Spouse Enters on Visitor's Visa, Applies for Green Card

[Lorenzoid 12]

Hi guys,

So our story in brief: met my (British) husband in Wales three years ago, married in Wales a year later. We've been married two years now, and have spent that time in Europe and the last year in China teaching English. We've just returned to the States - him on a three month visitor's visa/tourist visa. . . .

. . .

I don't have anything to add to what others have said, but your story reminds me how the whole immigration issue can quite innocently slip people's minds. These days, couples travel together, live in various countries around the world in which neither is a citizen, at some point get married in one country or another, and then only when they are thinking of moving to the US--or as this thread shows, after having entered the US--with the idea (I'll refrain from using the loaded word "intent") that they are more or less going to remain in the US--only at that point do they start thinking about the whole "immigration" issue, green cards, etc. I can completely understand how people who travel a lot and have lived in multiple countries might not think about the immigration issue at all until after arriving in the US with the idea that you're going to make it your new home. It's so easy to travel about the world these days, especially if you're from a VWP country (as my own wife is), and even remain for extended periods to work in various places. And then you find yourself in the US and thinking "wait a minute--I guess I should look into that green card thing if we're going to live here for a while." You may not have had the foresight to look into it before your husband entered the US this time, but it is hardly surprising to me that you didn't think of it. I hope USCIS sees it similarly. Good luck.

[ceadsearc 516]

Yes, thanks again, this is an important point. Does anyone know if you are able to appeal a denial when adjusting status from VWP?

No. By entering on VWP your spouse waived his right to appeal a denial. Probably not an issue but definitely something to be aware of.

[troutcat 41]

My response is only relevant if your husband came in on the Visa Waiver program. Stay and adjust? No, this was not for us, since there is no appeal from a denial of AOS if one entered on the VWP. We chose the most conservative path we could find, for our own peace of mind. It remains to be seen how the enforced separation has affected our relationship, but we chose not to add risk on the front end.

[AF-Wife 181]

My response is only relevant if your husband came in on the Visa Waiver program. Stay and adjust? No, this was not for us, since there is no appeal from a denial of AOS if one entered on the VWP. We chose the most conservative path we could find, for our own peace of mind. It remains to be seen how the enforced separation has affected our relationship, but we chose not to add risk on the front end.

Because you get denied here, doesn't mean that you can't go back and apply for a CR-1. I personally went with the 1st option, to adjust while being in the US with my spouse and if I would have gotten denied, I would have gone back to my country and apply there for a spousal visa. It's worth a shot and people are getting way to scared of getting denied. Go ahead and risk it. The chances are much greater to get approved (you didn't get married because of immigration purposes) rather than denied.

[troutcat 41]

It is true that if AOS is denied after entering on the VWP, one can go back to one's home country and apply for the CR1/IR1. This was simply not the best choice for us. However small the risk, I could not bear the thought that someone could say NO, just because he or she felt like it, and because of something unnecessary that we had chosen - the one process with no appeal - and there would be NOTHING we could do about it but send him out of the country and start over. Your individual circumstances may make risking that - albeit a small risk - a much more attractive option than it was for us.

[calenwen 3]

UPDATE:

There is a USCIS application support centre not far from where we live, and my husband was able to drop by the other day (couldn't find a phone number, only an address!). He asked a member of the staff there if it was okay to apply for a green card even though he was over on the VWP and the staff member said that it was fine and wouldn't be a problem. So...? Guess we'll go for it!

Thanks for all of your thoughts, insights, and shared experiences. They were immensely helpful and I'm glad to know there's a community like this out there.

[Boiler 45,558]

You have no right to rely on information a Governmental Official said.

[Henny Dee 0]

It looks like you have been given some mis-information.

Firstly, intent alone cannot be the basis of an AOS denial-- there needs to be other factors involved. Many, many people adjust their status successfully from a B2 visa or even the VWP.

Simply file the I-130/AOS package. Once you file the package, your spouse enters a new status commonly referred to as "pending status" which is a legal status under the color of US law and no lawful presence or overstay is incurred while your case is adjudicated.

I was given the same information as what you wrote here by USCIS and i felt relax as i and my husband will be able to live together in US on a "pending case". Then i read some information at the beginning of this case and i was kind of nervous again but after got re confirmation from you,i feel relax again

[mamaSue 38]

UPDATE:

There is a USCIS application support centre not far from where we live, and my husband was able to drop by the other day (couldn't find a phone number, only an address!). He asked a member of the staff there if it was okay to apply for a green card even though he was over on the VWP and the staff member said that it was fine and wouldn't be a problem. So...? Guess we'll go for it!

Thanks for all of your thoughts, insights, and shared experiences. They were immensely helpful and I'm glad to know there's a community like this out there.

We did the same.... we were already married and were living in the UK....I applied for a B2 visa after returning home after 85 days on a VWP.

The reason I applied for a B2 was that I'd bought a house and I needed extra time to renovate it.

We were going to come back to the UK, wait, and apply for DCF from London.

We went on an infopass appointment and asked if we had to leave the country to file, as we didn't want to break any rules. The officer at USCIS told us it would be perfectly OK to file AOS, and gave us the appropriate forms.

The issue never even came up at our AOS interview.

[Boiler 45,558]

It would be very rare for it to do so.

[him4life 13]

this intention thing is very silly to me, intent is something from within, how can someone know what your intent is other than you, this argument of intent just does not make any sense to me

[celinayfran 2]

NOTE:

I'm afraid I wasn't clear enough in my opening post. My husband entered the USA after registering with ESTA, for what I assume is the VWP. When questioned by Border Patrol he stated that he was here for just under three months, to visit Yellowstone and see friends. They did not ask him if he was married and he did not say. He has a return ticket to England booked for September. He will use it if he must. Our intention was to continue travelling. Upon arriving, we realised that it was possible to get him a green card, and thought the timing seemed right. Frequent traveling can really take it out of you, and we felt ready to relax with family and stay in the same place for longer than a few months.

And there you have it!! He had a returm ticket and your intention was to continue traveling. Stay and adjust status!! Good Luck:)

Each case is different, people adjust status all the time, sometimes with the intetion of bypassing the US immigration law which yes is wrong and illegal but others have legit cases and decide this is the best and a legit option for them:)

[ceadsearc 516]

this intention thing is very silly to me, intent is something from within, how can someone know what your intent is other than you, this argument of intent just does not make any sense to me

It's not inten itself that becomes an issue. It's if you were questioned about your intentions, lied, and CBP recorded it. Then you have material misrepresentation and THAT is the real issue.

[Boiler 45,558]

You need to have an onward ticket to use the VWP.

[calenwen 3]

You need to have an onward ticket to use the VWP.

I thought so, too! Surprisingly, BP didn't even ask my husband if he had an onward ticket.