Marriage and changing status from a visa waiver entry

[SusieQQQ 11,584]

2 minutes ago, Boiler said:

Says they were Consulate concerns?

It says if someone adjusts status within 90 days of entering in a non immigrant status, that they should be presumed to have had immigrant intent on entry and the burden is on them to prove otherwise. This is supposed to replace the old 30-60 day rule, but the uscis manual has not been updated to reflect this yet (.....well, kind of.... it still refers to the 30-60 day rule and the uscis policy manual gives a link in FAM that the 30-60 day rule refers to, but this link now takes you to the new 90-day rule.....and down the rabbit hole, apparently)

so I guess the question is, did uscis ever take decisions based on the 30-60 day rule? I know it was never intended to be binding, but was it ever used at all?

 

 

[Boiler 43,436]

FAM = Foreign Affairs Manual

 

That rule which does not actually exist has been discussed here and elsewhere many many times. Refuses to die.

[SusieQQQ 11,584]

7 minutes ago, Boiler said:

FAM = Foreign Affairs Manual

 

That rule which does not actually exist has been discussed here and elsewhere many many times. Refuses to die.

Yet referred to in uscis manual

but not in use?

 

ah, bureaucracy...

[mcdull 474]

20 hours ago, Georgia16 said:

I am SO against that it is allowed to adjust from a tourist visa! Hopefully they will end that.

 

That being said you can adjust as you are in the states now. 

 

That you run out of you authorized stay is "ok" try and send in the papers for your AOS as soon as possible that will give you an authorized stay until they have made a decision. You will not be able to work or leave the country and return until you get your EAD/AP card which you apply for along with the AOS package that will take around 4+ months to get them so just be aware that you will not be able o work and in most states you can get a DL either.

 

Follow this guide:  http://www.visajourney.com/content/i130guide2

once in a rainbow moon, people do fall in mad crazy love and get married shortly after.

 

But alas, it happens a bit too often on VJ. :0

[Italian_in_NYC 259]

The VWP is the equivalent of a tourist (or business) visa, the B1/B2, it is definitely not a dual-intent visa (like the H1B, for example).

You can do AOS (it is permitted), but be prepared for extra scrutiny to prove that your intent changed after you were admitted.

Safest way is to leave and apply for a CR-1 visa (takes a year or so).

[Boiler 43,436]

Extra scrutiny? Where did you get that idea from?

[Italian_in_NYC 259]

9 hours ago, Boiler said:

Extra scrutiny? Where did you get that idea from?

They'd likely question the original intent when the applicant entered on the VWP.

[Boiler 43,436]

4 minutes ago, Italian_in_NYC said:

They'd likely question the original intent when the applicant entered on the VWP.

No

 

Irrelevant

[Italian_in_NYC 259]

6 minutes ago, Boiler said:

No

 

Irrelevant

Sure, you're right.

Let's just hope you don't practice law for a living.

 

And all the people from VWP countries that go through CR-1/IR-1 visas must be sadistic idiots, right?

[geowrian 22,335]

17 hours ago, Italian_in_NYC said:

The VWP is the equivalent of a tourist (or business) visa, the B1/B2, it is definitely not a dual-intent visa (like the H1B, for example).

You can do AOS (it is permitted), but be prepared for extra scrutiny to prove that your intent changed after you were admitted.

Safest way is to leave and apply for a CR-1 visa (takes a year or so).

Not quite equivalent...a traveler on the VWP has many limitations that a B1/B2 visa holder does not (especially with regard to removal). The only real advantage of the VWP (and it's a huge one) is it's so much easier/quicker/cheaper to get an ESTA than a tourist visa.

Intent is determined at POE. The OP doesn't have to show anything regarding intent. See Matter of Cavazos and Matter of Battista.

 

14 minutes ago, Italian_in_NYC said:

And all the people from VWP countries that go through CR-1/IR-1 visas must be sadistic idiots, right?

No, they are just following the law by applying for an immigrant visa. Others decide to AOS after entering without intent to stay. Things happen.

Edited November 15, 2017 by geowrian

[NikLR 13,220]

OP perfectly legal for you to stay and adjust status.  I don't care what that lawyer told you.  When you were admitted to the USA intent was established. 

If you want to stay then do so.  File whenever you are able.  Overstay is forgiven for spouses of US citizens.  If you decide to AOS do not leave the USA until you have advance parole.  

[Italian_in_NYC 259]

11 minutes ago, geowrian said:

Not quite equivalent...a traveler on the VWP has many limitations that a B1/B2 visa holder does not (especially with regard to removal). The only real advantage of the VWP (and it's a huge one) is it's so much easier/quicker/cheaper to get an ESTA than a tourist visa.

Intent is determined at POE. The OP doesn't have to show anything regarding intent. See Matter of Cavazos and Matter of Battista.

 

No, they are just following the law by applying for an immigrant visa. Others decide to AOS after entering without intent to stay. Things happen.

Hey, I agree with you.

I just said that there might be extra scrutiny on the original intent, which is understandable.

Things do happen, they just need to be explained.

[NikLR 13,220]

19 minutes ago, Italian_in_NYC said:

Sure, you're right.

Let's just hope you don't practice law for a living.

 

And all the people from VWP countries that go through CR-1/IR-1 visas must be sadistic idiots, right?

Some people just cant give up their previous lives due to work or other responsibilities.  Other people want to be able to work or travel asap.  Others enjoy the cheaper cost.  And some would be lying about their intent and choose not to do that, appropriately. 

 

I visited my husband 3 times after we were married.  Twice while we went through the cr1 process.  Since I have a child the inability to travel during AOS made it (and thus the k1 visa) a non-viable choice for us.  I also enjoy working and refuse to be a burden on anyone.  (Which is how I personally feel when I dont work and has no bearing on someone else or their plans.)  So while separations were painful, it was a necessary trial to our life together. 

[NikLR 13,220]

2 minutes ago, Italian_in_NYC said:

Hey, I agree with you.

I just said that there might be extra scrutiny on the original intent, which is understandable.

Things do happen, they just need to be explained.

There is no extra scrutiny.  The USCIS cannot deny an AOS due to intent alone.  

[mindthegap 2,521]

59 minutes ago, Italian_in_NYC said:

I just said that there might be extra scrutiny on the original intent, which is understandable.

Things do happen, they just need to be explained.

Nope. Intent is determined and questioned at POE.

If admitted, then lack of immigrant intent has been satisfied.

 

What the OP is considering remains legal.