Adjusting status while on VWP - will we encounter issues?

[AliaReynolds 0]

Hey Everyone,

After dating my Girlfriend for almost two years, I had finally saved up enough money to take a trip over to America to see her. As I am an Australian resident, I was eligible for a visa waiver. We had planned on taking the K-1 route and had come to the mutual agreement that we wanted to be with each other in person to discuss how we would go about it. After being in the US for about two weeks, we had briefly discussed the potential of getting married. Another week had passed and my girlfriend (now wife) surprised me on our 2nd anniversary with a proposal, to which I said yes.

My wife is 16, nearly 17 years old. I am 18. With her mothers permission we were married at a courthouse in Missouri. After having a discussion with her mother, we have been thinking about submitting an i-485 and i-130 concurrently, would this enable me to stay with my wife legally while the application is being processed? And do you think we would have any issues with USCIS regarding our case?

As far as our financial situation goes, My wife has a part time job, and my mother in law has said that she would be willing to be a financial support for the two of us until we are able to support ourselves.

I would appreciate some suggestions on what to do, as I don't want to encounter any issues.

Thank you!

• 0

• Quote
• MultiQuote
• Edit

Edited November 17, 2016 by AliaReynolds

[Unlockable 7,316]

So you are the beneficiary (immigrant)?

I'm not sure if she has to be 18 to petition for you. Maybe someone with more knowledge can chime in.

Edited November 17, 2016 by NuestraUnion

[Hypnos 6,578]

Technically she can petition you now, she just can't sign the I-864 until she is 18, which is a requirement, effectively making 18 the minimum age a US citizen can petition a spouse.

Returning to Australia and then pursuing a CR-1 immigrant visa once your wife turns 18 is the cleanest solution.

Edited November 17, 2016 by Hypnos

[AliaReynolds 0]

I am indeed the beneficiary. Would we be able to use her mother as a financial support? Being married I understandably would not like to have to leave, so seeing as she is the person who signed permission for the marriage, would they accept her as the financial support?

Edited November 17, 2016 by AliaReynolds

[Pitaya 2,577]

~Duplicate posting removed~

~Please refrain from multiple posting of same topic~

Pitaya

VJ Moderation

[Hypnos 6,578]

Your mother-in-law can certainly be the joint sponsor, but the primary sponsor must always be the petitioner. This means your wife, even if her income is $0, must complete an I-864 for you to either be able to AoS or receive an immigrant visa. And she must be at least 18 in order to be able to sign an I-864 since it is a binding contract, which minors cannot sign.

There is no way around that requirement. This means that you cannot file anything for at least a year, regardless of whether you remain in the US illegally or return to your country of origin.

Edited November 17, 2016 by Hypnos

[AliaReynolds 0]

Thank you... Heart broken.. But I appreciate your help

[Starkilla09 366]

Hypnos is spot on. The cleanest way will be for her to file a CR1 visa for you unless you want to risk being in the U.S. unlawfully for almost a year till your wife turns 18. Not worth the risk considering you can still visit while the CR1 process is going on. You'll just need to show ties to Australia to CBP upon admission to make sure you won't stay longer than admitted. It'll take a year for the process to finish, so you can get an immigrant visa overseas and enter as a permanent resident.

[JFH 12,191]

Since you arrived with no intention of staying, I assume you still gave your job and somewhere to live, etc back home? Be thankful for the VWP that makes visiting easier than those countries that do not have that privilege.

You're not the first one to have to live apart from their spouse during this process. You'll survive.

[mallafri76 1,012]

Also, if you do the CR-1 route, remember that the I-864 is not sent in until you're at NVC. Please correct me if I'm wrong, but that should mean that you can start preparing the I-130 petition and send it in soon. That part alone takes about six months. Once you're at NVC, you can do what you can there like choose agent, pay fees etc, and then once your wife turns 18, she signs and sends in the I-864.

[Russ&Caro 1,549]

Also, if you do the CR-1 route, remember that the I-864 is not sent in until you're at NVC. Please correct me if I'm wrong, but that should mean that you can start preparing the I-130 petition and send it in soon. That part alone takes about six months. Once you're at NVC, you can do what you can there like choose agent, pay fees etc, and then once your wife turns 18, she signs and sends in the I-864.

This is very good advice from mallafri76. It can speed up the time, perhaps as much as 6 months, that it requires to process a CR1 application. You might be able to join your wife soon after her 18th birthday.

Another thought is emancipation. Perhaps your wife can apply for emancipation within the state she resides. If successful, then perhaps you can go the Adjustment of Status route, as she would no longer have a legal guardian and be able to execute documents for herself, even at 17

EDIT: In case it isn't clear, you're going to have to consult with an attorney on the emancipation. This could get costly. Plus, the AOS route is more costly than returning to Australia and going the CR1 route. If money is tight for both of you and her mother, then you really need to factor that into your decision.

Edited November 17, 2016 by Russ&Caro

[Hypnos 6,578]

True, although the timeline wouldn't be much changed, nor would the immediate problem be resolved.

[Nathan&Emily 10]

As the spouse of a US citizen would any overstay not be forgiven when filing the AOS in a years time? Seems to me that if you marry on a K-1 you have the same situation where you're married to a US citizen but out of status and everything i hear says that's okay even if you file AOS 5 or 6 years later. Would that not be the same case here? There was no immigration intent so entry was legal and not misrepresented and as he is now married to a US citizen surely is in the same out of status as a K-1 would be?

[Ash.1101 1,756]

As the spouse of a US citizen would any overstay not be forgiven when filing the AOS in a years time? Seems to me that if you marry on a K-1 you have the same situation where you're married to a US citizen but out of status and everything i hear says that's okay even if you file AOS 5 or 6 years later. Would that not be the same case here? There was no immigration intent so entry was legal and not misrepresented and as he is now married to a US citizen surely is in the same out of status as a K-1 would be?

Technically yes.

Generally though, ESPECIALLY, on VJ, people frown on others who come in on VWP or visitors and decide to get married and adjust. Kind of a "Well I had to go through this and others did, so you should too!" mindset.

But yes,he had no intent. Overstay would be forgiven, they most likely (99%) wouldn't have an auto-approved green card and have to survive the interview. Other than the K-1 visa meaning he came into the country purposely to marry, his over stay from the VWP while waiting for her to be old enough to petition him wouldn't be treated any differently than his overstay if he came in on K-1 and was waiting for her to be old enough to petition. He legally came into the country. Overstay is overstay, reason doesn't matter.

We've had people on VJ be out of status for 10+ years and then AOS with little to no problem.

Remember though, you won't be able to drive or work. You can't really do anything and you'll need to avoid any trouble. It may drive you crazy.

Again, while it's frowned upon and we may not like it, it doesn't hurt them -that- much to do it. We have a forum for adjusting from things that AREN'T K-1 for a reason. LOL

Now if the system should be like that, make it almost easier to come in and marry and stay versus MAKING the married person leave and do CR-1, that's a whole other story and debate.

Edited November 18, 2016 by Ash.1101

[Nathan&Emily 10]

Technically yes.

Generally though, ESPECIALLY, on VJ, people frown on others who come in on VWP or visitors and decide to get married and adjust. Kind of a "Well I had to go through this and others did, so you should too!" mindset.

But yes,he had no intent. Overstay would be forgiven, they most likely (99%) wouldn't have an auto-approved green card and have to survive the interview. Other than the K-1 visa meaning he came into the country purposely to marry, his over stay from the VWP while waiting for her to be old enough to petition him wouldn't be treated any differently than his overstay if he came in on K-1 and was waiting for her to be old enough to petition. He legally came into the country. Overstay is overstay, reason doesn't matter.

We've had people on VJ be out of status for 10+ years and then AOS with little to no problem.

Remember though, you won't be able to drive or work. You can't really do anything and you'll need to avoid any trouble. It may drive you crazy.

Again, while it's frowned upon and we may not like it, it doesn't hurt them -that- much to do it. We have a forum for adjusting from things that AREN'T K-1 for a reason. LOL

Now if the system should be like that, make it almost easier to come in and marry and stay versus MAKING the married person leave and do CR-1, that's a whole other story and debate.

Pretty much what I thought. Seemed a bit unfair that all the posts were telling the OP to leave the country and file CR-1. Once he did that this option ( a perfectly valid option) would be unavailable to him.

OP - You should be able to remain out of status until your wife is 18 and then file the I-465 and I-130. Doesn't matter if others have had to wait that shouldn't impact on impartial and fair advice to yourself and is not relevant to YOUR situation.

However you should be aware you will NOT be able to leave the country until Advanced Parole is acquired which would likely be in 18 months approx.

Edited November 18, 2016 by Nathan&Emily