Just trying to get some facts straight about AOS

[ad8816 32]

Hello all, 

 

My husband and I got married in 12/2017 and we submitted our I-130 in 1/2018. He came to the USA for 5 weeks during Christmas time on the ESTA visa waiver and we got married. We had no idea that it was even a possibility to adjust status while he was here and for him to just stay in America. However, we had planned to get married on this trip a few months before he came, because we wanted to pursue the spouse visa over the K1 Visa. 

 

My question: if my husband would have come here and with the intent to marry me and RETURN TO ITALY, but then upon arriving, he found out that he could just stay and adjust his status, would this still be considered Visa fraud? Would he have had to overstay the 90 days before we even began the AOS process? 

 

This is all hypothetical, anyway. My husband is in Italy and I'm in the US-- I was just so curious because I see a lot of posts on here about people who come and just don't leave! 

 

Thanks in advance!

[payxibka 10,045]

Only thing not hypothetical is that it is a moot issue

[Boiler 45,525]

Agree, you know about the option so what is the point?

[JoannaV 174]

Back in 2009, we planned for me to visit using ESTA and for us to marry in the US in July. Then we went to the UK for a week, I applied for a new passport in my married name, DH returned to the US whilst I waited in the UK. Once my new passport arrived I flew to the US for a three month visit (well, just under 90 days). DH had made zero progress on immigration stuff, so I got the I-130 together and we sent it off near the end of August. At some point after that I found out about AOS. And I read through the forms and so on. I thought about it a little. But it did talk about proving you didn't enter with intent, which I certainly didn't but how would I prove that? (And I think, at that time, there were some VWP AOS applicants whose applications were held up for a long time because there was actually some thought of being less lenient about it.) Plus I had entered with the intention of returning to the UK after three months: I hadn't said final goodbyes to people, nor had I packed my belongings to ship over, nor did AOS seem easier - I had to access some documents in the UK which seemed easier to do, err, in the UK.

 

It's one of those things where various different aspects of the immigration system collide to make something a bit messy and contradictory. You'd like to be able to unravel it all and remake it as a cohesive whole. But that would be complicated and there are more pressing/important aspects of immigration to reform. So just shrug. It all works out. (And, overall, it is probably beneficial to be informed about immigration and to follow proper procedures.)

[ad8816 32]

2 minutes ago, JoannaV said:

Back in 2009, we planned for me to visit using ESTA and for us to marry in the US in July. Then we went to the UK for a week, I applied for a new passport in my married name, DH returned to the US whilst I waited in the UK. Once my new passport arrived I flew to the US for a three month visit (well, just under 90 days). DH had made zero progress on immigration stuff, so I got the I-130 together and we sent it off near the end of August. At some point after that I found out about AOS. And I read through the forms and so on. I thought about it a little. But it did talk about proving you didn't enter with intent, which I certainly didn't but how would I prove that? (And I think, at that time, there were some VWP AOS applicants whose applications were held up for a long time because there was actually some thought of being less lenient about it.) Plus I had entered with the intention of returning to the UK after three months: I hadn't said final goodbyes to people, nor had I packed my belongings to ship over, nor did AOS seem easier - I had to access some documents in the UK which seemed easier to do, err, in the UK.

 

It's one of those things where various different aspects of the immigration system collide to make something a bit messy and contradictory. You'd like to be able to unravel it all and remake it as a cohesive whole. But that would be complicated and there are more pressing/important aspects of immigration to reform. So just shrug. It all works out. (And, overall, it is probably beneficial to be informed about immigration and to follow proper procedures.)

Thank you for this detailed response! I really appreciate you sharing your personal experience. I agree completely about following proper procedures. We even saw a lawyer before we submitted our petition and he was strongly implying that we absolutely should not consider AOS. I'm just very curious about all the different ways to go about this immigration process, so thank you again for your response.  

[Ryan H 3,812]

Moved from Progress Reports to Process & Procedures.

[pushbrk 12,894]

Intentions that change after entry are not fraud.  Having already filed the I-130 and asked for Consular processing makes the OP's question moot for their own situation.  

 

It...IS...possible to redirect an approved I-130 from NVC to an AOS case, however.  This is exactly what happened in all K3 cases back in the day and would still be possible.  Again, if intentions were to change AFTER entry.

 

The negative to entering without an immigrant visa is that the (then) intending immigrant needs to stay in the US, not travel internationally, and cannot work until EAD and Advance Parole are complete.

 

Edited May 10, 2018 by pushbrk

[Bethany123 56]

If your intentions change after his entry it is not fraud. But, you will need to prove that he intended to return, so hold on to evidence of the return flight.