VWP to AOS...

[BlueRain77 0]

Ok I mentioned this on another thread but I thought if someone outside the US comes in using a VWP or any entry method for that matter, if they marry a US Citizen and file for an AOS within the US and want to not leave the US the USCIS has an absolute fit and make it very difficult on the people and it takes FOREVER and a Day to get that first initial Green Card...

Anyone know anything about this???

[rushter 0]

This almost sounds like it has its roots in the 'urban legend' arena.

From reading hundreds of accounts of performing an aos based on situations like this, my opinion would simply infer that the uscis follows the letter of the law and procedures as they are written at that time. Inferring personal bias at adjudication (USCIS has an absolute fit) by any of them in the process to the end results that you state (takes FOREVER and a Day) is just not within the mechanisms of the system.

Of course, someone at the uscis could 'lose' a document somewhere, perform a needless rfe when the evidence is actually there, etc... but it seems to happen more often with folks that went the normal procedural route than those that came in (to the US) and did something different.

The USCIS is a black hole. The only places that shed light on the workings of it are actual user experiences you will see posted here and other forums. In your specific scenario, there are not so many, but most that are posted are those that are successful and quite happy with their results.

Where all bets are off though, imo, is overseas at the consulates which operate under the department of state and have their own set of jurisdictional priorities and processes. There is a thread somewhere here where a person entered, married, and aos'd under similar circumstances that you state. They attempted to get family members to come to the usa to visit and the consulate turned them down in a millisecond simply because the first person came thru and adjusted using a tourist or similar visa type.

All that shows is that your history can follow you (even if you aos under dissimilar circumstance from your entry visa) and you should be prepared for any future adverse reactions from what you decide to do.

[Paul and Melanie 0]

If you call 5 months long, then yeah. That's how long it took us without any problems at all.

[meauxna 15]

Ok I mentioned this on another thread but I thought if someone outside the US comes in using a VWP or any entry method for that matter, if they marry a US Citizen and file for an AOS within the US and want to not leave the US the USCIS has an absolute fit and make it very difficult on the people and it takes FOREVER and a Day to get that first initial Green Card...

Anyone know anything about this???

Interesting theory.

Why do you ask?

[BlueRain77 0]

Ok read up on this...basically if you were planning to come over and get married without a K-1 then you are committing Visa Fraud, unless you can prove that the Foreign National came over just to visit and that you Just decided to get married without prior arrangement.

[rushter 0]

This is a can-o-worms topic...

Here's some references:

http://www.visajourney.com/forums/index.php?showtopic=14301

http://www.visajourney.com/forums/index.php?showtopic=12446

http://www.visajourney.com/forums/index.php?showtopic=5615

http://www.visajourney.com/forums/index.php?showtopic=10375

Edited June 11, 2006 by rushter

[j&js 0]

If you have already applied for and are in the process of getting a K1, then it will become clear that you entered the country with the intent to marry, thus to commit immigration fraud. Whether or not they would do something about this I do not know.

[mrs.jenjen 0]

I did exactly what you're talking about - WITH a 90 day overstay, I might add (from when my VWP expired to getting married) and it took three months.

Obviously you have to be prepared for the USCIS to ask WHY you didn't go the 'proper' way, but they do seem to be pretty lenient from what I can tell.

Its a gamble not getting the K1, because as I have read that there is apparently a little known about paragraph on the VWP card you sign saying you have no recourse to an appeal if you do AOS this way and get denied - but in my case it paid off, and I didn't have to spend one second away from hubby once we were married.

Whether you choose to take this gamble is ultimately down to you!

Check out my timeline for how long it took me on the DORA program!

[Collie 122]

Ditto to what Jen said. I entered on the vwp, married and on the day of my interview I had 111 days of an overstay accumulated and the officer didn't even ask why I over-stayed. You cannot however leave the US until you have the Greencard in your hand or the advance parole document and if you do you will be likely denied at POE.

Good luck

[meauxna 15]

mrs.jenjen & Collie:

Did you plan ahead to enter, marry and apply to Adjust Status?

That is an important detail when answering someone's question, when it's worded as it is here.

[mrs.jenjen 0]

meauxna,

As far as I'm concerned, I just give the facts. I know, and I make sure whoever I'm talking to knows that the only way AOS from the VWP is permitted is if it is a marriage on the spur of the moment.

However, you and I both know that proving intent to marry is pretty impossible in many cases, and not routinely looked into by the USCIS. At my interview the lady didn't even seem bothered about whether our wedding was pre-planned or not - her emphasis was on determining that we had a valid marriage and had entered into it for the right reasons.

As to me personally whether I had intended on getting married when I entered the US - I don't really know the answer. I had printed out the forms for a K1, and as far as I know I left on them on a table in my parents dining room. We had talked about marriage extensively on previous visits, and we had pretty much made the decision that we would marry 'at some point' - but no date had been set as hubby was waiting for his divorce papers.

I personally left the UK under a huge black cloud after some pretty horrific fights with my family, and I do remember boarding the plane and wishing that I would never have to go back.. so in many ways that COULD be interpretted as having immigrant intent, but no formal decision had been made at that point to adjust or marry or any of those things. My only ties to the UK when I left were a J Reg Nova on my parents drive, and a british bank account. I did not hide anything at the POE, and would have explained all of this if questioned.

I'm being honest here because I don't see any reason not to be. However, I am fully aware that AOS the way I did is something which is severely looked down upon within this community for whatever reasons - so if anyone wants to criticise me, then go right ahead!

The way I see it, is people are entitled to have all the information out there for them to read if they are considering applying for a K1 or marrying a USC. I make sure I try and give an unbiased explaination of my experience, including details of the apparent risks of adjusting the way I did. I am the first to admit that it is a gamble to adjust this way, and is a total loophole, but I expect people to make up their own minds about which route they feel happiest taking.

[Kez/JWolf 6]

mrs.jenjen

Thank you for your honesty.... I too came on the VWP and did AOS... while at the time of entry I had no intention of staying forever in the US we had talked about getting married but had not set any dates or really made any plans... and like most we were never asked about our intentions at our interview... But yes you are right there are risks involved and as long as you know the risks and you can live with them then there is nothing illegal about doing AOS from VWP as long as you did not plan to do it that way to avoid having to apply for K1....

Kezzie

[meauxna 15]

mrs.jenjen,

Please don't misunderstand--you don't know me or my views on the VWP AOS topic, because I've neer posted any (not lately anyway).

My Devil's Advocating is not about adjusting from a VWP, which we both know *is* legal, but with exposing others to problems by appearing to advocate *planning* for a 'spur of the moment' event.

For context, and some sensible replies on the topic (pay close attention to Folinskyinla, check out this thread:

http://britishexpats.com/forum/showthread.php?t=380369&

However, what I DO have problems with is advice on how to PLAN to circumvent the law. When I started participating in this NG four years ago, there was a lot of talk on how to make a "clean entry" and how to use the so-called "30-60 rule" [which is not a planning rule -- and many attorneys and DHS officers misunderstand it -- don't get me started].

And my problem is not on "moral" grounds -- I've been doing this for 30 years and I'm speaking from experience. I am CURRENTLY handling a Section 246 Recission case where client was granted adjustment after a long hard fight. DHS is now saying that on the SAME FACTS, the case should not have been approved. Although this is not a VWT entry case, DHS is now saying "Oops, we shouldn't have approved that case because there was immigration fraud here."

It's not just what it might do to someone else, it's also what might happen to you:

However, there IS a problem in "encouragement" as you put in that discussion can be easily be taken as how to PLAN future actions to violate the law and then "get away" with that violation. It is the act of "encouragement" itself that MIGHT be a violation of the law.

I've had occassion to research 18 USC 2, the Federal Conspiracy statute. Although it was in an immigration context, there was much in the way of prosecution of people promoting tax evasion schemes by parading as tax avoidance [there is a difference between "avoidance" and "evasion."]

It's a vicious cycle: Warnings are posted about where/what point the law may be being broken or bent. This is recycled and reworded til people start saying 'it is illegal to come to the US and get married!'. Then the folks who did AOS from the VWP under *very different circumstances* get defensive and want to show that their way is right, but forget about the different fact pattern. Then someone from outside the US reads it and makes a mistake.