Arrive in U.S with B-2 visa, got married, can I apply for AOS?

[Kathryn41 3,205]

Well, here is another thread going in circles and circles between accurate and inaccurate information. For the most part, those VJers who have been here longer are more accurate in their information. So, to summarize the options for the OP.

Yes, being in the US on a visitor's visa, getting married, and applying to adjust status IS legal AS LONG AS it was not the intent upon entry into the US. The process is called 'Adjustment of Status" - that means you are adjusting your status from another legal visa that has allowed you entry to the US. Some of those visas are for specific purposes such as marriage - the K-1 and the K-3. Intent has been declared and approved by USCIS (K-3s are actually already married). Others - such as student visas, work visas and visitor visas - are here on another basis. While here, they reach a decision that they did not have upon entry to the US, to get married and remain in the US with their partner. They apply to change their status from their legal visitor status, work status or student status to become a permanent resident. IT IS TOTALLY LEGAL.

It is illegal to enter the US on any visa other than a K-1 with the intent of getting married and applying to adjust status. That is called visa fraud because you are using one visa for a different purpose than for which it was designed and you have misrepresented your information to USCIS in order to gain that visa. That is why it is fraud. Obtaining and using a visa for the purpose it was designed and issued is not visa fraud. There was no misrepresentation made to DOS or USCIS in order to obtain the visa. The individual's circumstances, however, have changed and they are requesting a change of status- thus the AOS application.

Because people are sometimes dishonest and do try to circumvent the immigration process by using one visa to enter the country but having a separate intent, USCIS does look out for visa fraud. They are pretty good at determining evidence that points to visa fraud. Entering the US with $300 and a bank card to access funds 'back home' and one bag of clothing, leaving all other belongings including a beloved dog back home and having a return air fare ticket, does not give any red flags that say 'visa fraud'. Being young and being impetuous often go hand in hand, and again, does not indicate a pre-meditated attempt to commit fraud.

So, basically you have two valid options now you are married. Since you did not intend to get married on this visit and certainly did not sever any of your ties back to Australia but chose impetuously to get married and now want to remain in the US with your husband, you are allowed to do so. He would file an I-130 petition for a family member and you would concurrently file the I-485 application to adjust status known as the AOS. You would have to arrange to tie up your affairs back home from a distance, which can be a nuisance, and you will have to decide about how to bring your dog to you if you wish to do so. If, on the off chance your AOS is denied, you would have to leave the US and then start the process over again with the CR-1 visa.

Your other option is to return to Australia to tie up your affairs yourself while your husband files the I-130 petition and when that is approved, apply for a CR-1 visa through the US Consulate in Australia. Then, when the visa is approved you would move to the US with all of your belongings and become a permanent resident when you return to the US.

Both these options are valid. Both of them carry requirements you need to discuss before you make a final decision. First, you will need to complete security checks for criminal records from Australia and any place you have lived for more than 6 months, have an immigration medical and provide certain identification documents that you may not have with you. You can do this from a distance but it might be easier to do this back home so that is one factor that can affect your decision. Your husband also needs to complete an affidavit of support (I-864) for you that proves he is able to financially support you because he earns at least 125% of the poverty level. If he does not earn this amount - which is unlikely if he is a student - that he will need to find a co-sponsor who does and who agrees to accept sponsoring you. This is another factor that may affect your decision - if someone is readily available as a co-sponsor or if you need time to locate someone. The CR-1 gives you that 'time' to complete certain aspects of the process that you won't have if you file for AOS from within the US.

So, you will find a lot of information available by reading over the various applications involved and the instructions from the USCIS website. You may also find a consultation with a lawyer of use but you don't really need to use a lawyer to complete the paperwork. Educating yourselves on what is involved and paying attention to details will be the best thing you can do to help you decide which is the better course for you.

Please do not let the judgmental comments or misinformation that is sometimes put forward interfere with finding the best course of action for you.

Edited February 11, 2010 by Kathryn41

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