Can I file for AOS as a tourist?

[Blahbleh 0]

Hi there, I'm compeltely new to looking into the AOS path. I've looked through the guides but I still have some questions that maybe some helpful folks could clear up?

I came to the USA to visit with some friends for two weeks holiday, and as I'm sure you guessed I met The One while I was here. I ended up staying longer than the two weeks, since I entered on the visa waiver program and had 90 days stamped in my passport. We decided to get (and got) married before I go home in two weeks (when the 90 days run out), but an employee at my wife's workplace told her that we could file for AOS instead of leaving. Since the idea of not having to split up for a while is appealing, for the last few days i've been researching this information, but I've found a lot of contradicting information.

The instructions for form I-485 says that you are not allowed to AOS if you entered under the visa waiver program "unless you are an immediate relative (spouse, child, etc.)"; so since I am married to a US Citizen then I understand this to mean I am allowed to file AOS, is that correct? Sorry if it seems clear, I'm just confused because everything I've read online ranges from you can to you cannot, it's illegal and so on.

I also found this policy memo regarding AOS and VWP from November 2013 that i think says its not allowed anymore even if you are an immediate relative (I think?) http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

To top it off, on the first page of form I-485 under Part 2 I'm not sure what choice you are suppose to select if you are filing AOS from VWP, there doesn't seem to be anything appropiate.

If anyone has any thoughts I'd really appreciate the help, thanks!

[JohnR! 5,495]

Yes, you can file for AOS. However, you will not be able to go back home for a good 3-4 months, until you have your AP on hand, the presumption being that you would need to return home to tie up the lose ends of the life you left behind.

Congrats and good luck!

[aaron2020 11,651]

You can adjust status in the US.

You are reading the PDF that you linked incorrectly. Go to the second page where it says that Immediate Relatives who arrived on the VWP can adjust because they are exempt from the general prohibition for a VWP participant to adjust.

"INA section 245©(4) renders aliens admitted under the VWP ineligible to adjust status to that of a person admitted for permanent residence. This provision, however, includes an exception for immediate relatives of US citizens. Thus, an individual admitted under the VWP who is also an immediate relative is not precluded from seeking adjustment of status, even after the VWP period has expired."

You as the spouse of a US citizen are an immediate relative of a US citizen. You are not precluded from adjusting = which means you can apply to adjust.

[Harpa Timsah 13,258]

Yes, and for I-485 part 2, the reason is choice A.

[Blahbleh 0]

Wow, thanks for your quick replies everyone!

Gegel, thanks for the info and that is a very good point, that might be too long for me to leave my affairs at home unattended -- I'll have to consider my options, here.

Aaron2020, thanks for the correct reading of that. I guess the only thing in that document that concerns me is where it says even an immediate relative that entered on vwp, the AOS is still up to discretion -- I guess it will all factor in how strong the paperwork is.

Harpa Timsah, thanks for clarifying that! I'm guessing the paperwork that the A choice requires is the form I-130 thats filled concurrently? Im currently following this guide for info, so hopefully its the right one to use. http://www.visajourney.com/content/i130guide2

Thanks again everyone!

[jdh 103]

Wow, thanks for your quick replies everyone...

...I guess the only thing in that document that concerns me is where it says even an immediate relative that entered on vwp, the AOS is still up to discretion -- I guess it will all factor in how strong the paperwork is.

AOS is always discretionary, but as long as you have a legitimate relationship and carefully put your package together there is nothing to worry about.