VWP - AOS w/ 1-130 & i-485

[prsuzor 0]

Hi,

My husband and I are considering the prospect of having him adjust his status while on his VWP right now. First of all, we were married on his last trip in 2006, and initially had no intention of doing this on his current trip. I am aware of the 'burden of proof' required during the interview, so I don't want to hear any of that, I'm just wondering if other people have done it or know of stories. I'd like an idea of the timeline (how long until he gets his green card, etc.), because I read that spouses get priority treatment when it comes to green cards. I'd also like to know if you can file it after his waiver expires, because I've heard that they're lenient on spouses in that regard too...

Any help would be much appreciated,

Dominique

[YuAndDan 153]

Yes you will have a problem with the AOS interview, they tend to have no problem when a person enters the country on a visitors visa and happens to find true love marry and adjust status, however if the foreign spouse leaves and then reenters the country the re-entry is considered using a non-immigrant visa with immigrant intent, it is quite hard to convince that no visa fraud is intended, you are clearly attempting to get around the waiting time involved in a CR-1 or K-3 visa.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

http://www.visajourney.com/forums/index.ph...page=i130guide2

[YuAndDan 153]

If he is still here on the first VWP from 06 then what were you waiting all this time for? the I-485 filing was drastically raised July 30 from $395 to $1010.

[prsuzor 0]

This is his second trip. We originally planned on me going to Australia to file a DCF earlier this year but got screwed over when they changed the rules about DCF with absolutely no warning at all. This trip was planned as a brief visit before filing the K-3 but we recently found out that spouses are eligible to adjust status on VWP. We also just learned about the ridiculous new fees but that won't be too big of a hassle if it means we dont have to wait 5-10 years (approx.) for the K-3 to be approved.

Anyway, I didn't want to get into the details, I just wanted to know about the process.

Edited August 13, 2007 by domjeamou

[YuAndDan 153]

This is his second trip. We originally planned on me going to Australia to file a DCF earlier this year but got screwed over when they changed the rules about DCF with absolutely no warning at all. This trip was planned as a brief visit before filing the K-3 but we recently found out that spouses are eligible to adjust status on VWP. We also just learned about the ridiculous new fees but that won't be too big of a hassle if it means we dont have to way 5-10 years (approx.) for the K-3 to be approved.

Anyway, I didn't want to get into the details, I just wanted to know about the process.

Then please read my first response you cannot leave after marriage and then re-enter on the VWP and adjust as a way of circumventing the CR-1 or K-3 visa process, they will see this when interviewing and can deny and deport for this.

File the I-130 and if you want to doe the K-3 then file I-129F after getting the NOA1 for the I-130.

The CR-1 lately only takes a bit larger and is much less than the K-3, has the advantage of an immediate green-card, K-3 assumes you will file that nasty $1010 fee for AOS later after entry on the K-3.

[Dr_LHA 3]

Yes you will have a problem with the AOS interview,

I'm sorry but this is way to strong a statement. There is a possibility they may have a problem. There have been many cases where people have adjusted with questionable "intent" and it never even was brought up at the interview.

[Dr_LHA 3]

This is his second trip. We originally planned on me going to Australia to file a DCF earlier this year but got screwed over when they changed the rules about DCF with absolutely no warning at all. This trip was planned as a brief visit before filing the K-3 but we recently found out that spouses are eligible to adjust status on VWP.

So when your husband last entered the USA last, he did not have any intention of filing for AOS on that trip, it was intention to leave after this trip and to return home to file for a visa? Immigration intent is all that matters, if there was no intent and the decision to file for AOS was made after he entered the USA, then no rule is being broken.

Edited August 13, 2007 by Dr_LHA

[prsuzor 0]

This is his second trip. We originally planned on me going to Australia to file a DCF earlier this year but got screwed over when they changed the rules about DCF with absolutely no warning at all. This trip was planned as a brief visit before filing the K-3 but we recently found out that spouses are eligible to adjust status on VWP. We also just learned about the ridiculous new fees but that won't be too big of a hassle if it means we dont have to way 5-10 years (approx.) for the K-3 to be approved.

Anyway, I didn't want to get into the details, I just wanted to know about the process.

Then please read my first response you cannot leave after marriage and then re-enter on the VWP and adjust as a way of circumventing the CR-1 or K-3 visa process, they will see this when interviewing and can deny and deport for this.

File the I-130 and if you want to doe the K-3 then file I-129F after getting the NOA1 for the I-130.

The CR-1 lately only takes a bit larger and is much less than the K-3, has the advantage of an immediate green-card, K-3 assumes you will file that nasty $1010 fee for AOS later after entry on the K-3.

Hmm, CR-1 you say? I'll look into this...

Also (off-topic), if they allow you to adjust status on the VWP if you 'find true love' and get married, wouldn't that too be seen as a way of circumventing a visa process (K1).

[prsuzor 0]

So when your husband last entered the USA last, he did not have any intention of filing for AOS on that trip, it was intention to leave after this trip and to return home to file for a visa? Immigration intent is all that matters, if there was no intent and the decision to file for AOS was made after he entered the USA, then no rule is being broken.

This is correct, and there can be various proofs to back it up (return plane tickets and so on).

[YuAndDan 153]

This is his second trip. We originally planned on me going to Australia to file a DCF earlier this year but got screwed over when they changed the rules about DCF with absolutely no warning at all. This trip was planned as a brief visit before filing the K-3 but we recently found out that spouses are eligible to adjust status on VWP. We also just learned about the ridiculous new fees but that won't be too big of a hassle if it means we dont have to way 5-10 years (approx.) for the K-3 to be approved.

Anyway, I didn't want to get into the details, I just wanted to know about the process.

Then please read my first response you cannot leave after marriage and then re-enter on the VWP and adjust as a way of circumventing the CR-1 or K-3 visa process, they will see this when interviewing and can deny and deport for this.

File the I-130 and if you want to doe the K-3 then file I-129F after getting the NOA1 for the I-130.

The CR-1 lately only takes a bit larger and is much less than the K-3, has the advantage of an immediate green-card, K-3 assumes you will file that nasty $1010 fee for AOS later after entry on the K-3.

Hmm, CR-1 you say? I'll look into this...

Also (off-topic), if they allow you to adjust status on the VWP if you 'find true love' and get married, wouldn't that too be seen as a way of circumventing a visa process (K1).

Note: by the time you would get the CR-1 it may become an IR-1 visa if you celebrate your 2nd wedding anniversary before entry on the (CR-1/IR-1) Immigrant visa and will get the 10 year permanent un-conditional green-card, no lifting of conditions needed

[Dr_LHA 3]

So when your husband last entered the USA last, he did not have any intention of filing for AOS on that trip, it was intention to leave after this trip and to return home to file for a visa? Immigration intent is all that matters, if there was no intent and the decision to file for AOS was made after he entered the USA, then no rule is being broken.

This is correct, and there can be various proofs to back it up (return plane tickets and so on).

The burden of proof here is the issue. It might be worth consulting an immigration lawyer to make sure you have enough proof just in case the issue comes up. However on paper, the is no problem with you filing for AOS from the USA I would say, as your husband didn't have immigration intent upon entering the USA last. That is the issue, not when you were married as is often mistakenly thought. If there was no intent then they can't deny AOS for that, but as said before, the burden of proof is on you always.

[prsuzor 0]

This is his second trip. We originally planned on me going to Australia to file a DCF earlier this year but got screwed over when they changed the rules about DCF with absolutely no warning at all. This trip was planned as a brief visit before filing the K-3 but we recently found out that spouses are eligible to adjust status on VWP. We also just learned about the ridiculous new fees but that won't be too big of a hassle if it means we dont have to way 5-10 years (approx.) for the K-3 to be approved.

Anyway, I didn't want to get into the details, I just wanted to know about the process.

Then please read my first response you cannot leave after marriage and then re-enter on the VWP and adjust as a way of circumventing the CR-1 or K-3 visa process, they will see this when interviewing and can deny and deport for this.

File the I-130 and if you want to doe the K-3 then file I-129F after getting the NOA1 for the I-130.

The CR-1 lately only takes a bit larger and is much less than the K-3, has the advantage of an immediate green-card, K-3 assumes you will file that nasty $1010 fee for AOS later after entry on the K-3.

Hmm, CR-1 you say? I'll look into this...

Also (off-topic), if they allow you to adjust status on the VWP if you 'find true love' and get married, wouldn't that too be seen as a way of circumventing a visa process (K1).

Note: by the time you would get the CR-1 it may become an IR-1 visa if you celebrate your 2nd wedding anniversary before entry on the (CR-1/IR-1) Immigrant visa and will get the 10 year permanent un-conditional green-card, no lifting of conditions needed

I never read about this CR-1 before. I did a little searching just now about it, but I'm not as familiar with the conditions as I am with the K-3. Basically it means he can get a green card without having to adjust status, correct? Does it have to be filed when he's outside the U.S? If not, how long would it be until he can legally work?

The results I quickly searched for weren't very conclusive, so I'll do some more research...

[YuAndDan 153]

I never read about this CR-1 before. I did a little searching just now about it, but I'm not as familiar with the conditions as I am with the K-3. Basically it means he can get a green card without having to adjust status, correct? Does it have to be filed when he's outside the U.S? If not, how long would it be until he can legally work?

The results I quickly searched for weren't very conclusive, so I'll do some more research...

CR-1 = Conditional resident immigrant visa and is issued to a spouse married less than 2 years, IR-1 is immigrant relitive visa and is issued to a spouse married more than 2 years.

Either get green-card on entry to the USA, CR-1 gets a 2 year conditional green-card requiring lifting of those conditions within 90 days of the card's expire. IR-1 gets a 10 year un-conditional card with no conditions to lift.

If you do celebrate 2nd wedding anniversary between visa interview and entry on the CR-1 you can show marriage cert to the POE officer and they will code you for an Un-conditional green-card.

Green-card allows immediate work, and travel. K-3 needs to file for EAD which can take up to 90 days to get.

You can start by filing just the I-130 even while your spouse is still in the USA, your spouse will just need to not overstay the VWP, and return home to interview for the visa.

Edited August 13, 2007 by YuAndDan

[Dr_LHA 3]

Or you could just file AOS in the USA the normal way.

[Kez/JWolf 6]

Why on earth would he want to do a CR1/IR1 if he is here in the US and had no immigrant intent on entry... you came on vacation and then decided to remain... It should not cause you any major issues, a chat with an immigration lawyer will help sort out if you are likely to encounter any issues with regard to intent...

I came on a VWP and then remained... it took 181 days from filing to approval and that was in 2005 it is faster now...

here is a link to the guide for people doing AOS from a tourist/VWP

http://www.visajourney.com/forums/index.ph...page=i130guide2

Good Luck

Kez