IR-1/CR-1 Spouse Visa. About to submit. Gray area question.

[Harpa Timsah 13,258]

You can adjust status if you want. It sounds like that wasn't your plan when you arrived, since you are planning to pursue a spousal visa right now.

A "spontaneous marriage" is not a requirement as stated above.

And the person you spoke to on the phone is wrong. You can adjust from the VWP.

Edited June 15, 2013 by Harpa Timsah

[VanessaTony 3,567]

What questioning, if any, happened when she entered? Was it just a simple entry or did she get pulled into secondary? That's important.

it is legal to adjust status on the VWP. if it was her intent on entry to adjust status then you would be committing visa fraud.

I suggest you read the guides to determine what route you want to pursue.

[Rushton50 10]

So after much consideration about how to proceed, my wife and I got married last week in her home country of Australia where it is legal to marry as a tourist.

She is back in the USA with me now, using her 90 day visa wavier to spend the summer here. We are preparing to mail out our I-130 in the next couple of days. We have been doing some reading as well as talking to friends that have been through this as well as friends of others who work for immigration law firms, etc. We are trying to figure out the simple question of does she have to leave after the 90 days when her visa wavier expires or as my wife with a visa application submitted can she remain here with me during the process?

The USCIS website references if you spouse is in the US already by legal means. Yes, a visa wavier is a legal means and she was admitted for 90 days by customs in San Francisco. However a visa wavier is not a visa, just a travel pass given to most EU and Oceanic countries.

Also we have been legally advised that if she is in the US when I submit her visa, the US government can't deport her legally while it is being processed. But, just because they can't legally kick her out (if that is even true), it may still flag her passport as having overstayed a wavier, which could interfere later in the process.

So basically it comes down to a gray area. The simple factors are; my wife and I are legally married with all the documentation required. She is at this time legally with me in the USA. We are about to file for a visa for her. Is there any legal way that we do not have the spend the remainder of the processing time apart after her 90 day wavier expires? We have read that now that she is physically in the US and married to me we have a lot more legal leeway/loophole options to not be apart, but we just don't know and after all the other expenses can't really drop thousands more on a lawyer right now just to avoid a few more months of separation.

Any advice would be helpful, preferably experienced advice as we are both getting burned out on reading so much conflicting information lol. Thanks in advance.

A.

She must return home and you will need to wait out the process! Failing this as said before it will hurt her later on in the process if she does not! It could result in a lifetime ban from the U.S if she remains!

[Darnell 8,478]

....

Edited June 16, 2013 by Darnell