Married under visa waiver

[FrancescoBD 0]

Hi everybody,

This july I arrived in California to visit my girlfriend (US Citizen)under the visa waiver program.

A week later we took a trip to Canada and when we were coming back to the US the immigration officer didn't renew my admission since I was already admitted when I first flew to LAX a few weeks before.

A few weeks later we decided to get married. Now we are trying to understand what to do in order for us to stay together.

I have a few questions I hope you will be able to answer.

1° Apparently USCIS is going paperless so unlike the other times I came to the US, this time I didn't have to fill out any green paper (I-94). In order to complete the AOS and the I-130 we need my admission and departure number(#I-94)...

Is there a way I can get that number somewhere else? What should I do if I can't get it?

2° Since the immigration officer in Canada didn't put the admission stamp on my passport, should I consider as my last port of entry that one I first came to this july?

3° When we got married we both changed our last name. Should we use our maiden names or the new ones to fill the forms?

Thanks in advance for your help.

[Paloma&Adam 1]

Hi everybody,

This july I arrived in California to visit my girlfriend (US Citizen)under the visa waiver program.

A week later we took a trip to Canada and when we were coming back to the US the immigration officer didn't renew my admission since I was already admitted when I first flew to LAX a few weeks before.

A few weeks later we decided to get married. Now we are trying to understand what to do in order for us to stay together.

I have a few questions I hope you will be able to answer.

1° Apparently USCIS is going paperless so unlike the other times I came to the US, this time I didn't have to fill out any green paper (I-94). In order to complete the AOS and the I-130 we need my admission and departure number(#I-94)...

Is there a way I can get that number somewhere else? What should I do if I can't get it?

2° Since the immigration officer in Canada didn't put the admission stamp on my passport, should I consider as my last port of entry that one I first came to this july?

3° When we got married we both changed our last name. Should we use our maiden names or the new ones to fill the forms?

Thanks in advance for your help.

My advice... Do NOT pursue this route of immigration. With the visa waiver, you essentially signed away any rights to appeal, if for whatever reason USCIS doesn't like something in regards to your case, they can deny you, deport you, and you would not be able to do anything about it. If you do choose to go this route, you will need to be extremely convincing at the interview that the marriage was not entered into for the purpose of immigration. There could be a possibility everything will go fine, but it is still a big risk.. do you really want to take that risk? You could even be barred from returning to the US for several years.

I too recently got married in the US under a visa waiver and then returned home and I am now currently pursuing the proper way to immigrate there.. which is the CR-1/IR-1 visa. Yes it means we have to be apart for several months, but at least we can both sleep peacefully at night knowing we're doing things the correct way..

Edited October 14, 2010 by Paloma&Adam

[VanessaTony 3,567]

Just in regards to BOTH of you changing your last names... be careful. Some states DO NOT recognise this change but even in states that do, sometimes USCIS can be a pain about it. There is a post around here somewhere where someone's having issues with it....

here: http://www.visajourney.com/forums/topic/276025-uscis-wont-recognize-name-change-state-of-mn/

[pushbrk 12,105]

Hi everybody,

This july I arrived in California to visit my girlfriend (US Citizen)under the visa waiver program.

A week later we took a trip to Canada and when we were coming back to the US the immigration officer didn't renew my admission since I was already admitted when I first flew to LAX a few weeks before.

A few weeks later we decided to get married. Now we are trying to understand what to do in order for us to stay together.

I have a few questions I hope you will be able to answer.

1° Apparently USCIS is going paperless so unlike the other times I came to the US, this time I didn't have to fill out any green paper (I-94). In order to complete the AOS and the I-130 we need my admission and departure number(#I-94)...

Is there a way I can get that number somewhere else? What should I do if I can't get it?

2° Since the immigration officer in Canada didn't put the admission stamp on my passport, should I consider as my last port of entry that one I first came to this july?

3° When we got married we both changed our last name. Should we use our maiden names or the new ones to fill the forms?

Thanks in advance for your help.

If you note "Visa Waiver Visitor" as your current status and last entry status and "none" for the I-94, they'll know how to deal with that. Your last POE is what it is. Answer all questions truthfully and accurately. Use your current legal name on all forms.

People successfully adjust status from the Visa Waiver program frequently. As long as you made no material misrepresentations on your last US entry, you should be treated like anybody else who is adjusting status based on marriage to a US Citizen after any kind of legal entry to the USA.

[FrancescoBD 0]

Hi,

I wanted to thank you all for finding the time to answer, however we still feel kind of uncertain about what route we should take:

If you note "Visa Waiver Visitor" as your current status and last entry status and "none" for the I-94, they'll know how to deal with that. Your last POE is what it is. Answer all questions truthfully and accurately. Use your current legal name on all forms.

People successfully adjust status from the Visa Waiver program frequently. As long as you made no material misrepresentations on your last US entry, you should be treated like anybody else who is adjusting status based on marriage to a US Citizen after any kind of legal entry to the USA.

0

This answer is great, it does clearify the idea of how I should move through this process, thank you. Although it would be amazing if you guys knew for sure that going through this process won't get me into any trouble or delay the process. Do you know anybody who has experienced the same thing successfully?

My advice... Do NOT pursue this route of immigration. With the visa waiver, you essentially signed away any rights to appeal, if for whatever reason USCIS doesn't like something in regards to your case, they can deny you, deport you, and you would not be able to do anything about it. If you do choose to go this route, you will need to be extremely convincing at the interview that the marriage was not entered into for the purpose of immigration. There could be a possibility everything will go fine, but it is still a big risk.. do you really want to take that risk? You could even be barred from returning to the US for several years.

I too recently got married in the US under a visa waiver and then returned home and I am now currently pursuing the proper way to immigrate there.. which is the CR-1/IR-1 visa. Yes it means we have to be apart for several months, but at least we can both sleep peacefully at night knowing we're doing things the correct way..

For the last few years we have been doing back and forth from Italy to US. We are honestly really tired of it.

We had no idea we were going to get married when I came here, now that we are we really don't want to be apart anymore.

[Krikit 1,163]

You'll find lots of people who have done/are doing this in the forum I am going to transfer your thread to.

Transferring from IR-1/CR-1 forum to AOS From Other Visas. Welcome to VJ.

[FrancescoBD 0]

You'll find lots of people who have done/are doing this in the forum I am going to transfer your thread to.

Transferring from IR-1/CR-1 forum to AOS From Other Visas. Welcome to VJ.

Great!!!! thank you.

[trillium13 84]

VWP is valid for 90 days isn't it? Have you passed this point yet? There have been issues as of late with people trying to adjust from VWP with overstay.

How much overstay would be an issue I can't say-but something to consider.

[JimVaPhuong 4,863]

1° Apparently USCIS is going paperless so unlike the other times I came to the US, this time I didn't have to fill out any green paper (I-94). In order to complete the AOS and the I-130 we need my admission and departure number(#I-94)...

Is there a way I can get that number somewhere else? What should I do if I can't get it?

You don't receive an I-94W anymore. The information it would have contained are now in the ESTA system. You also agreed to the same terms of entry when you used the ESTA system to enter the US. You won't need an I-94W number for the I-485.

2° Since the immigration officer in Canada didn't put the admission stamp on my passport, should I consider as my last port of entry that one I first came to this july?

Yes. You were not processed for readmission, but were admitted as a continuation of your previous admission.

3° When we got married we both changed our last name. Should we use our maiden names or the new ones to fill the forms?

Whatever your legal name is at the time you submit the paperwork, that's the name you must use. Hopefully, the marriage certificate clearly shows your names prior and subsequent to the marriage. As Vanessa mentioned, if you get a hard headed IO then this might cause you some grief. Hopefully not.

Now a question - you entered using the VWP in July. It's now October. Has your VWP authorized stay expired, or is it about to expire soon? If you don't get your AOS petition accepted before your VWP authorized stay expires then you may be in for some hot water. Your AOS petition is accepted on the day USCIS generates the I-797C notice of acceptance.

Some recent cases in several federal appeals court districts have established that a VWP entrant who overstays is immediately deportable - no appeal, no hearing in front of an immigration judge. As a result, USCIS field offices in some districts have been denying AOS applications for VWP overstays and issuing an order of deportation. Some VJ members have been saying that their AOS application has been put on hold, apparently pending a uniform policy directive from the director of USCIS.

If you are not absolutely certain that your AOS application will be accepted by USCIS before your VWP entry expires then you should know you could be taking a serious risk by trying to adjust status. Not only could your AOS application be denied, but you could be deported. The deportation would result in a 10 year ban from the US. The situation is still very fluid, and the results seem to depend on which federal appeals court district you live in, at least right now.

Here is a recent lawyer's article about this situation at the San Diego field office, but what is going on at that office is apparently going on at many other USCIS field offices:

http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

There are plenty of similar articles you can find, if you spend a little time with google.

If you think there is any chance your AOS application will not be accepted before your VWP stay expires then you probably should not risk it. Return home and your USC spouse can file for a spousal visa. There is much less risk by following the normal immigrant visa process.

[FrancescoBD 0]

I have not overstayed the VWP yet, I am allowed to stay here legally untill October 21st.

Today I called an attorney and we are gonna have a meeting this week. I also found a way to get my I94w through "This list" and another interesting thing is that the immigration website says that if you need the I94w number for AOS you can contact them and ask (here is the link), so it's probably not that forbidden to apply for the AOS under visa waiver since they even tell you that if you need the proper documentation for the AOS they will provide it to you!

Edited October 15, 2010 by FrancescoBD

[FrancescoBD 0]

You don't receive an I-94W anymore. The information it would have contained are now in the ESTA system. You also agreed to the same terms of entry when you used the ESTA system to enter the US. You won't need an I-94W number for the I-485.

Yes. You were not processed for readmission, but were admitted as a continuation of your previous admission.

Whatever your legal name is at the time you submit the paperwork, that's the name you must use. Hopefully, the marriage certificate clearly shows your names prior and subsequent to the marriage. As Vanessa mentioned, if you get a hard headed IO then this might cause you some grief. Hopefully not.

Now a question - you entered using the VWP in July. It's now October. Has your VWP authorized stay expired, or is it about to expire soon? If you don't get your AOS petition accepted before your VWP authorized stay expires then you may be in for some hot water. Your AOS petition is accepted on the day USCIS generates the I-797C notice of acceptance.

Some recent cases in several federal appeals court districts have established that a VWP entrant who overstays is immediately deportable - no appeal, no hearing in front of an immigration judge. As a result, USCIS field offices in some districts have been denying AOS applications for VWP overstays and issuing an order of deportation. Some VJ members have been saying that their AOS application has been put on hold, apparently pending a uniform policy directive from the director of USCIS.

If you are not absolutely certain that your AOS application will be accepted by USCIS before your VWP entry expires then you should know you could be taking a serious risk by trying to adjust status. Not only could your AOS application be denied, but you could be deported. The deportation would result in a 10 year ban from the US. The situation is still very fluid, and the results seem to depend on which federal appeals court district you live in, at least right now.

Here is a recent lawyer's article about this situation at the San Diego field office, but what is going on at that office is apparently going on at many other USCIS field offices:

http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

There are plenty of similar articles you can find, if you spend a little time with google.

If you think there is any chance your AOS application will not be accepted before your VWP stay expires then you probably should not risk it. Return home and your USC spouse can file for a spousal visa. There is much less risk by following the normal immigrant visa process.

Thanks a lot for your anwer you really cleared out my doubts.

I still have a week before my Tourist Visa will expire.

We got married within the 90 days and I already have my medical exams and everything I need to fill out the application so maybe if I move fast enough I won't be applying as an overstayed waiver but as a still legal tourist in the US(I think).

Anyways I see how delicate and complex the whole situation is, so we are consulting with an attorney and we'll make sure that everything is ok and I won't get deported (hopefully).

[FrancescoBD 0]

By saying "I already have my medical exam", I mean " I already have my I-693, Medical Examination of Aliens Seeking Adjustment of Status"

Sorry for being unprecise and thanks again for all your help, it's really helping us understand.

Edited October 15, 2010 by FrancescoBD

[VanessaTony 3,567]

If I were you I would send the documentation now... as in today, before the end of the day. If you're missing something you'll get an RFE but at least you'll have an NOA1 hopefully BEFORE your VWP time expires. You really are cutting it close. you technically have FIVE business days until your stay has expired. I sent my stuff on the 12th April, it was processed 20th April. That's 8 days it took them...

Edited October 15, 2010 by Vanessa&Tony

[Paloma&Adam 1]

Quite honestly, this situation is a huge risk. There is not enough time. What if your documents got lost in the mail or something when sending to USCIS?? What if some other unforeseen circumstance occurs that prevents you from getting things done in time?

You're willing to spend your whole life with your spouse, what's a few months of waiting to get the appropriate visa? Nobody wants to have to be apart from their loved ones, but sometimes peace of mind means ALOT. PLEASE consider what you are doing very carefully, and I wish you the best of luck.

[Brother Hesekiel 2,235]

Thanks a lot for your anwer you really cleared out my doubts.

I still have a week before my Tourist Visa will expire.

We got married within the 90 days and I already have my medical exams and everything I need to fill out the application so maybe if I move fast enough I won't be applying as an overstayed waiver but as a still legal tourist in the US(I think).

Anyways I see how delicate and complex the whole situation is, so we are consulting with an attorney and we'll make sure that everything is ok and I won't get deported (hopefully).

So you do have a tourist visa after all?

In that case you are fine. All the advice given in light of your possible (and likely) suicide mission was based on the fact that you do not have any visa, arrived as a participant of the VWP. If you have a visa, the world of appeals is open to you and everything will go smoothly.