Need advice & probably help. Just got a call and am now worried about my new family.

[elmcitymaven 9,712]

Seriously. How many times does it need to be said.

It is not a loophole. It is a valid path for some under specific circumstances. I feel like we are having some sort of communication breakdown about what the term "loophole" implies. A loophole implies a gap in the immigration regulations that may be exploited (or, for a less emotive term, utilised) by a party to achieve their specific end whilst still being technically legal. There is no gap here. There is a valid and specified path for situations such as the OP's that has been spelled out clearly.

[ValerieA 350]

Loophole, and ambiguity or inadequacy in a system, such as a law or security which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system.

The ability to "change ones mind and marry and decide not to go home as you agreed to do as part of your admission to the USA" in order to AOS and not be separated from your loved on and not have to go,through the specifically designed immigration system... Is by definition using a loophole in the system...

http://www.merriam-webster.com/dictionary/loophole

loop·hole

noun \ˈlüp-ˌhōl\

: an error in the way a law, rule, or contract is written that makes it possible for some people to legally avoid obeying it

There is no error in the way the law is written that allows AOS. There is WRITTEN LAW that allows AOS explicitly. Your definition is flawed, although it still supports AOS from visitor visa or VWP as the intent of the system is to allow for it under the appropriate circumstances.

[Boiler 46,180]

No loophole.

[Terry J 50]

We keep beating the same dead horse.

[TAB2TAB 52]

I agree 200% with Boiler and The Maven (100% each) that the law as written allows for legal AOS from a visitor visa/VWP under appropriate and specific circumstances, and thus exercising this process as designed, is NOT a loophole. The challenge is effectively enforcing the law simply because a key condition for eligibility is the intent of the visitor - an intangible commodity. However, just because the law is challenging to enforce or can be broken does not mean the law itself has a loophole.

The VJ community does an incredible job of helping people navigate the complex legal process of immigration; we should focus on helping people through this process, and this sometimes includes alerting someone that they may be (unwittingly or not) taking a path that either breaks the law or may introduce legal scrutiny or other heartache. We do this very well.

On the other hand, we should try our best as a community to avoid speculating (or inviting speculation) whether or not someone's intent is to defraud the system, particularly if they have already clearly stated their intent and as long as their back story corroborates this. Shouldn't determining intent be the adjudicators' job, not VJ's?? Likewise, we shouldn't place value judgments on a fellow member's legal path to immigration, even if it allows them to have a shorter visa journey than ours. We all want our loved ones here with us as soon as possible.

Let's help the OP determine his best course of action, then let our fine United States officials make the judgment calls.

[Soul Mates 44]

OP, the "proper" way this should have been handled was for her to return home after getting married and her 6 months was over, then you file for her spousal visa. The fact that you either didn't know to do this, chose to skip that part, etc doesn't really matter now. She faces a ban if she leaves now so you have to AOS. But the fact that being able to AOS from a tourist visa makes it harder for others to get a tourist visa can't be denied. So with the laws being how they are, you skipped the separation, but don't be surprised if your MIL can't get a tourist visa because she can't qualify under the high standards. I would much rather prefer AOS from tourist visas be removed so that others may have an easier time getting a tourist visa. But it's an option and people use it, and others suffer. That's life.

[r060106 109]

I don't know why anyone would wish that others endure separation from their loved ones to conform to a bureaucratic process. USCIS even agrees that it would be overly bureaucratic to send people home just to have them come back.

For me, I wish for faster processing times for consular processes, so that separation for people who were not in the US be as short as possible.

But why can't we all be afforded the same option of adjusting status after marriage, even if we were married in another country? It makes no sense to me. Either way the alien spouse is going to go through most of the same paperwork process, so why not let them be with their spouse in the U.S. while it all gets processed? Why make them suffer and wait in agony? Of course, that's what the K-3 was made for, but they won't even let us use that anymore now will they? It's infuriating.

Having gone the K1 route myself, I would not go that way if I was doing it again.

Why is that?

[Boiler 46,180]

Because as you point out there are better options.

[r060106 109]

Because as you point out there are better options.

Oh ok. Thought you had a concrete reason in mind. Good point.

[Harpa Timsah 13,258]

But why can't we all be afforded the same option of adjusting status after marriage, even if we were married in another country? It makes no sense to me. Either way the alien spouse is going to go through most of the same paperwork process, so why not let them be with their spouse in the U.S. while it all gets processed? Why make them suffer and wait in agony? Of course, that's what the K-3 was made for, but they won't even let us use that anymore now will they? It's infuriating.

Why is that?

People who married abroad can file AOS if they find themselves in the right situation.

Why can't everyone just come and AOS? National security is an issue. I don't want criminals to come here, do you? Some people can't get visas, and some, though not all, are for good reasons.

[*Snowdrop* 604]

AOSing from a tourist or VWP entry riles up a lot of people on this site because there's often a suspicion that the poster is not telling the truth about intent. (not talking about the OP specifically)

I think it's because if you are the type of person who plans ahead, puts time and effort into research and is methodical about your goals etc, you can't understand or believe the mindset of those who genuinely do just 'decide to get married, and emigrate permanently' on the spur of the moment'

It doesn't mean those people are not genuine it's just so hard to understand how it happens.

So for example I dated my husband long distance between the US and the UK for three years before we got married - it then took another 16 months to get the spousal visa and emigrate.

Each year we were together I flew over to the US about 5 times - so that was about 15 trips where I could have 'decided to stay on the spur of the moment' but I could not have done that in a million years. I had a great job I needed to exit properly to retain good references and credentials within my industry, I needed to wrap up my living situation and deal with all my belongings, and most importantly I needed to say proper goodbyes to friends and prepare my close family for my departure etc.

Edited April 17, 2014 by *Lynne*

[r060106 109]

People who married abroad can file AOS if they find themselves in the right situation.

Why can't everyone just come and AOS? National security is an issue. I don't want criminals to come here, do you? Some people can't get visas, and some, though not all, are for good reasons.

I didn't say just anyone. That would be dumb. I'm referring to people who are already married and that the embassy has interviewed and verified are in a "bona fide" marital relationship. It should be the same as the K-3 without the USCIS portion. The embassy should give a spouse a temporary visa to be with their U.S. citizen spouse after the correct background check is completed and then they should be able to adjust status once in the U.S., rather than waiting and waiting and waiting for the long and often redundant spousal visa process. Like I said, the K-3 should be reinstated and we couples who got married overseas should be given the same chances that AOS and K-1 couples are afforded.

[Teddy B 17,252]

AOSing from a tourist or VWP entry riles up a lot of people on this site because there's often a suspicion that the poster is not telling the truth about intent. (not talking about the OP specifically)

I think it's because if you are the type of person who plans ahead, puts time and effort into research and is methodical about your goals etc, you can't understand or believe the mindset of those who genuinely do just 'decide to get married, and emigrate permanently' on the spur of the moment'

So for example I dated my husband long distance between the US and the UK for three years before we got married - it then took another 16 months to get the spousal visa and emigrate.

Each year we were together I flew over to the US about 5 times - so that was about

That describes me pretty well, and we still got married spur of the moment and did AOS. My wife and I had done the long distance relationship for about 2 years. My wife came to visit during the summer for 2 months, about a week before she was to leave, I proposed. We decided we didn't want to be apart any longer, so she decided to stay and we set up the wedding. We were married 3 months later and filed for her AOS. She was able to tie up most loose ends while she was here in the states. She got her greencard 3 months later.

Nothing illegal or improper about it and no loopholes either. We used the legal avenue given to us by USCIS.

[*Snowdrop* 604]

That describes me pretty well, and we still got married spur of the moment and did AOS. My wife and I had done the long distance relationship for about 2 years. My wife came to visit during the summer for 2 months, about a week before she was to leave, I proposed. We decided we didn't want to be apart any longer, so she decided to stay and we set up the wedding. We were married 3 months later and filed for her AOS. She was able to tie up most loose ends while she was here in the states. She got her greencard 3 months later.

Nothing illegal or improper about it and no loopholes either. We used the legal avenue given to us by USCIS.

Well, then it was actually your wife who had to take the huge leap of staying and dealing with any consequences from back in her home country by doing so. I'm glad it went smoothly for her.

I wasn't trying to say it was improper to take the path you did. I'm just always surprised by how many people are able to do that.

Also I am often a little cynical about some of the stories on here (not you or the OP) because while I was waiting 16 months for my visa, I had two colleagues who got married after me deliberately do the VWP AOS (with intent when they entered the US - we had a leaving party for one guy at the office) - and they kept telling me I was crazy for not doing it the same way as them.

Mind you that guy was divorced and back in the UK before I even got my greencard so I think he was a little impulsive in general.

[Teddy B 17,252]

Well, then it was actually your wife who had to take the huge leap of staying and dealing with any consequences from back in her home country by doing so. I'm glad it went smoothly for her.

I wasn't trying to say it was improper to take the path you did. I'm just always surprised by how many people are able to do that.

Also I am often a little cynical about some of the stories on here (not you or the OP) because while I was waiting 16 months for my visa, I had two colleagues who got married after me deliberately do the VWP AOS (with intent when they entered the US - we had a leaving party for one guy at the office) - and they kept telling me I was crazy for not doing it the same way as them.

Mind you that guy was divorced and back in the UK before I even got my greencard so I think he was a little impulsive in general.

My improper comment wasn't aimed at you, it was for those who have said it's improper or it's a loophole to marry and AOS while on a tourist visa.

There's no doubt that this avenue is abused by people who know full well what they are doing ahead of time. Hopefully the system we have in place is able to deter most of the people that attempt to do so.

ETA: My wife is also one who plans ahead.

Edited April 17, 2014 by Teddy B