Visa Waiver Program filers of AOS

[UncleBeer 244]

I'm trying to puzzle out the legality of my situation. The wife & kids are still abroad, waiting for NVC to get around to processing their forms. A thought occurred: Why can't they fly over under the Visa Waiver Program (applies in their country) and upon arrival, file for Adjustment of Status? I found this USCIS memo from 2013:

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 U.S. 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.

The only hitch that I can see is possibly misrepresenting the nature of their visit at POE. If they don't say "immigration" when asked their purpose of visit, then it's visa fraud, and could potentially lead to a years-long ban.

Anyone have any insight into this?

[NigeriaorBust 4,087]

Having intent when arriving creates the fraud. If you already have papers filed be certain their visit intent will be questioned. Lie and be the one they decide to go after and your wife will be a permanent resident of another country. How often does it back fire , who knows. Are you willing to live with the result if it does backfire , only you know. PS you have posted on a site monitored by immigration.

[Ketsuban 1,034]

Be aware that should something go quite wrong and the AOS is denied, they have no way to appeal the decision since they would have come in on the VWP, which waives the right to appeal any removal proceedings.

Also, the amount of people who enter as a "tourist" but intend to stay is the reason why law-abiding people have such a hard time visiting their loved ones.

NVC are doing what they can right now to reduce their backlog. We're all tired of waiting, but remember there is a light at the end of the tunnel.

[Kathryn41 3,205]

While I can appreciate your frustration with the wait, doing what you suggest is immigration fraud. If your wife attempts to enter the US and fails or does not correctly declare her true intent, the outcome is likely to be that instead of waiting the time it takes for the paperwork to be processed, she will be faced with a permanent ban for mis-representation. Her immigration intent is already in the system. If she does declare her intent, then she will be denied entry until she has the correct documents. That in itself should tell you that this is not a viable option.

If you really love your wife and she is important to you, why would you even begin to consider jeopardizing your future life together in such a way? Good things are worth waiting for, even if it is the frustrating, annoying, bureaucratic dinosaur of the proper US immigration process.

[canadian_wife 1,822]

Usually this path requires lying to immigration. Purpose of the visit is not my concern question, it is the "how long will you be staying". If your family says "2 weeks" when in fact they intend to immigrate, that is the fraud

good luck

[UncleBeer 244]

If you really love your wife and she is important to you, why would you even begin to consider jeopardizing your future life together in such a way?

I had absolutely no intent of telling her to lie at POE, and I resent your insinuation. I posed my question because the INA memo I quoted seemed to make an exception to the "entering as a tourist" rule for immediate family members, and was hoping someone had some specific legal knowledge of this, and not just scolding remarks. Thanks anyway.

[Boiler 45,482]

On VJ it is delicate subject, have a consult with an Immigration Lawyer, you may be pleased about what you hear.

[belinda63 3,038]

That provision is usually for people who come to the US on the visa waiver program and meet someone or decide spur of the moment to get married. Even VWP are questioned on entry as to how long they intend to stay, the purpose of the visit, who they will be visiting or their general plans. All it takes is her fudging the answer to one question and she could be hit with a material misrepresentation. If that happens she could get a life-time ban from entering the US, even as an immediate relative of a USC.

[Boiler 45,482]

That provision is usually for people who come to the US on the visa waiver program and meet someone or decide spur of the moment to get married. Even VWP are questioned on entry as to how long they intend to stay, the purpose of the visit, who they will be visiting or their general plans. All it takes is her fudging the answer to one question and she could be hit with a material misrepresentation. If that happens she could get a life-time ban from entering the US, even as an immediate relative of a USC.

The ban get mentioned a lot, but no links to those posters who have it?

[Kathryn41 3,205]

The ban get mentioned a lot, but no links to those posters who have it?

Perhaps because our members know better and have not committed this type of immigration fraud.

From my pre-immigration life I do know of individuals who received permanent bans from committing immigration fraud. I worked for a Member of Parliament in Canada and we were approached a number of times by Canadians who had received permanent bans for committing both visa fraud and lying to US immigration, and wanted our help in getting the bans overturned - something, of course, we were totally not able to do. It happens - so why play fast and loose with something so important as your spouse?

Uncle Beer, I did not mean to imply that you would ask her to lie or that you had any intent of her lying to immigration and I apologize if that is how it came across. You were asking if this was an option based upon what you had read with regards to the VWP . I was trying to convey that with something this important you wouldn't want to take any sort of risk that could result in tragic unintended consequences.

[Brit Abroad 166]

If it was that easy, wouldn't everyone here who has filed for a spousal visa be doing it?

[UncleBeer 244]

If it was that easy, wouldn't everyone here who has filed for a spousal visa be doing it?

Note that I began my query asking about the legalities of the situation, trying to be sure not to run afoul of the law.

A real shame folks can't come here to post questions without getting a boatload of wiseacre comments in return.

[Boiler 45,482]

If it was that easy, wouldn't everyone here who has filed for a spousal visa be doing it?

Not everybody has access to the US, other than through a K1 etc.

You seem to be assuming that VJ is a reflection of all those moving here, it is not.

[XXXYYYZZZ 20]

The ban get mentioned a lot, but no links to those posters who have it?

Is there really such thing as a life time ban for denied entry? I keep hearing this but I'm beginning to doubt this is real.

[XXXYYYZZZ 20]

If it was that easy, wouldn't everyone here who has filed for a spousal visa be doing it?

Not necessarily. I filed the CR-1 and the wife has a B-2 visa. We visited the US a couple of times and left to continued the CR-1. It's not that we have high morals but the AOS didn't fit our situation. Financially it was better for us to wait and the wife wanted to attained English/driving school in her home country before making the move. AOS was not a fit for us. For others it's a solution to a complicated situation.

It is a loop hole; don't get upset that individuals use it. Go vote and get it changed. Mid term elections are coming up and immigration reform will be one of the top hot topics this time.