Already married plan to AOS on VWP

[moniquem 1]

Not sure if I should do concurrent filing I-130 and I-485 or another route? We got married (Dutch - US) in NYC 1 1/2 year ago. We both live most of the time in Costa Rica and we are traveling back and forth to the States on my VWP all the time. Now we want to spend more time in the States so I would like to become a resident. We entered on August 25 and we have all the documents ready for I-130, I-485, I-864, G-325A and planning on I-693 too before sending it off but now I'm confused if this is the right thing to do. We do need to go sometimes back to Costa Rica and I would like to continue to do this on VWP (normally not a problem, I've done this for 3 years already). What should I do?

[Inky 1,110]

If you start AOS you cannot leave the USA until you have AP or the green card.

Approx 3-4 months for AP card longer for green card.

It doesn't matter if you have VWP you cannot leave the USA unless you are willing to abandon the entire AOS process. You would then not be allowed to enter and start over because that is visa fraud. You would have to file CR-1 and wait out the process.

[moniquem 1]

Inky, thanks for your response.

So basically I can do the concurrent filing as I planned with I-130 I-485 but I cannot travel outside of the US until I receive AP, even if I will overstay my VWP in that case.

Can my US husband travel during this period? He is going to be my sponsor (I-864).

Thanks

[Inky 1,110]

Inky, thanks for your response.

So basically I can do the concurrent filing as I planned with I-130 I-485 but I cannot travel outside of the US until I receive AP, even if I will overstay my VWP in that case.

Can my US husband travel during this period? He is going to be my sponsor (I-864).

Thanks

You wont "technically" be overstaying because you will be in a " limbo of processing " You are allowed to stay during the processing because your immigrant status is Pending.

The USC can travel but would need to be there for your green card interview.

[moniquem 1]

Thanks again. So you think this is a good route to get my residency? It's not frowned upon?

[ceadsearc 515]

Not if you didn't come here with intentions to adjust, no. If you came with plans to do so, it's not just frowned upon but also illegal.

[NigeriaorBust 4,087]

AOSing from VWP is not something for already married people to attempt, it is hard to show you didn't have intent. It works for hormonally gifted people that could help but get married during a visit. You need to follow the CR1 path.

[ceadsearc 515]

Not necessarily, if OP and her husband have been coming back and forth with VWP frequently and never abused it and have not even been living here, it would have made much more sense for them to have done the CR-1 process to begin with. The fact that they've never stayed before nor had any plans to could easily show that they did not intend to adjust and changed their minds. The burden of proof is on USCIS to prove they intended to stay and intent alone is not used to deny.

Unless, of course, they planned to, in which case yes, they need to use the CR-1 process.

[moniquem 1]

Thanks everybody for their responses. For the past 3 to 4 years we have been going back and forth every 2 months between Costa Rica and US. Normally we would stay here for 2 weeks and once we stayed a month. From here we always go back to Costa Rica and once a year back to the Netherlands. I never overstayed my VWP. The immigration officers never give me a hard time when we enter the States, they ask some questions but because we're married it's never an issue. Now we decided to make my stay here legal and it wasn't really planned to do it this time but it's the rainy season now in Costa Rica and slow with work and we're having a good time here so we thought we might as well do it now. My mother is sending my vaccination information by email later today for my exam. I guess if we really intended it we would have done it straight after our arrival but we didn't. I think I'm going to chance this route.

[ceadsearc 515]

If you didn't plan it and didn't lie to CPB at your POE you should be fine. Keep in mind you'll need a medical exam from a civil surgeon in addition to a vaccination record. Good luck!

[Kathryn41 3,205]

Where do you plan to live? In the US or in Costa Rica? Permanent Residency means just that - you are permanently residing within the US, so if you intend to reside primarily in Costa Rica and continue to come to the US you may find yourself at odds with the residency and physical presence requirements of permanent residence status. It would be a good idea to read over these links first so you know what your obligations are as a PR of the US:

"After A Green Card is Granted" (8 links) http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f1903a4107083210VgnVCM100000082ca60aRCRD&vgnextchannel=f1903a4107083210VgnVCM100000082ca60aRCRD

"Welcome to the United States: A Guide for New Immigrants" http://www.uscis.gov/files/nativedocuments/M-617.pdf