risk. denying there is a risk is dangerous. It could be a 1% risk but that's still to big for ME. Hence "this is my opinion"... Anyone who enters and AOS's has a risk of denial. His just happens to be a little larger 'cause he was pulled into secondary. "Larger" could be 2% versus 1% but like I said, 1% is still too big a risk for me when you're talking about being with your loved one.

So your general argument is against AOS being a good idea...now that makes sense.

Yes OP, there may be a 2% risk of denial.

[VanessaTony 3,567]

So your general argument is against AOS being a good idea...now that makes sense.

Yes OP, there may be a 2% risk of denial.

I never said it WAS 2%. You like to twist things to suit your point huh? "COULD BE" 2% is what I said. I personally believe it's larger, but I don't know exactly what he said, or what the officer noted in his file.

I find it odd that you believe that even with a small POSSIBLE 2% chance of denial risking it is worth it. To follow your example of twisting things, obviously I love my spouse more than you and wouldn't want to take that risk with our relationship.

[jdh 103]

My apologies for my sarcasm, but what you are saying is entirely based on your feelings.

Show me some cases where intent was an issue.

Secondary is irrelevant...

The only relevant thing is that he legally entered the country and now he wants to AOS, which is his prerogative.

Edited May 3, 2012 by jdh

[Mike Z 8]

the op already married in the states so only CR-1 is feasible, no K1.

the risk is obviously larger; you were explicitly questioned at entry.

if it does come up in the interview, i'm not sure i would be convinced as an IO that, after being asked about this very topic, you changed your mind. its not a very convincing pitch in my opinion.

there will not be definite answer to your question as only you know your true intent and need to gauge the risk involved.

i would not do it.

[Mike Z 8]

Show me some cases where intent was an issue.

Secondary is irrelevant...

The lack of evidence about intent is no proof that secondary is irrelevant. that is a conclusion you draw.

yes, there are cases of AOS without questioning intent.

Maybe we could get the experience of someone who did AOS after secondary?

Thats the case you need to show secondary is irrelevant.

NOT those that successfully did it without secondary.

[jdh 103]

The lack of evidence about intent is no proof that secondary is irrelevant. that is a conclusion you draw.

yes, there are cases of AOS without questioning intent.

Maybe we could get the experience of someone who did AOS after secondary?

Thats the case you need to show secondary is irrelevant.

NOT those that successfully did it without secondary.

Secondary is no different than primary - it is just more involved in the questioning and they do it away from the booth to clear the booth for traffic. I have been in secondary before, more than once. Once you are cleared, you are good to go and no different than anyone else. Why? Because they determined you were eligible for entry.

The fact he went through secondary is irrelevant. It does not take away his ability to change his mind.

[Mike Z 8]

I have been in secondary before, more than once.

did you go through secondary as your last entry before you filed for AOS?

will indeed be curious to hear about your interview experience.

as i said, it would help to get someone with said experience to add to this discussion.

/EDIT: btw, congratulations on your EAD!

Edited May 3, 2012 by Mike Z

[ceadsearc 516]

The issue isn't intent itself ... It's misrepresentation. IE if the OP was specifically asked in secondary, "Are you going to adjust your status?" and they said, "No!" and CBP noted that in the system. Yes, that may have been true at the time and they may have genuinely changed their mind later BUT USCIS could decide they don't believe that, that they lied during questioning and thus committed material misrepresentation. Now, I'm not saying that's a huge risk but it IS a risk and OP should be aware of it (if it applies to them), particularly since they entered on VWP so if they get denied they cannot appeal.

[Moomin 292]

Secondary is no different than primary - it is just more involved in the questioning and they do it away from the booth to clear the booth for traffic. I have been in secondary before, more than once. Once you are cleared, you are good to go and no different than anyone else. Why? Because they determined you were eligible for entry.

The fact he went through secondary is irrelevant. It does not take away his ability to change his mind.

There is a record to be found. USCIS has access to that record upon request. If - and it's an if because none of us are CBP officers - there's something in there contradicting OP's story or intentions of filing AOS, then that's the 1 percent risk of having AOS denied. As most said, OP doesn't have to prove anything at this point. There wasn't a piece of paper signed or a NO AOS/EOS/COS stamp in the passport so theoretically, OP should be good to go unless the conversation in secondary questioning was different than what has been told here.

Edit: and the point of all this, as ceadsearc points out, is that there's no appeal when having entered on VWP.

Edited May 3, 2012 by moomin

[ValerieA 350]

Not quite the same thing, but I was pulled into secondary on my last trip into the US before I AOS'd. Obviously, that was not my intent - we had a CR-1 in process. After quite a bit of questioning (I had a lot of luggage and my cat with me, since I was planning on visiting for 6 months) he authorized a 3 month stay and wrote "No EOS/AOS" on my I-94. Circumstances changed, and I ended up AOSing instead of completing the CR-1. I am only one story, but I was not questioned about my intent during my interview. Apparently the "No EOS/AOS" has no bearing on USCIS. However, he never did ask me if I intended to AOS, he just made the comment that having quit my job and given up my apartment made my intent look suspicious, but he was eventually convinced - I think because we had a CR-1 filed.