VAWA & AOS (merged)

[Cadence 20]

I can't say for sure because it's at the discretion of the CBP. All you can do is arm yourself with enough ties/evidence that you'll return to the UK and follow proper legal procedures. Showing them of your previous entries/exits that were on time, lease/bills/work etc can help, but ultimately no guarantees. 

[Unlockable 7,314]

Yes you can travel to the US to handle your things. But earlier you indicated you wanted to establish yourself here first before bringing your son. That is why i asked how were you going to do that without a GC. You can't work on the VWP and your time inside the US will be limited to 90 days. But for handling legal obligations you will be fine.

 

Basically without the GC and with the VWP you WILL be able to come to the US but there will be limitations. Also, there will not be a guarantee that you be let in at any given trip.

 

Good look on your journey.

[Boiler 45,522]

The situation does seem extremely strange to say the least, also I can not imagine what documents etc would require lengthy visits.

 

I agree with an earlier comment about jurisdiction and child custody, often it is difficult to persuade a US Court to take a child out of State never mind out of Country.

 

Obviously there must be some other factor involved here that the OP has chosen not to share.

 

I think most of the comments about VAWA were for them basis that there would be some logic to the process, there are many many threads on this site that show that not to be the case.

 

I have seen people apply for VAWA outside the US, not come across people visiting whilst it is in process but can not think of a reason why that should not be possible.

[Hopeful diva 99]

15 hours ago, alexndillon2125 said:

I gave up my lpr because I had no choice. I put my life in danger every day for 2 1/2 years while living with my husband. I was only able to get out because I found out I was pregnant and couldn't risk him killing my child like he threatened to do on several occasions. It will not look odd to return, because I had no choice but to leave to save the life of my child. 

We understand that you were trying to protect your self but the biggest mistake you made was abandoning your LPR status. You could have easily gotten a restraining order against him and moved to a different city or state instead of moving out of the country and abandoning ur LPR status. You can apply for vawa but your chances of getting your status back seems very slim. Also consult with a lawyer to see what your filing options are 

Edited January 27, 2017 by Hopeful diva

[Villanelle 4,122]

I dunno, maybe its just me but I dont see anything strange in what she has posted (?)

 

I think what a lot of people dont understand is the mentality of an abused spouse who is also a parent.Some people have outrage at the thought of a battered spouse allowing or wanting contact between the abuser and the kids- and thats understandable. Often times the battered spouse feels differently. The courts also feel differently. They typically take the position of 'family unity' and will allow or require contact between the abuser and the children- albeit supervised. The courts do not like to block relationships between parents and children. 

 

So while some may not be okay with her wanting or allowing contact- she is attempting to do it the responsible way- under supervision. I would be concerned if she wasnt or was seeking to re-establish a relationship between her and him. 

--

As for VAWA- I really hope Sandra provides some input. While there is nothing wrong with filing VAWA from overseas- an issue may be that the abuse occurred in the US (which is required for VAWA) but said abuse occurred while she was an LPR. I honestly do not know if that makes a difference. I dont believe the VAWA codes require you to be 'out of status' to qualify but the codes are complex. Sandra most likely will be able to provide an answer.

 

VAWA can be filed from the US or overseas. However since she is currently overseas she CAN NOT enter with the purpose of filing for status- it doesnt matter if its status through VAWA or status through a spousal visa. You simply can not enter as a tourist with the intentions of adjusting. Sadly this is where being informed shoots you in the foot. If she had entered as a tourist for other reasons and was then posting- she would have the choice of filing for status in the US or leaving the US and filing overseas. But now that she knows, she knows and its very hard to claim 'no intent'.

 

Intent is a funny thing. No one truly knows what someones intentions are. The best they can do is make assumptions based on the surrounding facts. Theoretically she could enter the US (for other reasons) and honestly have no intentions to stay and file VAWA while here- but then something could change- perhaps she has a change in financial situation or an opportunity comes up for housing and she decides she does want to file for status while here. Because she didnt intend to when she came- it was a change in plans, she would be able to file. Its a slippery slope because MANY would believe she had the intention all along but its impossible to actually prove it in most cases. 

 

If the main concern is getting to the US BEFORE bringing the child over- I do not think filing from overseas is an issue. If she is able to file for VAWA and it is approved she can enter the US at that time on her own. She does not have to bring the child with her. I am going to assume the child will have no problem obtaining a US passport due to the fact that the father seems to be military. He most likely meets the requirements to pass citizenship to the child that was born in the UK. Theres only issues with that if he didnt have a solid history of being in the US. (on duty counts as being in the US). So she can enter alone under the GC she would receive from VAWA and then go back for the child later. The child probably wont be included in the VAWA- and couldnt be if they have a US passport.

 

I also want to stress the point as others have made that once the child is in the US- they most likely will not be able to leave. A court probably will not allow her to take the child back overseas- so its imperative that she has a GC when bringing the child to the US and is prepared to remain in the US for the next 18yrs. 

[missvrapter 9]

I messaged Sandra with my predicament earlier today but havent heard anything back. However. I have just found this on the USCIS website after looking for several hours. https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter7.html#footnote-9

 

C. Visa Waiver Programs

 

A foreign national admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status. ^[8] Similarly, a foreign national admitted as a nonimmigrant without a visa to Guam or to the CNMI is barred from adjustment of status. ^[9] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants.

 

EDIT: I have also just found this.http://www.alllaw.com/articles/nolo/us-immigration/adjustment-of-status-permanent-resident-faq.html

 

Who Is Eligible to Adjust Status?

You must not have entered the U.S. as a foreign national crewman, in transit without a visa ("TWOV"), or under the Visa Waiver Program (VWP) (although entry on the VWP is okay if you are the immediate relative of a U.S. citizen).

Edited January 27, 2017 by alexndillon2125

[missvrapter 9]

The last part.
Am i correct in thinking that last part applies to me? I can visit on the VWP and file for AOS and VAWA and it be allowed?

[Unlockable 7,314]

Now you want to come on VWP and stay and AOS?

 

Refer to Damara's post above yours. Why not just wait until the VAWA ia complete before moving to the US?

[missvrapter 9]

Im trying to explore different options and see whats available before i make a decision. I was advised to surrender my expired green card even though i had every intention of returning to the states after my son was born, i made the wrong decision and paid for it.

 

is the above not correct? i pulled it from the USCIS website (link is shown)... it states that i can return on VWP, file for VAWA and AOS legally... correct?

[f f 725]

since we have only heard one side of the story it is impossible to get a full picture but what about the husband's rights to see his child. currently you are still married and he has been proven to be the father and as far as we know not lost any parental rights.

 

because of that you will have issues with part 3 question 12 of the i485

"are you holding custody of a usc child outside of the us from a person granted custody of the child"

even though you gave bit to the child in the uk the father was a usc so the child is a usc and you can not sign away his rights to your parents only he can or a court order can take away his rights.

[missvrapter 9]

Very valid questions. This will be discussed between the father and I when the divorce proceedings happen. I not holding a child from anybody. My husband knows he can come over and see his child right now, he chooses not to for financial and work reasons. I wont be signing away any rights to my parents until the divorce has been settled.

[f f 725]

24 minutes ago, alexndillon2125 said:

I messaged Sandra with my predicament earlier today but havent heard anything back. However. I have just found this on the USCIS website after looking for several hours. https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter7.html#footnote-9

 

C. Visa Waiver Programs

 

A foreign national admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status. ^[8] Similarly, a foreign national admitted as a nonimmigrant without a visa to Guam or to the CNMI is barred from adjustment of status. ^[9] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants.

 

EDIT: I have also just found this.http://www.alllaw.com/articles/nolo/us-immigration/adjustment-of-status-permanent-resident-faq.html

 

Who Is Eligible to Adjust Status?

You must not have entered the U.S. as a foreign national crewman, in transit without a visa ("TWOV"), or under the Visa Waiver Program (VWP) (although entry on the VWP is okay if you are the immediate relative of a U.S. citizen).

if this was true then the k1 and cr1 from vwp countries would be pointless. there is a difference in being able to aos when you are here and coming here on vwp with the intention of aos.

 

8 minutes ago, alexndillon2125 said:

My husband knows he can come over and see his child right now, he chooses not to for financial and work reasons.

it is moot that you have the child available to see him when any visit requires great cost and time commitments and you say he can't because of money and work restrictions. there is a big difference in having to drive an hour and having to take an cross ocean flight.

[missvrapter 9]

Eligible immediate relatives include the U.S. citizen's: Spouse. Unmarried child under the age of 21. Parent (if the U.S. citizen is over the age of 21) <---- pulled from USCIS

 

im going to call the consulate/embassy on monday and see what they have to say, lol.

K1 is not pointless because the fiance would be entering as a fiance on the visa waiver program, not a spouse, they wouldnt be married yet lol.

[Georgia16 2,858]

6 minutes ago, alexndillon2125 said:

Eligible immediate relatives include the U.S. citizen's: Spouse. Unmarried child under the age of 21. Parent (if the U.S. citizen is over the age of 21) <---- pulled from USCIS

 

im going to call the consulate/embassy on monday and see what they have to say, lol.

K1 is not pointless because the fiance would be entering as a fiance on the visa waiver program, not a spouse, they wouldnt be married yet lol.

So where would your immediate relative come in, in this you wrote?

[missvrapter 9]

Just now, Georgia16 said:

So where would your immediate relative come in, in this you wrote?

i am the immediate relative, lol. I am the spouse. My husband is the USC

I enter on the VWP... i am the immediate relative.. i apply for AOS and VAWA. 

if im not mistaken, its what USCIS has just said is legal. am i wrong?