Please clarify "intent": Spouse enters on VWP filing I-485 with pending I-130 (NOA1)

[MZCCOB 6]

Hello VJ community,

 

  Thank you so much for taking the time to read this post - we have done a lot of searching with regard to the topic of AOS for a spouse who enters the USA - specifically around the question of intent.

 

First, we'll describe our circumstances, and below, we'll outline what appear to be contradicting positions: one on the I-485 form, and one vehemently expressed by people on this website. 

 

Circumstances - My wife and I met in 2011 as university students in Toronto, and our marriage took place in Toronto ON in late 2016. We have notarized affidavits from both sets of parents, and various friends, Skype logs, emails, financial transfers, plane tickets, hotel reservations for shared trips, and many photos.

 

I am USC, she is Canadian.

 

I've been living in the USA since 8/2015, while she has remained in Toronto - looking for the opportunity to come down to the USA to work and be together.

 

We filed our I-130 in late Jan 2017, have received NOA1, and are interested in AOS in order to facilitate us being together.

 

Postion - In the community here we have noticed that people discourage AOS upon entry on tourist visa, because the intent of entering with an implied commitment to leave the USA constitutes "visa fraud".

 

Position - USCIS documents (source https://www.uscis.gov/sites/default/files/USCIS/About Us/Electronic Reading Room/Customer Service Reference Guide/Permanent_Residents_Fam.pdf)

 

Page 7/66

"You are eligible to apply for adjustment of status in the United States if:

• You are physically present in the United States;

• You have been inspected by a United States Immigration Officer and were either admitted or paroled into the United States;

• An immigrant visa is immediately available to you at the time you file the I-485;

• You are not inadmissible under any grounds in INA § 212; and

• You are not in one of the ineligible categories.

...............

I am an immediate relative of a U.S. citizen. Do I have to wait for a visa to become available to apply for adjustment of status?

No, an immediate relative of a United States citizen is not subject to numerical limitations on immigrant visas and does not have to wait for a visa to become available before applying for adjustment of status.

....

If your U.S. citizen relative has filed a Petition for Alien Relative (Form I-130) and it is still pending with USCIS, you may file an Application to Adjust Status (Form I-485). When you submit your completed I-485 and the fee, include a copy of the Notice of Action (Form I-797) showing the I-130 has been received at the Service Center."

 

Similar information can be found on this document (https://www.uscis.gov/system/files_force/files/form/i-485instr.pdf) page 2, Question "Who is not eligible to adjust status?" Answer #6 - would seem to give allowance to the spouse to apply.

 

Conclusion/Ask - Given these stipulations from USCIS documents, we  cannot find an interpretation that would, on its face, suggest that we cannot adjust her status, regardless of intent. For those who would say that it would be "visa fraud" to enter the US from a VWP Country (Canada) and then AOS based on pending I-130 - what sources/experiences inform your assertion?

 

Thank you for your time, and I look forward to reading your responses.

 

Similar discussions - 

 

[EmilyW 1,528]

When she enters, she should tell the border official the truth: that she is entering with the intent to adjust status while she is in the US.  If there is no problem with your plan, she will be let through.  If there is a problem, she will be denied at the border or you can print out the links above and she can argue the point with the border official.

Edited April 22, 2017 by EmilyW

[Boiler 46,132]

I agree, just tell the PoE when they ask the purpose of your visit that you are immigrating and will be adjusting status.

 

Perhaps print out your conclusion, what can go wrong?

[MZCCOB 6]

Thanks for your quick and concise replies. 

 

@Boiler @EmilyW indeed, she could come to the IO and declare her intent - I'm curious about the likelihood of that argument succeeding. Is there precedent/a pathway for such an action?

 

Edit: here's a source (http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter11-1.html) that would suggest that VWP is pretty lenient, but it's just not clear to me why an IO would let us in other than the fact that she is a IR to a USC, and I want to strengthen my case.

Edited April 22, 2017 by MZCCOB

[EmilyW 1,528]

Well she will need to tell the truth when asked.  She should be honest and say 'I will be adjusting status on my trip'.

 

Your problem is that she can't use the VWP for the purposes of adjusting status: https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html

 

Quote

The following are examples of activities not permitted on the VWP and require visas for travel to the United States:

• study, for credit
• employment
• work as foreign press, radio, film, journalists, or other information media
• permanent residence in the United States

 

[MZCCOB 6]

7 minutes ago, MZCCOB said:

Thanks for your quick and concise replies. 

 

@Boiler @EmilyW indeed, she could come to the IO and declare her intent - I'm curious about the likelihood of that argument succeeding. Is there precedent/a pathway for such an action?

 

Edit: here's a source (http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter11-1.html) that would suggest that VWP is pretty lenient, but it's just not clear to me why an IO would let us in other than the fact that she is a IR to a USC, and I want to strengthen my case.

Immigrants Who Entered the U.S. Legally on the Visa Waiver Program

People who enter the U.S. on the Visa Waiver Program (VWP) are in most cases prohibited from adjusting status, but this doesn’t apply to immediate relatives such as spouses of U.S. citizens. They can apply, even if they’ve overstayed the period of time they were allowed under the VWP.

[f f 725]

just file the i130 now to get the ball rolling on everything. no need to wait. 

[EmilyW 1,528]

Note I quoted an official statement from the government versus a website that is known to provide faulty advice.

 

But you seem keen on it, so go for it.  Have her tell the truth that she is using the VWP to enter and adjust status.  Print out the NOLO advice as backup.  Let us know how it goes.

[MZCCOB 6]

@f f already filed

 

@EmilyW indeed it's true, no room for argument with the info you posted, definitely preferable to Nolo. However, there's a specific case with Canada - it's not technically a VWP country, although it's similar. I wonder if this changes anything. 

 

http://www.esta.us/canada.html 

[Cryssiekins 976]

The processes in place for applying for visa for loved ones are there for a reason. 

 

When you try to circumvent the process, it only goes to making it much more difficult for the rest of us who followed the legal procedure. 

 

I know it sucks being apart (I'm from Toronto and my husband is from Buffalo, so we were very close, but still far) but it's part and parcel of being in a long distance, cross-border relationship. 

 

Just wait out the process the correct way, and stop looking for a loophole.  It's likely crossed everyone's mind at some point with a "what if" but please don't actually try to willingly commit fraud.  Rest assured that following the legal process will allow you to be with her when it's time and you'll know the legality of it is not questionable. 

[MZCCOB 6]

@Cryssiekins Amazing - I'm from Buffalo and she's from Toronto, I'm down in DC though. Thanks for your message - we are all empathetic towards each other's scenarios. It might be seen as looking for a loophole, but we're just exploring all options available to us.

 

Apologies for any funky links, doing this from my phone.

 

Here's an informative thread for a slightly different scenario

 

 

 

[NigeriaorBust 4,087]

  Most of the time people get away with bending the rules, which doesn't mean it is within the rules.   However if you try this and it doesn't work she will NOT be visiting at all until the end of the process.  You are so lucky to be able to visit at a whim.  Many of us didn't have this option.

[Transborderwife 4,666]

1 hour ago, EmilyW said:

When she enters, she should tell the border official the truth: that she is entering with the intent to adjust status while she is in the US.  If there is no problem with your plan, she will be let through.  If there is a problem, she will be denied at the border or you can print out the links above and she can argue the point with the border official.

 

1 hour ago, Boiler said:

I agree, just tell the PoE when they ask the purpose of your visit that you are immigrating and will be adjusting status.

 

Perhaps print out your conclusion, what can go wrong?

Thumbs up advice 

[CantThinkOfOne 22]

13 minutes ago, Transborderwife said:

 

Thumbs up advice 

^^that, with the OP coming back here afterwards and sharing the experience with us all 

[Suss&Camm 2,213]

When you enter the US on any visa the CBP will look at your visa and ask you what are you planning to do while in the US. There are specific visas for specific purposes. To be able to enter to do what you want isn't in the purpose of a non-immigrant visa...or the visa waver program that the US has with Canada. Using any visa for something other than it's purpose is where the fraud comes in. 

I don't understand why you would want to risk getting caught out lying on entering. 

It's another thing if you are already present in the US and the decision is then made to go ahead and AOS, meaning you entered with the intent to visit.

The quote from the i-485 form requires you to "be present in the US". Well to do that you have to first enter.