VWP to AOS, why is this allowed? (merged)

[toddandcase 0]

Hectic times call for crowd-sourced advice. I'm a USC that has lived abroad in Australia for 10+ years. In this time, I've married an Australian citizen and we've had two children. In the last few weeks, I've been given the indication that I MAY be in a position to gain a good job back in the U.S. The difficulty is that I have to be physically in the U.S. prior to progressing my application. Pending a successful job application, my family would hope to re-locate for likely 2-3+ years, possibly longer.

My two children are also USCs and would enter on US passports. My wife has no visa or green card.

If I take my family back for a 2-3 months to visit my relatives (wife entering on VWP) while I make further enquiry about the job, is it within reason to think that my wife could swap from VWP to AOS, subject to getting the job?

We've been married for more than ten years and would really prefer to take the more formal path of green card acquisition if we had more time to prepare, but I may need to be present in the U.S. in less than six weeks. It is obvious that this short time frame precludes any normal immigration application. The normal approach could also be a great expenditure of time and money that would be initially unnecessary if the job didn't materialize. Also, I'm not sure it is practical for me to leave my family in Australia for 6ish months or more while they wait on my wife's immigration approval.

Are there any other alternatives that are available? Is this a viable approach? I appreciate everyone's ethical contributions about 'intent' and so forth, but this feels a little different than the more common (and equally worthy) aspiration of entering on the VWP to get hitched and get a green card quickly. Or maybe I'm wrong, maybe I'm kind of looking to do the same thing (just with the marriage ceremony farther back in the past). I don't know. Really, I'm just trying to find out if there is a way to bring the family over and allow them to stay if I can get this job I'm chasing.

Happy to hear any thoughtful feedback or suggestions.

Cheers

[Transborderwife 4,666]

No. This is immigration fraud. You'd have to file for an ir1 for her that would take about a year. She would have to go through the process in Australia, however can visit in that time.

[toddandcase 0]

Thank you. Is there a limit on the number of 90-day visits my wife could make under the VWP, while we are going through the application? Is there any cause for worry that her VWP eligibility might be waived or she might be refused entry if we proceeded in this fashion?

What are the valid, non-fraudulent examples of VWP to AOS? Appears to be a common tactic, yet it's hard to understand why it exists at all. Certainly seems like most that post around going this direction have been successful and usually they have cited the 'whirlwind romance' scenario. Not to imply that it's not true for some, but it seems far-fetched in most cases. Yet, most seem to have little trouble with this method succeeding.

[Transborderwife 4,666]

Thank you. Is there a limit on the number of 90-day visits my wife could make under the VWP, while we are going through the application? Is there any cause for worry that her VWP eligibility might be waived or she might be refused entry if we proceeded in this fashion?

What are the valid, non-fraudulent examples of VWP to AOS? Appears to be a common tactic, yet it's hard to understand why it exists at all. Certainly seems like most that post around going this direction have been successful and usually they have cited the 'whirlwind romance' scenario. Not to imply that it's not true for some, but it seems far-fetched in most cases. Yet, most seem to have little trouble with this method succeeding.

It is possible that she could be denied entry without adequate ties to her home country. If she decided to show up at POE with no job, no ties, and a lot of luggage chances are she would be denied

[toddandcase 0]

I understand the concept of immigration fraud. I am not asking/suggesting how to circumvent US immigration law, however I find it very odd and confusing that VWP entrants are allowed to submit AOS applications.

What are the valid, non-fraudulent examples of entry via VWP and consequent AOS? It appears to be a very common tactic. There also seem to be a number of posts about successful VWP-to-AOS applications and usually they have cited the 'whirlwind romance' scenario. Not to imply that it's not true for some, but it seems far-fetched in most cases. to believe that so many people suddenly decide to get married and change their country of residence on a whim, all while on a short-term holiday.

There is plenty of staunch opposition on this site to attempting this manoeuvre, understandably given the potential consequences of committing immigration fraud and all of the pain and hassle that genuine applicants seem to go through. I've also read some posts citing rulings where USC spouses are not rejected on the sole basis of intention to immigrate.

I'm not advocating this approach nor am I requesting information on how to do it. I'm interested in hearing people's opinions on why this is allowed and if there are any other genuine circumstances in which it might be applied, outside of the impulsive marriage situation.

[Shauneg 762]

Who knows why it's allowed.

I believe most cases involve circumventing the usual immigration rules even as those involved claim haste decisions that weren't preconceived. The reality is that as long as you make it past immigration, you're intentions no longer matter as they've already let your in the door so to speak...

[toddandcase 0]

I agree. It appears to be a practical loophole for people that are willing to take their chances or get 'creative' with their story. Very bizarre that it is possible, given the stringency of other immigration applications.

The existence of a loophole in a very controlled system indicates a latent acceptance of the practice.

I should also say that I think that its very dangerous because it most definitely encourages something that is clearly illegal, as evidenced by the volume of conversation and enquiry around this approach.

Edited September 3, 2015 by toddandcase

[toddandcase 0]

Hypothetical:

A USC and non-citizen spouse take an extended holiday (utilizing VWP for the spouse) in the U.S. They purchase round-trip tickets back from their home country. They own a house in their home country and can demonstrate other significant ties. CBP allows a 90-day stay on the basis of such evidence and prior history of U.S. visits. While on holidays, for literally ANY reason, they decide that they might want to live in the U.S.

Is this a situation where an adjustment of status would be reasonable and not fraudulent?

Based on the logic adhered to in other conversations, this would seemingly be acceptable. Can anyone mount an argument to the contrary?

[JohnR! 5,495]

There isn't much to argue other than to caption the obvious: It's allowed because the law was changed. When VWP was first introduced it included a caveat that prevented AOS from VWP, which I think was fair and leveled the playing field. A couple of years later that was changed. Since then many have done it for legit reasons and other for purely fraudulent reasons.

IMHO, AOS should only be allowed for those bearing dual intent visas, with the exception, of K-1, for obvious reason. Everyone else should have to pick a number and wait in line as do all those who don't have the prerogative to abuse their VWP privilege.

I understand the concept of immigration fraud. I am not asking/suggesting how to circumvent US immigration law, however I find it very odd and confusing that VWP entrants are allowed to submit AOS applications.

What are the valid, non-fraudulent examples of entry via VWP and consequent AOS? It appears to be a very common tactic. There also seem to be a number of posts about successful VWP-to-AOS applications and usually they have cited the 'whirlwind romance' scenario. Not to imply that it's not true for some, but it seems far-fetched in most cases. to believe that so many people suddenly decide to get married and change their country of residence on a whim, all while on a short-term holiday.

There is plenty of staunch opposition on this site to attempting this manoeuvre, understandably given the potential consequences of committing immigration fraud and all of the pain and hassle that genuine applicants seem to go through. I've also read some posts citing rulings where USC spouses are not rejected on the sole basis of intention to immigrate.

I'm not advocating this approach nor am I requesting information on how to do it. I'm interested in hearing people's opinions on why this is allowed and if there are any other genuine circumstances in which it might be applied, outside of the impulsive marriage situation.

Edited September 4, 2015 by JohnR!

[JohnR! 5,495]

Hypothetically it could go either way. It really doesn't matter.

Hypothetical:

A USC and non-citizen spouse take an extended holiday (utilizing VWP for the spouse) in the U.S. They purchase round-trip tickets back from their home country. They own a house in their home country and can demonstrate other significant ties. CBP allows a 90-day stay on the basis of such evidence and prior history of U.S. visits. While on holidays, for literally ANY reason, they decide that they might want to live in the U.S.

Is this a situation where an adjustment of status would be reasonable and not fraudulent?

Based on the logic adhered to in other conversations, this would seemingly be acceptable. Can anyone mount an argument to the contrary?

[toddandcase 0]

There isn't much to argue other than to caption the obvious: It's allowed because the law was changed. When VWP was first introduced it included a caveat that prevented AOS from VWP, which I think was fair and leveled the playing field. A couple of years later that was changed. Since then many have done it for legit reasons and other for purely fraudulent reasons.

IMHO, AOS should only be allowed for those bearing dual intent visas, with the exception, of K-1, for obvious reason. Everyone else should have to pick a number and wait in line as do all those who don't have the prerogative to abuse their VWP privilege.

Yes, I agree with your assessment. The caveat should still be in place. It makes it very hard for new applicants to fully comprehend their options and to choose that which is best and most compliant with legislation. It also encourages at least consideration of abuse as EVERY immigrant is most interested in the ends, not the means. Understandably, this would be extremely frustrating to everyone that has done it the much longer, harder and more 'ethical' way. The ability to choose the easy/illegitimate road seems to benefit only those from VWP participating countries, too, creating an unfortunate systemic bias.

Thanks for the background on the AOS changes, @JohnR!

[Shauneg 762]

Hypothetical:

A USC and non-citizen spouse take an extended holiday (utilizing VWP for the spouse) in the U.S. They purchase round-trip tickets back from their home country. They own a house in their home country and can demonstrate other significant ties. CBP allows a 90-day stay on the basis of such evidence and prior history of U.S. visits. While on holidays, for literally ANY reason, they decide that they might want to live in the U.S.

Is this a situation where an adjustment of status would be reasonable and not fraudulent?

Based on the logic adhered to in other conversations, this would seemingly be acceptable. Can anyone mount an argument to the contrary?

Once accepted into the immigration intent doesn't matter even if they can prove that you intended all along to stay. Once past Border Patrol all is good, intent or not.....because they already deemed you not a risk to stay and cannot deny AOS based on that fact alone. Discussed all the time on here.

http://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3036.pdf

"In any case, as counsel for the respondent notes, a preconceived intent is only one factor to be considered in exercising discretion on an adjustment application, so the immigration judge erred in finding the respondent ineligible to adjust on that basis alone."

[Penguin_ie 5,985]

***** this thread is getting dangerously close to discussing immigration fraud and how to get away with it, so is now closed, per our TOS. Do not re-start it. *****