AOS application for VWP entrants with updated Nov 2013 Policy Memorandum

[bluesunshine 15]

Hi all, sharing 2 articles which I've just found which I think may help to shed some light especially for people in a similiar situation as me.

From http://www.us-immigration.com/blog/adjustment-of-status-for-relatives-admitted-under-the-visa-waiver-program

"According to the new policy, those who enter into the United States under the VWP can now adjust their status to permanent resident status if they are immediate relatives of US citizens.."

From http://www.nolo.com/legal-update/when-visa-waiver-entrants-can-apply-adjust-status-the-us-uscis-issues-clarification.html

"The USCIS memo makes some important points, however, which VWP entrants applying to adjust status should consider.

One is that submitting an adjustment of status application does not protect applicants from enforcement proceedings and removal.

Another important point is that, unlike in most adjustment of status cases, a USCIS denial of a VWP applicant’s case is final."

From what I'm reading, the Nov USCIS memo allows VWP entrants who are immediate family members of U.S. citizens to apply for the AOS but if Immigration and Customs Enforcement decides to arrest me, I will be escorted out immediately. And I will also have no chance of appealing if the USCIS denies my case..

[Avery Cates 1,141]

It is not illegal to file AOS from VWP and the issue of fairness is opinion and debatable.

Very well, anyone intending to do so should claim they will be to their CBP agent prior to entering the country.

Edited March 11, 2014 by Avery Cates

[Boiler 46,176]

hi all!! thanks for the discussion!! I absolutely didn't mean to start a topic that would cause such a heated discussion...but i definitely see the points raised by both of you.

Maybe I should have rephrased my intentions..I will be entering the U.S on the VWP but I have already purchased a return ticket back to Singapore within the 90-days period, and I will return home to Singapore on my specific return date. I have no intentions of overstaying, and will leave & enter U.S. within the 90-days period as required legally.

The purpose of going to the U.S. is to also to visit my stepchilden & in-laws, and also accompany my husband while he sets up our new home.

So yes, there is truth in that I have intentions of immigrating to U.S. before entering the U.S., but regardless of whether I will be filing for the AOS or not, I will be leaving U.S. within the 90-days period before re-entering legally.

We could have applied for my visa in SG but due to the sudden job relocation (the job offer came in early Jan'14 and he needs to start work by mid March), we have no time right now to prepare for it. On top of that, we also assumed that it would be easier for us to apply when we are in the U.S.

But now that I'm doing my research on the I-130 and AOS, it seems like it's illegal to apply for the AOS while on the VWP, and that got me really worried.

The question now with the new policy memorandum, is it still illegal for me to file for AOS while I'm visiting on the VWP, given my situation?

I think people thought you were entering and staying and responded accordingly. You can be anywhere when you apply for an Immigrant Visa.

[aussie_jason 195]

Applying for an Immigrant Visa wouldn't be adjusting status.

[kitthekat 1,317]

Hi all, sharing 2 articles which I've just found which I think may help to shed some light especially for people in a similiar situation as me.

From http://www.us-immigration.com/blog/adjustment-of-status-for-relatives-admitted-under-the-visa-waiver-program

"According to the new policy, those who enter into the United States under the VWP can now adjust their status to permanent resident status if they are immediate relatives of US citizens.."

From http://www.nolo.com/legal-update/when-visa-waiver-entrants-can-apply-adjust-status-the-us-uscis-issues-clarification.html

"The USCIS memo makes some important points, however, which VWP entrants applying to adjust status should consider.

One is that submitting an adjustment of status application does not protect applicants from enforcement proceedings and removal.

Another important point is that, unlike in most adjustment of status cases, a USCIS denial of a VWP applicant’s case is final."

From what I'm reading, the Nov USCIS memo allows VWP entrants who are immediate family members of U.S. citizens to apply for the AOS but if Immigration and Customs Enforcement decides to arrest me, I will be escorted out immediately. And I will also have no chance of appealing if the USCIS denies my case..

I think you are misunderstanding that section. To be fair, the wording is a little misleading. However, notice this line in the article?

"This applies only to those who were last admitted into the United States under the VWP."

It applies to those who previously entered the USA on the VWP and are now in the US and out-of-status. It does not apply to those who are currently outside the US, wish to enter on the VWP and adjust status.

There is also this, stated in the NOLO article you linked:

"Such a path toward a green card will come to an abrupt end, however, in cases where the use of the visa was fraudulent; i.e. a temporary visa was misused specifically for the purpose of getting into the U.S. to apply for a green card."

The Department of State has some examples of activities that are "not permitted on the VWP and require visas for travel to the United States". Permanent residence is listed as one of the examples.

I can understand that being separated from your husband is not ideal...but you cannot use the VWP as a means to enter the US with the intent to adjust status subsequently. If you had followed your husband to the US on the VWP and then while you were in there, changed your mind, and decided to stay, then you could have legally adjusted status. However, your intent is clear in this situation. Suggest you look into filing the I-130 petition asap to avoid further delays in getting your visa. Good luck.

[bluesunshine 15]

Thanks all for the discussion! I think the most likely scenario right now is for me to just enjoy my upcoming trip the U.S. and only apply for the I-130 when I'm back in Singapore.

Just to reiterate what I said in my last post..I know alot of folks here thought that I was planning to ENTER and STAY here indefinitely (i.e. bring my cat/dog/entire life of suitcases with me) to the U.S. on my VWP, I wasn't. That's illegal and I know it. I am only going to spend 90 days (or lesser) here before returning home to Singapore.

I still have proof of domicile in Singapore (i.e. I have a home, I have bank accounts, local Singapore bills, local Singapore phone number) and I'm not giving any of this up prior to my upcoming trip to the U.S. because I intend to return home to Singapore.

Intially, I had thought that it would be easier for me to apply for the AOS in the U.S. because of time constrains due to my husband's sudden job relocation. This is our initial assumption and it is our fault cause we did not do our research.

But now, based on all the information & research I'm doing, that seems to be a very risky choice. I have no intentions of doing this as a shortcut, and I know that many folks are separated because of this and I have no wish to make it seem like my initial plan to apply for AOS while on VWP is making it unfair for others.

So yes, there is truth, in the long-term perspective, before I plan to enter the U.S., I do have intentions of eventually moving to U.S. to be with my husband (which wife would intend to be seperated from her husband??) But when I enter the U.S. for my upcoming trip, I have no intentions of staying for good. Regardless of whether I file for AOS when I'm in the U.S. or not, my intention is to return to Singapore within the 90-days period before flying in from Singapore, legally, to accompany my husband.

Edited March 11, 2014 by sophiesworld

[kitthekat 1,317]

So yes, there is truth, in the long-term perspective, before I plan to enter the U.S., I do have intentions of eventually moving to U.S. to be with my husband (which wife would intend to be seperated from her husband??) But when I enter the U.S. for my upcoming trip, I have no intentions of staying for good. Regardless of whether I file for AOS when I'm in the U.S. or not, my intention is to return to Singapore within the 90-days period before flying in from Singapore, legally, to accompany my husband.

"regardless of whether I file for AOS when I'm in the US or not"

Okay, I think that is where some of the confusion lies. If you enter on the VWP and file to adjust status, then the assumption is that you will be staying in the US. Adjusting status is for the purpose of obtaining permanent residence. If you start the process but leave before you obtain either advance parole, or the green card, then your adjustment will be considered abandoned and you'd have to start over. There are also steps that require your presence in the US (biometrics appointment, for example). If you plan to return to Singapore after your trip, then this route (aside from the whole 'intent' debate) does not seem to suit your needs.

If you are a spouse of a USC, then the route you would be taking is for your hubby to first file the I-130 petition which then allows you to apply for an spousal visa (either CR1 or IR1 depending on how many years you've been married) at the US embassy in your country. Once you get this visa, there is no need to adjust status anymore. When you enter the US on the IR1/CR1, CBP will give you a stamp in your passport that acts as a temporary green card before you receive the actual card in the mail. The stamp will also allow you to work in the US and travel out of the US.

The I-130 can be filed anywhere, anytime. You can do it before your trip, during your trip, after your trip. Check out this guide for help assembling the package: http://www.visajourney.com/content/i130guide1