Confused on Adjustment of Status for Tourist Visa Holder Wife

[CCW 0]

Ok folks I am confused!! My wife and I married in Japan in 2011. She is a citizen of the Philippines and a permanent resident of Japan. We were living happily in Japan and we decided to go to the US in 2015. She was granted a Tourist (B-1/B-2) Visa. In late 2015 I moved back to the US and gained employment. My wife remained in Japan. She visited me in the US on here tourist visa. We decided to do an AOS. I read a USCIS document entitled " I am a U.S. citizen: How do I help my relative become a U.S. permanent resident?" (https://www.uscis.gov/sites/default/files/USCIS/Resources/A1en.pdf) In this pamphlet it explains the process for filing an I-130 with the I-485 concurrently. It gives fairly detailed instructions and appears to paint a fairly rosy picture on the process of my wife getting a green card while still on her tourist visa. My wife has an ITIN (individual taxpayer identification number), she is on the lease of our residence, I have her included on bank accounts, etc. However, I have a funny feeling that her road to a green card may not be easy and we may have violated immigration policy.

On this web page (Visa Journey) in the 'Guide' area there is a section entitled:

Step-by-Step Guide on How to File an I-130 for a Spouse Inside the US

One of the warning reads:

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

Am I missing something? I'm very confused. I am under the impression that the adjustment of status process is just that, to adjust status. That is what we are trying to do but I feel like she came here with the intent to immigrate. Is there any other way I can explain it?

My wife is departing the US for Japan and the Philippines due to here stay in the US approaching 6 months. We have purchased here a round trip ticket to return to the US after 1 month and then go back to the Philippines six months after that.

I would appreciate some candid talk on this issue. We have completed the AOS package of paperwork, but I am not willing to send it off until I feel good I am doing the right thing here.

Chris

[KayDeeCee 4,893]

Yes, entering the US on a tourist visa with the intent of staying and adjusting status is fraudulent.

If there was no intent when entering, then it would be fine to then have a change of mind once in the US and file for AOS. That does not seem to be how it is for your situation. You are talking about her coming and going and then having her return to file for AOS.

You can file for a spousal visa for her. You two can still visit each other while it is processing. I would be careful with having her stay for 6 months at a time and then return quickly. She could be flagged and denied entry for having immigrant intent when doing that. She is married to a USC after all, so they will notice if she is staying in the US more than outside of it.

~ Moved from AOS from Family Based Visas to What Visa Do I Need - OP unsure of correct immigration path ~

[CCW 0]

Yes, entering the US on a tourist visa with the intent of staying and adjusting status is fraudulent.

If there was no intent when entering, then it would be fine to then have a change of mind once in the US and file for AOS. That does not seem to be how it is for your situation. You are talking about her coming and going and then having her return to file for AOS.

You can file for a spousal visa for her. You two can still visit each other while it is processing. I would be careful with having her stay for 6 months at a time and then return quickly. She could be flagged and denied entry for having immigrant intent when doing that. She is married to a USC after all, so they will notice if she is staying in the US more than outside of it.

~ Moved from AOS from Family Based Visas to What Visa Do I Need - OP unsure of correct immigration path ~

Thanks for your prompt reply. I thought that our plan was too good to be true. I appreciate your candor.

Is the best option for my wife to depart the US as planned and begin the process outside of the US? Or is there a viable option while she is here?

Lastly, she has an option of returning, and staying in Japan or the Philippines to carry out this process, do you have any idea the best place for us to work the process between the two? Any way for me to get data on processing times?

[EM_Vandaveer 2,408]

Best for her NOT to leave, file AOS, EAD, AP now.

This, of course, assuming that this was NOT the intent at the time of her last entry.

Edited August 17, 2016 by EM_Vandaveer

[JFH 12,190]

The quickest route, now that she is in the country, is to stay and adjust status.

This is not always the most suitable route for individual circumstances. She will not be able to leave the USA once the process has started until she is granted advance parole. This can take up to 3 months. So, she will not be able to go back soon to untie her ties to Japan or the Philippines. Won't be able to get back for her belongings, return keys to the landlord, sell her car, etc, etc for some months. Also she won't be able to work for some months. Depending on your circumstances, that may or may not be feasible.

Edited August 17, 2016 by JFH

[KayDeeCee 4,893]

Best for her NOT to leave, file AOS, EAD, AP now.

This, of course, assuming that this was NOT the intent at the time of her last entry.

Very true. Not sure why I did not even think of that aspect when reading this the first time.

[Pitaya 2,577]

~One post removed for TOS violation, administrative action taken~

TOS violated:

Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method.

Pitaya

VJ Moderation

[Maria2012 16]

See my signature below to see my journey from B1/B2 to citizenship in 3 years.

[CCW 0]

The quickest route, now that she is in the country, is to stay and adjust status.

This is not always the most suitable route for individual circumstances. She will not be able to leave the USA once the process has started until she is granted advance parole. This can take up to 3 months. So, she will not be able to go back soon to untie her ties to Japan or the Philippines. Won't be able to get back for her belongings, return keys to the landlord, sell her car, etc, etc for some months. Also she won't be able to work for some months. Depending on your circumstances, that may or may not be feasible.

Thank you for that advice. Unfortunately she has to go back to the Philippines to visit her very sick mother. I wish she could remain here and we could do that. I didn't realize the implications of our current actions. I was under the impression that Adjustment of Status was just a simple process of getting a green card for someone who was in the US legally. I understand how an immigration case officer would deem our actions as skirting the law. I think we are going to go the old fashioned and legal route of having her return to Japan where she is a legal resident and start the process with the US consulate in Tokyo.

Thanks again for the advice You, along with everyone else on this site are amazing!!

[KayDeeCee 4,893]

Thank you for that advice. Unfortunately she has to go back to the Philippines to visit her very sick mother. I wish she could remain here and we could do that. I didn't realize the implications of our current actions. I was under the impression that Adjustment of Status was just a simple process of getting a green card for someone who was in the US legally. I understand how an immigration case officer would deem our actions as skirting the law. I think we are going to go the old fashioned and legal route of having her return to Japan where she is a legal resident and start the process with the US consulate in Tokyo.

Thanks again for the advice You, along with everyone else on this site are amazing!!

How soon does she need to leave? If possible, she can stay and file for AOS/EAD/AP and then request an emergency AP to visit her sick mother. She would need to provide documentation of the illness/emergency.

Whatever you choose to do, AOS or spousal visa, I wish you guys luck and a speedy, relatively hassle-free immigration process.

[CCW 0]

How soon does she need to leave? If possible, she can stay and file for AOS/EAD/AP and then request an emergency AP to visit her sick mother. She would need to provide documentation of the illness/emergency.

Whatever you choose to do, AOS or spousal visa, I wish you guys luck and a speedy, relatively hassle-free immigration process.

She has a ticket to leave the first week of October. Her departure may not qualify as an emergency. Her mother is comatose and has been for quite some. She is just going back for a routine visit.

I spoke to USCIS on the phone today and explained our situation. The attendant told me that based on what I was telling her, my wife would probably not have a problem having the AOS approved. However, she couldn't guarantee anything.

We have everything accomplished to send out the package, i'm just hesitating because of her upcoming trip and all the variables.

Thanks again for your help. You have been a big help in sorting out this process.