Adjusting status while on VWP - will we encounter issues?

[Ash.1101 1,756]

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.

Yep!

While people may not find it the morally right thing to do, it is something that is absolutely an option.

Here's a thread of people talking about how they overstayed and AOS'd. One person's husband overstayed 7-8 years and they had no issues. Thread has multiple people talking about 10+ year overstays with no issues getting their green cards. http://www.visajourney.com/forums/topic/302478-anybody-aos-from-overstayed-visitor-visa/

Edited November 18, 2016 by Ash.1101

[zuluweta 250]

^I don't believe the terms of service of this website allow giving advice to people to break immigration law.

[Lemonslice 4,991]

You have to wonder how healthy it would be for a newlywed teenager to be unable to study or work, being supported by the in-laws...

There is more than the immigration aspect to consider in their situation. AOS all you want... but I think you should also make sure you are planning for the future (yourself, your spouse and your marriage).

[Lemonslice 4,991]

^I don't believe the terms of service of this website allow giving advice to people to break immigration law.

When you are in the United States, adjustment of status is a totally legal process offered by USCIS to stay and get permanent residence.

Edited November 18, 2016 by Lemonslice

[Ash.1101 1,756]

^I don't believe the terms of service of this website allow giving advice to people to break immigration law.

He had no intent to marry when he came in, so he hasn't broken any laws. Yes, I'm telling him he CAN overstay, and he CAN apply for AOS off an overstayed VWP because he came into the country legally, but we also tell people every day that there is no timeline to AOS from a K-1 visa, which is telling people to overstay. This is common knowledge on the forums.

Again, this whole forum wouldn't exist if people didn't adjust from a visa OTHER than a K-1 visa. http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

If everyone had to leave because of marriage, no one would be adjusting from work, student, or tourist visas.

I personally am against someone coming in, marrying on a visitor visa, intent or no intent, but I'm not going to pretend that immigration law doesn't allow someone to overstay for YEARS and then forgive it upon marriage.

As long as you have entered the country legally, with any valid visa, you can marry and overstay, and then adjust status without any punishment from immigration. They can not deny you for marrying and staying, they can not deny you because of overstay. They CAN deny you on bonafide marriage, which is why I said they'll just have to survive the interview, but they will receive no punishment directly related to coming in on a VWP with intent to visit, deciding to marry weeks in, and then waiting to AOS until she is of legal age to do so.

Do people like it? No. Does disliking it make it not exist as a way to get your green card? No.

Edited November 18, 2016 by Ash.1101

[Nathan&Emily 10]

You have to wonder how healthy it would be for a newlywed teenager to be unable to study or work, being supported by the in-laws...

There is more than the immigration aspect to consider in their situation. AOS all you want... but I think you should also make sure you are planning for the future (yourself, your spouse and your marriage).

Yup I agree with you that might not be the healthiest option. However he asked for advice on whether AOS was legal and the best option and the answer is yes. Its not our place to question the state of his marriage, age, or any part of it. LEGALLY he can AOS. First dozen posts told him he couldn't and had to leave. I just hope the OP logs back in and sees the other options before choosing to leave the country.

[Lemonslice 4,991]

Yup I agree with you that might not be the healthiest option. However he asked for advice on whether AOS was legal and the best option and the answer is yes. Its not our place to question the state of his marriage, age, or any part of it. LEGALLY he can AOS. First dozen posts told him he couldn't and had to leave. I just hope the OP logs back in and sees the other options before choosing to leave the country.

I also said it was legal... Up to them to pick their path. However, there's more layers than just saying it's legally feasible. It's not responsible to say so without them knowing he'll be somewhat stuck in the USA for a long while (leaving before AOS is filed and AP granted, but after the overstay had been long enough to trigger a ban would not be fun. It has happened.)

Otherwise, look at my posting history, I'm all for AOS.

[zuluweta 250]

When you are in the United States, adjustment of status is a totally legal process offered by USCIS to stay and get permanent residence.

Except the U.S. Citizen is a minor and cannot even file papers right now. Suggesting to the foreigner to go out of status and wait till the petitioner is of age is still giving advice to break current immigration law. This advice to break immigration law is disallowed in this forum's terms of service, as far as I know.

Edited November 18, 2016 by zuluweta

[Ash.1101 1,756]

I also said it was legal... Up to them to pick their path. However, there's more layers than just saying it's legally feasible. It's not responsible to say so without them knowing he'll be somewhat stuck in the USA for a long while (leaving before AOS is filed and AP granted, but after the overstay had been long enough to trigger a ban would not be fun. It has happened.)

Otherwise, look at my posting history, I'm all for AOS.

Agree'd with this.

My husband was without work from Dec 2015 until July 2016 and it was pretty hard on him. And this is a guy who can play video games all day, it's all fun and games to say you wanna sit around and do nothing, until you actually can't do anything.

But yes, for a relationship to have to endure this at a younger age, yeah it's probably going to be pretty tough being able to do nothing.

[Nathan&Emily 10]

I also said it was legal... Up to them to pick their path. However, there's more layers than just saying it's legally feasible. It's not responsible to say so without them knowing he'll be somewhat stuck in the USA for a long while (leaving before AOS is filed and AP granted, but after the overstay had been long enough to trigger a ban would not be fun. It has happened.)

Otherwise, look at my posting history, I'm all for AOS.

Wasn't a dig at you. Just saying that the wrong advice was given earlier (unfairly so imo) and I did say he wouldn't be able to leave the country for approx 18 months.

[Ash.1101 1,756]

Except the U.S. Citizen is a minor and cannot even file papers right now. Suggesting to the foreigner to go out of status and wait till the petitioner is of age is still giving advice to break current immigration law.

You can come into a K-1 visa and marry as long as you're of legal age for the state you're marrying in, or have premission from a parent for younger than 16. The K-1 would put them in the EXACT same situation they are in now.

The reason for overstay does not matter, over stay is over stay no matter how it's done. Waiting for your K-1 married spouse to come of age, or waiting for your VWP married spouse to come of age.

If it's against immigration law for someone to come in and marry someone who legally can't AOS them, I'd actually like to see that, because that would really conflict against those who marry as a USC minor on K-1 visas.

If the OP had asked: "I married my girlfriend when I came in on a VWP. I planned on just a visit, but we talked about it and decided we should get married! We won't have the money to AOS for two years, is that okay?"

People are going to tell him yes, that's okay, and repeat everything we said about him not being able to work, etc.

But since the OP said "I married my girlfriend when I came in on a VWP, I planned on just a visit, but we talked about it and decided we should get married! She can't legally sign the I-864 until she's 18, so can I wait until she's 18 to AOS?"

What would happen on a K-1? "I came in on a K-1, married my fiance, but since she can't sponsor me in AOS, what should I do?" People aren't going to tell him to leave, they're going to tell him to eat overstay and AOS when he can. The same thing everyone tells everyone else when they overstay K-1 for financial reasons or what ever reasons.

While these are fine details to us, immigration isn't going to ask them why they took so long to AOS, they don't -care-. People here care because they want it done the way "everyone else" did.

The reason they overstay does NOT matter. Over stay is over stay, the reasoning does not matter, because USCIS does NOT care unless they came in ILLEGALLY.

Edited November 18, 2016 by Ash.1101

[Nathan&Emily 10]

Except the U.S. Citizen is a minor and cannot even file papers right now. Suggesting to the foreigner to go out of status and wait till the petitioner is of age is still giving advice to break current immigration law. This advice to break immigration law is disallowed in this forum's terms of service, as far as I know.

Except its NOT breaking immigration law. Being married to a US citizen means going out of status and the doing AOS is perfectly valid.

I came on a K-1 and got married and as my AOS hasn't been sorted yet and my I-94 has expired I'm out of status. Should I go home?

[Ash.1101 1,756]

Except its NOT breaking immigration law. Being married to a US citizen means going out of status and the doing AOS is perfectly valid.

I came on a K-1 and got married and as my AOS hasn't been sorted yet and my I-94 has expired I'm out of status. Should I go home?

My husband was out of status for a couple of months pre-AOS from a K-1. There are probably more people who went out of status at some point in their AOS process than there are those who filed while their I-94 was still valid.

[Nathan&Emily 10]

My husband was out of status for a couple of months pre-AOS from a K-1. There are probably more people who went out of status at some point in their AOS process than there are those who filed while their I-94 was still valid.

Exactly. All perfectly legal and as soon as AOS is filed you go into a period of overstay authorised by the attorney general and previous overstay is forgiven. As long as you enter legally with no immigration intent then its not illegal and hence not against the TOS of VJ

[zuluweta 250]

He had no intent to marry when he came in, so he hasn't broken any laws. Yes, I'm telling him he CAN overstay, and he CAN apply for AOS off an overstayed VWP because he came into the country legally, but we also tell people every day that there is no timeline to AOS from a K-1 visa, which is telling people to overstay. This is common knowledge on the forums.

I'm not debating what USCIS allows for AOS or what is legal per USCIS. I'm bringing up the terms of service of this forum that disallows giving advice to people who come to the U.S. on temporary visas (specially visa waiver and tourist visas) to break the law and go out of status then wait for an immigration benefit. And just a slight differentiation between K-1 and VWP, K-1 is dual intent. CBP assumes the K-1 visa entrant will be adjusting status which is not the case with VWP.