Child adjusting from VWP - question on 485 Part 1

[whatnext 0]

Hi,

We are submitting the AOS/I-130 package for my stepson. He is adjusting from the VWP and unfortunately it has expired.

What do we put for Part 1 on form 485 for the question 'Current USCIS status'? Should we put 'Visa Waiver program' and then put the date on his I-94 for 'expires on'?

Thanks in advance.

Edited April 13, 2009 by whatnext

[Chica Yeyé 41]

If her entry period under the VWP has expired, she is out of status and subject to deportation. As far as I understand, a child cannot adjust status, since she is not a spouse.

since I could be wrong, though I doubt it.

[whatnext 0]

thanks for your reply, but he can adjust because he is considered an immediate relative.

Edited April 13, 2009 by whatnext

[raymaga 25]

I didn't think a child could adjust status from VWP either, so I'll be interested to hear if anyone who knows for sure replies to this thread.

[Bobby+Umit 161]

This is similar to this thread:

VWP issue

The way I read it, you cannot AOS if you used the VWP.

Yes - if the person came over with an actual visa, then you could attempt to AOS, however, VWP stipulates you cannot do that.

I suggest you contact a lawyer.

[Chica Yeyé 41]

Thought as much. And overstays from visas, from what I gather, are only forgiven through marriage to USC. Thanks Bobby.

[whatnext 0]

quoting from the thread Bobby posted (from the directions for the I-485, adjustment of status:)

under 10. Who Is Not Eligible to Adjust Status.

one of the sections is:

K. You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old);

And I would assume that the reason they forgive overstays with spouses is because they fall into the category of 'immediate relatives'

[JERIII 8]

Thought as much. And overstays from visas, from what I gather, are only forgiven through marriage to USC. Thanks Bobby.

We should all reread the instructions for the I-485. Both of the issues discussed in this thread are covered in it. In the section that describes who is not eligible to adjust status, the following two sections appear:

F. You failed to maintain your nonimmigrant status, other than through no fault of your own or for technical reasons; unless you are applying because you are:

1. An immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old);

2. A K-1 fiancé(e) or a K-2 fiancé(e) dependent who married the U.S. petitioner within 90 days of admission; or

3. An H or I nonimmigrant or special immigrant (foreign medical graduates, international organization employees, or their derivative family members);

K. You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old); or

The first [F] covers the situations in which one can apply for AOS when one is out-of-status. In section 1, no distinction is made between spouses and other immediate relatives of Citizens.

The second (K) covers who may adjust from the VWP, again, all immediate relatives are included.

[whatnext 0]

thank you JERIII

so back to my original quetsion - what would you suggest we put for his 'current uscis status'

[Bobby+Umit 161]

Thought as much. And overstays from visas, from what I gather, are only forgiven through marriage to USC. Thanks Bobby.

We should all reread the instructions for the I-485. Both of the issues discussed in this thread are covered in it. In the section that describes who is not eligible to adjust status, the following two sections appear:

F. You failed to maintain your nonimmigrant status, other than through no fault of your own or for technical reasons; unless you are applying because you are:

1. An immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old);

2. A K-1 fiancé(e) or a K-2 fiancé(e) dependent who married the U.S. petitioner within 90 days of admission; or

3. An H or I nonimmigrant or special immigrant (foreign medical graduates, international organization employees, or their derivative family members);

K. You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old); or

The first [F] covers the situations in which one can apply for AOS when one is out-of-status. In section 1, no distinction is made between spouses and other immediate relatives of Citizens.

The second (K) covers who may adjust from the VWP, again, all immediate relatives are included.

Yes, it says that.

But your skipping over the Section 10, Part D - "your authorized stay expired before filing this application"

They are not "skipped" because you may meet another part of the that section.

Again - I urge the OP to contact a lawyer.

And to answer the OP's question, you would put "out of status" - that is the current status, correct?

[Bobby+Umit 161]

(this is from that other thread - I am posting here for clarification)

Ok, this was bugging me, and I contacted the CBP for clarification of this (and the I-485 K. section) just now.

I was sorta correct in what I wrote, but wrong in the K. section, sorta!

CBP told me that normally, you cannot AOS on the VWP, but, section K. of the I-485 allows it, if the person is related to a US citizen.

So I gave this scenario - USC Male marries immigrant - new wife wants to bring family member over (parent, spouse, widow, widower, or unmarried child under 21 years of age) after she is here (lpr/aos status - either one works)

Since she is not the USC, just a LPR/AOS, you cannot use section K. to AOS on the VWP.

The wife will need to be a USC before she can AOS any of the listed people. (CBP did say that if she had children, she should of brought them over on her initial application/petition).

CBP also stated if the USC adopts the immigrants children, before the VWP/AOS, then they are considered "immediate relatives" and they can AOS on the VWP.

Marriage on the VWP is also allowed, since the wife/husband immigrant is now an "immediate relative" - however in both scenarios, the immigrant must be eligible to AOS (According to the 10. Who is Not Eligible to Adjust Status?), so being out of status, for example, would negate the AOS attempt.

And you may have to prove your intent on coming over on the VWP was to visit, not AOS. (Similar to the visitors visa scenario).

The catch in section K is the wording. "unless you are an immediate relative of a U.S. Citizen"

So - in the OP's case, the person is "out of status" of the VWP, so they are not eligible for AOS, even if the USC has adopted the stepson.

Unknown if you can get a waiver - contact a lawyer.

Good luck

[NYPeach 13]

The overstay gets forgiven because the child is an immediate relative of a US citizen.

[NYPeach 13]

If her entry period under the VWP has expired, she is out of status and subject to deportation. As far as I understand, a child cannot adjust status, since she is not a spouse.

The reason the spouse can still adjust status after expiration is because a spouse is 'an immediate relative', not because they're a spouse, per se. And overstays for immediate relatives are typically forgiven.

An immediate relative is a parent, spouse, widow, widower, or unmarried child under 21 years old.

Stepchildren where the step relationship was created (i.e. marriage of stepparent to the biological parent) occurred prior to the stepchild's 18th birthday means that the stepchild is recognized as a child by USCIS, and is therefore an immediate relative.

[Bobby+Umit 161]

If her entry period under the VWP has expired, she is out of status and subject to deportation. As far as I understand, a child cannot adjust status, since she is not a spouse.

The reason the spouse can still adjust status after expiration is because a spouse is 'an immediate relative', not because they're a spouse, per se. And overstays for immediate relatives are typically forgiven.

An immediate relative is a parent, spouse, widow, widower, or unmarried child under 21 years old.

Stepchildren where the step relationship was created (i.e. marriage of stepparent to the biological parent) occurred prior to the stepchild's 18th birthday means that the stepchild is recognized as a child by USCIS, and is therefore an immediate relative.

Correct, they just have to prove that they didn't use the VWP to circumvent immigration laws if that is brought up during the AOS interview.

[NYPeach 13]

Correct, they just have to prove that they didn't use the VWP to circumvent immigration laws if that is brought up during the AOS interview.

yes, absolutely true.

Edited April 27, 2009 by Peachbythebeach