AOS on VWP in 2012?

[celtichobbit 0]

Okay so, my hubby is here for a few months. He's from England and we have sent off a I-130 petition to the Phoenix Lockbox (before he came here to visit). We were just thinking though that we would like to look into any possible way for him to just stay here. Obviously overstaying is ruled out because we want to follow the rules and it would make everything WAY more complicated than necessary. So, I've been looking into maybe applying for an adjustment of status for him or maybe an extension on his VWP so he can stay here longer while the petition is being processed and we can be together for longer.

Any information at all is much appreciated, I realize I might be being a bit hopeful, but I know that a few of the regulations and processes have changed recently.

Thanks!

-Rebecca

[Mithmeoi 29]

Don't think that's do-able. He'll have to go back while the rest of his papers are processed, but at least you two can spend some time together while they work on your case. The max he can stay is 3 months on the VWP.

[JimVaPhuong 4,863]

Okay so, my hubby is here for a few months. He's from England and we have sent off a I-130 petition to the Phoenix Lockbox (before he came here to visit). We were just thinking though that we would like to look into any possible way for him to just stay here. Obviously overstaying is ruled out because we want to follow the rules and it would make everything WAY more complicated than necessary. So, I've been looking into maybe applying for an adjustment of status for him or maybe an extension on his VWP so he can stay here longer while the petition is being processed and we can be together for longer.

Any information at all is much appreciated, I realize I might be being a bit hopeful, but I know that a few of the regulations and processes have changed recently.

Thanks!

-Rebecca

VWP cannot be extended. It's one of the many restrictions one has to accept for the privilege of not having to get a visa.

If he didn't intend to immigrate when he entered the US then you can file for adjustment of status. You should file before his VWP stay expires. Not long ago, people who had overstayed a VWP entry and tried to adjust status were being summarily deported, but that seems to have stopped. Still, better not to take a chance.

The biggest issue you have to worry about is the VWP entry. His rights are severely restricted. He agreed to this when he agreed to the terms of using the VWP. He can't appeal any decision by an immigration officer. This means that USCIS could deny his AOS and immediately order his deportation. There would be no opportunity to appeal. There would be no hearing in immigration court. There isn't a big risk of this happening, but it's a risk nevertheless, and it's a risk that wouldn't exist if he entered with a visa. Again, one of the restrictions one must accept when they use the VWP.

Were you already married when he entered the US?

[ceadsearc 516]

Were you already married when he entered the US?

It looks like they were. According to her timeline, they've been married since December and then have made a few visits to each other after that.

[Harpa Timsah 13,258]

It doesn't matter if they were married or not when he last entered. Since they are pursuing the CR-1 path, it appears the husband did not last enter the US with immigrant intent. Now they are questioning that decision while he is in the US. If he now decides to file for AOS, and change to a concurrent I-130/I-485, he can. OP, keep in mind if you go down this path, he cannot go home for a few months at least.

Edited June 17, 2012 by Harpa Timsah

[JimVaPhuong 4,863]

It looks like they were. According to her timeline, they've been married since December and then have made a few visits to each other after that.

Well, this could be an issue.

Normally, USCIS won't deny an AOS application solely for preconceived intent. In Matter of Ibrahim the BIA found that preconceived intent was a serious negative factor that the immigration officer must consider. However, in Matter of Battista the BIA found that an AOS application should not be denied for preconceived intent alone if there were positive factors that outweighed it, such as the applicant is an immediate relative of a US citizen. Immigration officers are well versed in this, and know that an immediate relative of a US citizen who is denied solely for preconceived intent will almost certainly prevail on appeal. What makes this case different is that there will BE NO appeal. The alien waived their right to appeal when they accepted the terms of the VWP. An IO could look at the circumstances, conclude that there was preconceived intent and deny the AOS on that basis, and nobody - not even the President - could overturn that decision.

If I were in those boots then I would be walking those boots back to the airport to go back to England and wait for a CR1 interview.