Married under VWP, now what?

[RShift 0]

Hi everyone,

First I have to say this is an incredibly informative site, I've learnt a lot from just reading the guides and posts here for a few hours. Now, onto our situation:

My USC wife and I met in Berlin while she was an au-pair and I was studying there. We ended up living together there for six months until her au-pair visa ran out. We considered marrying in Germany so we could stay together, but after heading to the Standesamt there and finding out how much we'd have to do to get married there and how much we'd end up paying in fees and for translators and such we decided to wait until we went back to the US for a few months to visit her friends and family (whom she hadn't seen in a year), then once we were married we could come back to Germany (where we'd made friends and wanted to stay) married and it would be quite simple for her to get a EEA Family Permit since I'm an EU citizen. We arrived in the US 2 months ago and got married 2 weeks after we arrived.

However, we've now decided we want to live together in the US instead of going back to Germany. Now it seems like we're in a very difficult situation. As I understand it I can apply for an Adjustment of Status here and stay during the process, which might be risky if they decided I entered with the intention to immigrate or I can leave and apply through the consular route, but I think I would have to be separated from her for many months or possibly a year. To be honest I don't think I can bring myself to spend that long away from her, we haven't been apart for more than a day since we met, so I'm much more inclined to try the AOS. But I have some questions:

• If they believe I entered with intent to immigrate and turn me down, am I then effectively barred from ever coming back to the US? My wife wants to apply to graduate school here now and if that happened we would really be screwed. The fear of this happening is really the main thing stopping me going for the AOS right now.
  
• If we go do the AOS route, I only have a month left on my VW, what happens when that runs out? Would I be here illegally? Or does the AOS provide me some legal protection? If they turn me down for the AOS, either because they suspect I entered fraudulently or because we don't have a genuine marriage, will I be removed from the country immediately? We'd be submitting the AOS before the 90 days are up and it's not exactly clear to me what happens during the process or afterwards if it fails.
  
• I read that we'd have to provide evidence of a bona fide marriage. We don't have a joint lease or mortgage or co-mingled assets or children. We've been staying here with friends and her family and we're both quite poor so we don't really have any assets. We don't have a joint bank account since we didn't intend to stay here (I'm not even sure if I could've set up a bank account as a visitor to the US anyway?). What can we do to prove our marriage? We do have our old joint tenancy agreement from Germany and we have quite a lot of photos of us together in Germany and then here in the US, but I don't know if they care about that kind of thing.
  
• Since neither of us have much in assets and she doesn't have a job here, we'd probably be going for a joint sponsor, but alternatively we're considering borrowing money from my parents to stand as our assets. As I understand it we'd need 3 times the 125% limit in assets. My questions are would they accept the bare minimum in assets or would it need to be substantially more since we have no incomes currently and also if they'd accept assets that just turned up in her bank account right before the application? I see they want 12 months of bank statements which makes me think they are looking for long-term assets?
  
• If we do go for a CR-1 instead, is there any way for me to visit her while it's processing? Or does she even need to remain in the US? Could we back go the UK together, since she can stay there 6 months without a visa?
  

Thank you in advance for any help.

[payxibka 10,045]

the issue of intent was dealt with at the time of entry... if the CBP felt you had intention to immigrate you would have been turned back at the border when you entered... as long as you did not make any statements at the border that now could come back to be considered misrepresentation, then just do the I-130/I-485 AOS route and you will be fine...

[ameribrit 37]

Although it would suck, my limited personal opinion would be for you to return back to Germany and for your wife to file CR-1 spousal visa back in the US.

Marrying under VWP and adjusting has been done before in the past, but i understand that they are craking down on this. Since you entered on VWP, if your AOS got denied you would have no legal right for appeal.

If your AOS got accepted into the system, as i understand it at the moment, peoples cases are being put on hold.

As i say i have limited experience with this, and i am sure other more experienced members will be along to answer your concerns more comprehensively.

Good luck for the future

[anthokad 3]

I think it will be best for her to file the CR-1 for you in the US, and then you both can return to Germany and spend time together since you two can legally stay there together for at least 6months.best of luck

[RShift 0]

the issue of intent was dealt with at the time of entry... if the CBP felt you had intention to immigrate you would have been turned back at the border when you entered... as long as you did not make any statements at the border that now could come back to be considered misrepresentation, then just do the I-130/I-485 AOS route and you will be fine...

Can anyone else confirm this? Is there any risk of being banned from the US at this point? This is by far my biggest worry.

I think it will be best for her to file the CR-1 for you in the US, and then you both can return to Germany and spend time together since you two can legally stay there together for at least 6months.best of luck

We'd probably going to the UK rather than Germany, because my parents live there and I think she could only stay in the Schengen Area for 3 months on a tourist visa (since we wouldn't be applying for residency for her there).

I think we still need the proof of a genuine marriage if we do go for the CR-1 anyway? I'm not sure how we should go about proving this.

Edited November 2, 2010 by RShift

[Myopia 93]

Hi everyone,

First I have to say this is an incredibly informative site, I've learnt a lot from just reading the guides and posts here for a few hours. Now, onto our situation:

My USC wife and I met in Berlin while she was an au-pair and I was studying there. We ended up living together there for six months until her au-pair visa ran out. We considered marrying in Germany so we could stay together, but after heading to the Standesamt there and finding out how much we'd have to do to get married there and how much we'd end up paying in fees and for translators and such we decided to wait until we went back to the US for a few months to visit her friends and family (whom she hadn't seen in a year), then once we were married we could come back to Germany (where we'd made friends and wanted to stay) married and it would be quite simple for her to get a EEA Family Permit since I'm an EU citizen. We arrived in the US 2 months ago and got married 2 weeks after we arrived.

However, we've now decided we want to live together in the US instead of going back to Germany. Now it seems like we're in a very difficult situation. As I understand it I can apply for an Adjustment of Status here and stay during the process, which might be risky if they decided I entered with the intention to immigrate or I can leave and apply through the consular route, but I think I would have to be separated from her for many months or possibly a year. To be honest I don't think I can bring myself to spend that long away from her, we haven't been apart for more than a day since we met, so I'm much more inclined to try the AOS. But I have some questions:

• If they believe I entered with intent to immigrate and turn me down, am I then effectively barred from ever coming back to the US? My wife wants to apply to graduate school here now and if that happened we would really be screwed. The fear of this happening is really the main thing stopping me going for the AOS right now.
  
• If we go do the AOS route, I only have a month left on my VW, what happens when that runs out? Would I be here illegally? Or does the AOS provide me some legal protection? If they turn me down for the AOS, either because they suspect I entered fraudulently or because we don't have a genuine marriage, will I be removed from the country immediately? We'd be submitting the AOS before the 90 days are up and it's not exactly clear to me what happens during the process or afterwards if it fails.
  
• I read that we'd have to provide evidence of a bona fide marriage. We don't have a joint lease or mortgage or co-mingled assets or children. We've been staying here with friends and her family and we're both quite poor so we don't really have any assets. We don't have a joint bank account since we didn't intend to stay here (I'm not even sure if I could've set up a bank account as a visitor to the US anyway?). What can we do to prove our marriage? We do have our old joint tenancy agreement from Germany and we have quite a lot of photos of us together in Germany and then here in the US, but I don't know if they care about that kind of thing.
  
• Since neither of us have much in assets and she doesn't have a job here, we'd probably be going for a joint sponsor, but alternatively we're considering borrowing money from my parents to stand as our assets. As I understand it we'd need 3 times the 125% limit in assets. My questions are would they accept the bare minimum in assets or would it need to be substantially more since we have no incomes currently and also if they'd accept assets that just turned up in her bank account right before the application? I see they want 12 months of bank statements which makes me think they are looking for long-term assets?
  
• If we do go for a CR-1 instead, is there any way for me to visit her while it's processing? Or does she even need to remain in the US? Could we back go the UK together, since she can stay there 6 months without a visa?
  

Thank you in advance for any help.

Hey there

Welcome to the site. You are going to find a wealth of information here which can be overwhelming to say the least.

The first thing that you need to decide is whether to file the Adjustment of Status (AOS) in the US or not. Yes, You are able to adjust without leaving the country whilst you are still IN STATUS and generally speaking as long as you file when you are still IN STATUS there is a good presumption that you will be able to adjust without any further issue from UCIS. The key point for you is to file whilst you are still In Status.

What does this mean for you?

It means that if you are still within the 90 days of your lawful non immigrant stay in the USA then you should be able to adjust.

Just to give you a brief background on the situation that you are in; It has always been possible to adjust to permanent resident status from within the US when one entered on a regular visa (One where you needed to interview at an embassy for). It has always been possible to adjust from entrance on the Visa Waiver Program. Years ago the advise was to adjust AFTER the 90 days had lapsed so as to avoid the presumption that the whole thing was intentional. Recently the consensous has been to adjust whilst in Status because of some rulings that reemphasized the fact that those who enter on the Visa Waiver Program do not have the right to appeal a visa denial because they waived all rights of appeal when they signed the VWP form (or ESTA)

This means if you file and the Immigration Officer denies your application...you will have to depart the USA and probably incur a ban. If this should happen you would have to apply from outside of the USA in order to attain permanent resident visa WITH the additional problem for filing a waiver to overcome the deportation ban.

Are you with me? Hope so!

So to answer your questions

1. No you will not be banned forever but you would have to leave with no right to appeal the IO's decision. You would have to file the regular CR1 visa in your home country along with a waiver for the ban that you may have incurred.

2. When your 90 day lawful stay runs out then you fall into unlawful stay. There are 180 days that you are allowed to accrue unlawfully before you incur the 5 year ban however you need to leave before that happens. If you leave after you will have that ban. Basically if you overstayed by up to six months and left of your own free will then you would not incur the six month ban but you would also not be able to use the visa waiver program again.

If you were apprehended by Immigration and Customs Enforcement(ICE) within this unlawful time and deported then you would receive an automatic 10 year ban. The clock is usually suspended for those who came on a Visa whilst their application is being decided. I do not believe that is the case for those on the Visa Waiver Program (Someone correct me as Im probably wrong about that)

3. At an interview you would have to establish the proof of a bona fide marriage. This is true. The photos and old lease that you have would probably serve you well if you were to leave the USA and file for the CR1 from your home country because it establishes a real relationship. However within the US once married you would be able to show your relationship with bonafide with the same things. You would be able to get notarized letters from family and friends that would testify that you were in a marriage etc. Joint gym memberships etc. There are a lot of things that you can do to prove that.

4. You would be better off with someone sponsoring you. You would have to have a lot of money in the bank to use as assets.

5. As far as I know you can file the CR1 and visit her over time. Some members have done so.

I tried to be as concise as I could before this thread gets filled with opinions, warnings and things that will make you feel more nervous than necessary.

The most important thing you need to decide is whether to file before the 90 days expired. This means getting the medical done, all forms filled, application costs everything needs to be filed within the 90 days and accepted by the UCIS before the 90 days so as to be on the safe side.

As I said there are those who filed after the 90 days and were approved but there were those who filed after and were denied.

Some immigration offices are flat denying all VWP adjustment applications who filed after the 90 days.

On edit I saw your other questions: At this point you are fine and you will not be banned for marrying within the 90 days and as I said in my answer above you do have proof of marriage, just as long as you have a sponser in the US you will be ok.

My answer is based on a ridiculous amount of time researching this because I am an overstayer. If I was able to go back within my 90 days, I would have left the US and filed from my home country. Its just too much stress and anxiety being out of status in this climate and even though I love my husband to pieces..I could handle a few months away from him if it meant I could have been here without any fear of some disgruntled friend or neighbor calling ICE to pick me up.

Make a decision fast but make sure it is the right one for you. I mean that.

Best of everything.

Edited November 2, 2010 by Myopia

[RShift 0]

Thanks for the detailed reply Myopia! I have another couple of questions:

This means if you file and the Immigration Officer denies your application...you will have to depart the USA and probably incur a ban. If this should happen you would have to apply from outside of the USA in order to attain permanent resident visa WITH the additional problem for filing a waiver to overcome the deportation ban.

Does this mean even if we file within the 90 days, I will still be likely to incur a ban if I'm denied? You said:

2. When your 90 day lawful stay runs out then you fall into unlawful stay. There are 180 days that you are allowed to accrue unlawfully before you incur the 5 year ban however you need to leave before that happens. If you leave after you will have that ban. Basically if you overstayed by up to six months and left of your own free will then you would not incur the six month ban but you would also not be able to use the visa waiver program again.

If you were apprehended by Immigration and Customs Enforcement(ICE) within this unlawful time and deported then you would receive an automatic 10 year ban. The clock is usually suspended for those who came on a Visa whilst their application is being decided. I do not believe that is the case for those on the Visa Waiver Program (Someone correct me as Im probably wrong about that)

To clarify, that means even though I'll have filed for an AOS before my visa waiver expires, any overstay I incur while I wait for my case to be processed is still counted against me?

What waiver would I need if I was banned and how would I get one?

Edited November 2, 2010 by RShift

[Harpa Timsah 13,258]

Myopia is right. To clarify:

You need to file WITHIN your 90 days... Honestly, USCIS needs to have accepted your application before the 90 days, so if you have been here 2 months, you better get busy. USCIS takes about a week or so to accept the application from once it's sent in.

If you file after the 90 days on the VWP it can turn out badly. Get it in before the 90 days... of crucial importance.

Now, once you do that... here's what will happen. Yes, there is a chance your adjustment of status (AOS) will be denied and you will need waivers to come back, but don't worry about that now... chances of that are slim.

Once USCIS accepts your application and cashes your check (like I said it takes a week-ish) then you will NOT accrue overstay days, so don't worry about that. If your application for AOS is pending you must stay here and wait (takes about 3-4 months) and you will not be penalized for staying.

You are going to need evidence of bonafides of your relationship if you file for AOS or CR-1, so you better work on getting stuff together. One of the options is to have friends and family fill out affidavits about your real relationship. USCIS will understand you are newlyweds and have less evidence than a established couple, but best get as much evidence as you can.

As far as intent, even if they think you had intent then that is not reason enough to deny your petition. If you have other problems (criminal activity) then they may add intent to the case against you. Just be prepared to explain your story.

The real point is GET BUSY and FILE WITHIN your authorized stay. Get the application accepted WITHIN your authorized stay. Hurry and good luck!!

Edited November 2, 2010 by Harpa Timsah

[JimVaPhuong 4,863]

You've gotten some good advice, so far!

They won't deny your AOS solely for preconceived intent. They may suspect it. They may even be able to prove it. They just can't use it as the sole basis to deny your AOS. This was established by precedent BIA cases way back in the 1980's. On the other hand, if they have evidence you had preconceived intent, and they further have evidence that you lied about your intent to any US immigration officer, then you'll be denied for misrepresentation. The evidence of preconceived intent can be as simple as bringing things in your luggage that would be required to adjust status but not required to simply visit the US. The evidence of misrepresentation could be any statement you made when you were being screened for entry. Think about the questions you were asked to determine if this might apply to you.

I don't necessarily agree with Payxibka that this would be determined at the time you entered, or that you would necessarily have been denied entry if they suspected it. At least one VJ member was recently set up by CBP on entry. She was placed in secondary inspection, where she was bullied into lying about her intention to get married. This set a trap for her - if she tries to adjust status she'll have confirmed the lie, and she'll be denied and banned.

Myopia and Harpa Timsah laid out the VWP ground rules pretty clearly. If your AOS application is accepted by USCIS after your 90 days authorized stay expires then there is a good chance the AOS will be denied. The policy is not yet uniform throughout all USCIS field offices, so a lot will depend on what your local USCIS field office is doing. Some USCIS field offices are denying ALL AOS applications from VWP overstays. If your AOS is denied there's also a good chance you'll be ordered deported. As the others have said - no review or appeal - the order would be effective immediately. If you are deported then you'll receive a 10 year ban.

This is too complicated to write a long winded post about it (again). Consult with a local immigration attorney and find out how the USCIS field office where you live has been handling AOS cases for VWP entrants. Do this quickly - you don't have much time left. If they have been denying them, then don't send the AOS petition. Yours will also be denied, and you'll probably be deported. Go the CR1 route instead - there's no risk if you don't overstay by more than 180 days.

[Myopia 93]

Thanks for the detailed reply Myopia! I have another couple of questions:

Does this mean even if we file within the 90 days, I will still be likely to incur a ban if I'm denied? You said:

To clarify, that means even though I'll have filed for an AOS before my visa waiver expires, any overstay I incur while I wait for my case to be processed is still counted against me?

What waiver would I need if I was banned and how would I get one?

No problem. I believe that both of these concerns was answered by both Jim and Harpah. There isnt much that I would add to this other than to reiterate that if you do choose to adjust within the US make sure that you leave yourself about a week for USCIS to accept your application.

Calculate how many exact days you have been here in the US and see what you have left.

Whatever you decide I hope that it it the best decision for you and your wife. Out of interest, what state/city are you in?

Thanks

[Brother Hesekiel 2,236]

Mate,

Jim nailed it on the head. The key here is that you are still in status, without overstay. Once your AOS petition has been submitted, your status changes to "status pending" which, as ridiculously as it sounds, is a legal status as well.

Congratulations. Get that package out ASAP.

[Nina and Erwin 16]

2. When your 90 day lawful stay runs out then you fall into unlawful stay. There are 180 days that you are allowed to accrue unlawfully before you incur the 5 year ban however you need to leave before that happens. If you leave after you will have that ban. Basically if you overstayed by up to six months and left of your own free will then you would not incur the six month ban but you would also not be able to use the visa waiver program again.

If you were apprehended by Immigration and Customs Enforcement(ICE) within this unlawful time and deported then you would receive an automatic 10 year ban. The clock is usually suspended for those who came on a Visa whilst their application is being decided. I do not believe that is the case for those on the Visa Waiver Program (Someone correct me as Im probably wrong about that)

As for my situation: with regard to the Suspending of the clock.

This was not the case, that memo from the Director of ICE was published Aug 26, 2010. But in the memo it did not neither apply or not apply to the VWP. But as I and my attorney read the memo it appeared to apply to the other visas. My attorney did not feel that it applied to the VWP, although he could be wrong. (if anyone knows for sure in their situation that would be helpful) Just for piece of mind, that maybe the immigration government is adapting to current situations.

[RShift 0]

No problem. I believe that both of these concerns was answered by both Jim and Harpah. There isnt much that I would add to this other than to reiterate that if you do choose to adjust within the US make sure that you leave yourself about a week for USCIS to accept your application.

Calculate how many exact days you have been here in the US and see what you have left.

Whatever you decide I hope that it it the best decision for you and your wife. Out of interest, what state/city are you in?

Thanks

We're currently in Portland, OR.

Mate,

Jim nailed it on the head. The key here is that you are still in status, without overstay. Once your AOS petition has been submitted, your status changes to "status pending" which, as ridiculously as it sounds, is a legal status as well.

Congratulations. Get that package out ASAP.

So my status changes to "status pending" and all the time I'm here I'm here legally (assuming my application is accepted while I'm still in status), even over the 90 day VWP limit? But I'll still be banned if my adjustment is denied? Or have I misunderstood the previous posts? What would I be banned for if I haven't overstayed illegally?

[Harpa Timsah 13,258]

You would be banned for your deportation. Denial comes with a lovely pressie

[JimVaPhuong 4,863]

We're currently in Portland, OR.

So my status changes to "status pending" and all the time I'm here I'm here legally (assuming my application is accepted while I'm still in status), even over the 90 day VWP limit? But I'll still be banned if my adjustment is denied? Or have I misunderstood the previous posts? What would I be banned for if I haven't overstayed illegally?

You are granted a period of authorized stay while your adjustment of status is being adjudicated. The period begins when your petition is accepted, and ends when it's either approved or denied.

You won't be banned unless you are either deported or accumulate more than 180 days of overstay. If you manage to get your AOS petition accepted before your VWP stay expires then you will not become deportable unless and until your AOS petition is denied. I honestly don't know if they'll issue a deportation order in that case. They used to give you a limited amount of time to voluntarily leave the US, so I suppose it's still possible they would do that.