Immigrate with K-1 or change status from Tourist?

[Casprd 167]

It's illegal to enter with a non-immigrant visa with intent to migrate.

Yeah the AOS option is pretty great one, not having to be apart and all... and if she was in the US and you suddenly decided to do it then no problem, but because she's not in the US, you're now planning it to try and circumvent immigration laws, so its illegal. Sorry

No it isn't illegal. She is already here on a B2 visa.

My good childhood friend is visiting us on a B-2 (tourist) visa

Since she is already here and has visited several times in the past then I don't see it as a whirlwind romance but someone as you say that you have known since childhood so that won't be an issue, but because she is a childhood friend, they may be inclined to assume it is a marriage of convenience in order for her to stay here. Be prepared to provide all the evidence and go ahead with the plans to get married and the AOS route. It will be more expensive than getting married and going with the CR-1, but when you factor in additional international flights I would imagine it will more than balance out. If there is some concern about being able to prove the bona fide marriage then may want to consult with an immigration attorney.

[Harpa Timsah 13,258]

IMO, AOS is a tricky situation at the moment. It sounds like you are intent on her living in the US, so you have to consider if she incurred a 3 or 10yr ban id AOS is denied, would you be willing to move?

AOS for people who entered with valid visas is not tricky at the moment. There is an issue with people who enter on the Visa Waiver Program and overstay and try to adjust, but this situation does not apply to people who entered with valid visas AT ALL. The reasons for the VWP overstay issue has nothing to do with intent (at least formally) and everything to do with the fact that the person who uses the VWP signs away their rights to trial, and they are immediately deportable once they overstay, so applying for AOS after overstay would be asking for permission to repeal the deportation order in effect. This issue also does not indicate that other adjusters will have trouble in the near future. This issue does not apply to the OP, and does not apply to all AOS cases.

Furthermore, once the AOS is accepted, the beneficiary enters another period of authorized stay, so no 3 or 10-year ban will be incurred at all, as long as they file before her I-94 expires. In addition, the OP, since she entered on a valid visa, has the chance to appeal any negative decision and appear before a judge and plead her case. Prior to that, there would be multiple interviews in which they would have the chance to show their proof of bona fide relationship.

OP: They will need to be convinced that you have a bona fide relationship. An extremely short courtship is a negative factor, but that does not mean you can't overcome it. Also, since you have known her your whole life, I am not sure that you even qualify as having a short courtship Good luck whatever you decide.

Edited December 30, 2010 by Harpa Timsah

[ValerieA 350]

to what Harpa said. Since you are not a VWP overstay, you shouldn't have a problem. Just show good proof of a bonafide marriage, and congratulations on your marriage!

[Amy and Nick 37]

Well, 3 seperate lawyers told me that if the deny the AOS, the period of time that you were waiting turns into unauthorised stay, therefore incurring the bans if over 180 days. Of course, if the AOS is accepted then there is no issue, but this is my understanding of the ban.

I was also told that while the biggest problem at the moment with AOS on VWP is with those who have overstayed, a crackdown is happening for those who did NOT overstay also. I cant remember where ive seen this but in some circuits the USCIS is not able to grant ANY AOS on VWP. Hence why I did not do the AOS.

[ValerieA 350]

Jim seems to be busy today, so I am going to provide a link to a post he made in an earlier thread, regarding overstay and how the clock starts again once the negative decision is made - and is not retroactive. He is much more learned than I.

Overstay link

[Harpa Timsah 13,258]

Ahh, you may be right that if it is denied, the authorized period will be retroactively revoked, therefore incurring a ban. (Eek! see edit note below). In the end, if it was denied, then they will still probably get a deportation order, which would need a waiver to overcome anyway. So it's sort of a wash. However, before they got there there would be a lengthy appeals process, something a VWP entrant has no access to.

There is a precedent court case that establishes that if a VWP entrant who submits an AOS application before the 90 days authorized stay is over, then the application is to be adjudicated normally. If someone wants to cite the name of that court case, I'd be much obliged Amy and Nick, if someone told you otherwise, then I fear you have been given bad advice. The one difference with VWP AOS submitted without overstay is that the beneficiary cannot appeal any negative decision. So be happy that with your choice you have some peace of mind and other avenues if it's denied

OP- this is a reminder that this discussion does not apply to you Sorry to derail your thread

EDIT: Oh, thanks Valerie! I guess my initial thought was correct... now I need to remember which one is right in the future and not confuse myself! lol I left my first response unedited anyway; I don't want to seem like a meanie.

Edited December 30, 2010 by Harpa Timsah

[benita 0]

You folks are truly generous, we thank you :->

So you think that with her staying and adjusting status the main hurdle is proving bona fide love? I'm not scared of that at all to be honest, main concern was that she (happened to) quit her job before leaving, but eh. I guessed proving tourist entry with tourist intent (as opposed to immigration intent) would be hard to prove.

Well, changing status is starting to sound like a totally viable option, I'm really glad we asked. Assuming a lawyer isn't involved it should in the end be cheaper considering flights (Armenia is a good 12 timezones away, no less).

One more question then, just to be sure, this is the relevant guide, right? http://www.visajourney.com/content/i130guide2

OP: They will need to be convinced that you have a bona fide relationship. An extremely short courtship is a negative factor, but that does not mean you can't overcome it. Also, since you have known her your whole life, I am not sure that you even qualify as having a short courtship Good luck whatever you decide.

Surprisingly no, we've always been great friends, discussed relationship in the past, and ruled it out. Something changed this time around :->

Edited December 30, 2010 by benita

[ValerieA 350]

Yup, that is the right guide! Good luck!

Note: I quit my job before coming to the US from Canada on a B-2, and had given up my apartment. They limited my stay to 90 days at entry, from the 180 I had planned, and I ended up overstaying (but not past the additional 180 days before filing my AOS). My interview was easy peasy. I don't think you have that much to worry about.

[Harpa Timsah 13,258]

You folks are truly generous, we thank you :->

So you think that with her staying and adjusting status the main hurdle is proving bona fide love? I'm not scared of that at all to be honest, main concern was that she (happened to) quit her job before leaving, but eh. I guessed proving tourist entry with tourist intent (as opposed to immigration intent) would be hard to prove.

Regarding immigrant intent - you don't have to prove your innocence, the IO has to prove your guilt. Even so, immigrant intent is not enough of a negative factor to cause an AOS denial by itself. Good luck.

[USUY2010 4]

This kind of reminds me of our case. So I shouldn't be reading the forum because it makes me freak out to hear all the different opinions after we've made our decision. But now that we are talking about overstay. I came here on a B2 my husband and I got married and then I overstayed the I-94 which ended in July. The plan was to mail all our packages in July, but as you can see we had a little bit of trouble and they kept being rejected. I-465 was finally accepted in September, therefore, all those months I was here on overstay. How negative is that? And what are the repercussions?

Sorry benita to "steal" your thread, but reading about this made me panic a little bit.

[payxibka 10,044]

Regarding immigrant intent - you don't have to prove your innocence, the IO has to prove your guilt. Even so, immigrant intent is not enough of a negative factor to cause an AOS denial by itself. Good luck.

inaccurate.... Immigrant intent is always presumed therefore no additional proof required... proof to the contrary would be needed if it was ever an issue raised

This kind of reminds me of our case. So I shouldn't be reading the forum because it makes me freak out to hear all the different opinions after we've made our decision. But now that we are talking about overstay. I came here on a B2 my husband and I got married and then I overstayed the I-94 which ended in July. The plan was to mail all our packages in July, but as you can see we had a little bit of trouble and they kept being rejected. I-465 was finally accepted in September, therefore, all those months I was here on overstay. How negative is that? And what are the repercussions?

Sorry benita to "steal" your thread, but reading about this made me panic a little bit.

your here in the USA, you are fine

[benita 0]

I'm not at all knowledgeable on this, but from what I understand so long as you don't overstay (or overstay by more than 180 days?) since they stamp the date they receive your first filing you are within law.

Merci again everyone for the advice!

[ceadsearc 515]

This kind of reminds me of our case. So I shouldn't be reading the forum because it makes me freak out to hear all the different opinions after we've made our decision. But now that we are talking about overstay. I came here on a B2 my husband and I got married and then I overstayed the I-94 which ended in July. The plan was to mail all our packages in July, but as you can see we had a little bit of trouble and they kept being rejected. I-465 was finally accepted in September, therefore, all those months I was here on overstay. How negative is that? And what are the repercussions?

Sorry benita to "steal" your thread, but reading about this made me panic a little bit.

You won't incur a ban if you didn't stay 180 days or more past your visa expiration. All the same, you probably won't be approved for re-entry if you were to leave the US because you would clearly have intent to immigrate, so don't leave until your green card is approved unless you have your AP already.

[USUY2010 4]

You won't incur a ban if you didn't stay 180 days or more past your visa expiration. All the same, you probably won't be approved for re-entry if you were to leave the US because you would clearly have intent to immigrate, so don't leave until your green card is approved unless you have your AP already.

I knew I couldn't leave, and I wasn't planning to. In fact I didn't even apply for AP because I know that I wouldn't be able to re-enter. I am just concerned about the possible effects on the interview or approval/denial of the case.

Thanks for all your input!

[Amy and Nick 37]

Its possible they could deny you, especially with the way VWP is at the moment, but I would do my best not to worry if I was you. If you want some more info, pay for an hours consultation with a GOOD immigration lawyer who is up to date on the current situations (i paid about $80 for a phone consult).