married in us, left,then returned on vwp. Can i file a I-130 and adjust in US?

[Harpa Timsah 13,258]

OK I feel real stupid,sick to my stomach right now.We thought that upon the spouse leaving the US without advance parole, before the GC, everything would be cancelled by immigration anyway.So what about the 485,764, would that part of the package also still be valid upon leaving US before GC? And what affect will all this have on a future CR-1 petition or a future VWP visit?

Seems like all of this may be enough to doom us now. We are now out $2000 and looking at a long process.Go ahead hit me again,I deserve it.

You have floundered every step of the way. I hope now that you realize this and take our advice and pursue the CR-1 visa, don't try to commit visa fraud, and be done with it.

You floundered when you tried to AOS and didn't file for I-131.

When you filed for AOS without committing to staying in the US for a few measly months.

When your spouse left the country in the middle of the process.

You are floundering now by trying to come back on the VWP and file for AOS again.

I seriously doubt your spouse will be allowed to enter the US now at all knowing that s/he already came on the VWP and filed for AOS.

And the worst is canceling I-130. That was colossally.... well...

This is what should have happened: Your spouse left with her AOS pending. The I-485 and related forms would have been abandoned, but the I-130 could remain. The I-130 lives separately from the I-485, since the I-130 established a familial relationship. The I-130 could have been approved on its own and sent to the embassy in your spouses country for an interview for a spousal visa. You applied in April and now it is June, so your I-130 could have been pending for 2+ months already.

[CC90 90]

OP's question has been answered. Think this thread should be locked.

[healthteacher 18]

As far as future visits on the VWP receiving more scrutiny,why? Will customs/immigration have that information that we filed and withdrew the I-130, or that we are married? Would they possibly deny entry for those reasons?

[Dave&Roza 748]

As far as future visits on the VWP receiving more scrutiny,why? Will customs/immigration have that information that we filed and withdrew the I-130, or that we are married? Would they possibly deny entry for those reasons?

Why? Because there is a USC spouse involved that is living in the US so the possibility of entering the US and then adjusting status is very real. Yes and Yes. The name will come up on the system with a formerly applied for spousal visa. The CBP will now ask, "Are you married to a USC?" "Does that USC live in the US?" "Are you visiting that USC?" Then I bet dollars to donuts that the passport will be stamped with no adjusting of status allowed IF they are allowed to enter, otherwise a flat out denial will be issused and now you can kiss travelling on the VWP good-bye. A tourist visa will be required. Depending on how the questions are answered can open up a whole other can of worms given your disposition to not following the rules--hypothetically speaking of course.

As I said before, choose wisely,

Dave

[healthteacher 18]

Dave, as far as adjusting status in the US,since we are already married and the spouse left the country then re-entered on a VWP, wouldnt that be impossible to do? WE plan to go the CR-1 route now but you seem to be saying that as long as the spouse is in the US she can be allowed to adjust status in US.I thought that was impossible to do under our circumstances.

Also as far as my "disposition to breaking the rules" which rules have I broken so far?

[Harpa Timsah 13,258]

Dave, as far as adjusting status in the US,since we are already married and the spouse left the country then re-entered on a VWP,

You said your spouse has not reentered on the VWP, that it was a "hypothetical." Which is it?

[healthteacher 18]

She has not re-entered as of yet, but we were under the impression that visiting under the VWP would still be allowed while our CR-1 is being processed.

[Ivy. 113]

She has not re-entered as of yet, but we were under the impression that visiting under the VWP would still be allowed while our CR-1 is being processed.

Visiting, yes. It means the spouse leaves in max 3 months.

Visiting your spouse and then deciding oh, conveniently, not to go home, not so much.

[UK-USA-K1 128]

She has not re-entered as of yet, but we were under the impression that visiting under the VWP would still be allowed while our CR-1 is being processed.

Coming and marrying then staying to adjust status makes it harder to prove intent to immigrate, the fact that you attempted to adjust status before, then she left, means if she came over on the VWP again and tried to stay, there would be sufficient background to prove intent to immigrate and that would result in a high likelihood of a ban.

Right now the ONLY legal recourse is to file the way people here have said and do it from abroad. She can visit during the process but will have to get a proper visa to immigrate, and not overstay in between. Anything else is illegal

Edited June 24, 2013 by UK-USA-K1

[Harpa Timsah 13,258]

I do not think she will be let in because they know she applied for AOS last time. DId she overstay her VWP 3 months when you were waiting for AOS? How long was it pending before she left?

[healthteacher 18]

No Harpa, There was no overstay,and never has been in any of the previous visits.We sent in our package about a month before she left the US.The entire stay was less than 90 days.Everything was still in the review stage when the I-130 was withdrawn.

[healthteacher 18]

This is sounding more dire all the time.So now the consensus is she will not be allowed to visit on the VWP either?

[Dave&Roza 748]

This is sounding more dire all the time.So now the consensus is she will not be allowed to visit on the VWP either?

No, I would say the consensus is that it will be very hard for her to come on the VWP and she may need a tourist visa instead of the VWP. She has already shown she wants to stay in the US with her US husband by filing for the I-485. Had she remained in the US or had filed for and received the AP card, all this would not be an issue. Now she is married to a USC who lives in the US and she is coming to "visit". The CBP person is going to see this "visit" as a means to get into the US and then file for AOS based on marriage to a USC. It is very possible to do this. That is one of the loop holes in the US immigration law. The hard part for you and her would be to prove that after filing for AOS before now you just decided to stay. So your intent is in question and based on the previous AOS filing your intent was to use a non-immigrant visa for the purposes of immigrating--that is where the fraud comes in.

Now, she can visit but it will be much harder. When questioned about the visit she needs to be upfront and say that she is visiting her USC husband for a short time while the spousal visa is processed. Showing that you are going about it the correct way and being upfront will go along ways to show that you do not intend to use the tourist visa or the VWP as a means to immigrant to the US. I personally would apply for a tourist visa so she knows that she will be admitted rather than take a chance on getting denied entry and have to go back to the UK using the VWP.

Good luck,

Dave

Edited June 24, 2013 by Dave&Roza

[healthteacher 18]

ok so what happens if she is denied entry on her visa waiver? Will she be able to try again later?And what happens to people that our turned away,are they expected to buy a new ticket home on the spot? What happens to people if they dont have the funds available for a return flight? Does immigration put them up for the night? Just wondering if anyone has had to endure this.

[bigdog 376]

Why don't you see an immigration attorney. Don't shop for an answer or worse.