Adjustment of Status on Visa Waiver Program (Unique Situation?)

[danielmalvarado 1]

Hello all, I'm a longtime reader, first-time poster. I have searched this forum extensively, and can't find anyone with this specific situation:

- She is an Australian citizen; I am a US Citizen

- We fell in love on the internet & phone.

- She came to America on VWP - Stayed for 3 months and returned to Australia.

- I went to Australia for 1 month and returned to US (VWP)

- I went to Australia for 3 months and returned to US (VWP)

- She came to America on VWP - I surprised her and proposed to her the day she arrived, and we got married the next day in Las Vegas. She stayed for 2 months, and returned to Australia.

- She came to America again on VWP - she is still here.

She has been here for 1 month, and because of the housing market here we're considering buying a home in Las Vegas and applying for AOS.

From lurking here, I know we are not allowed to appeal the decision, but does this seem like a risky and/or "lawyer-worthy" set of circumstances, or could I handle it with one of the guides available here?

Thank you so much for all of your contributions to this wonderful forum!

Sincerely,

--Daniel

[YuAndDan 153]

Very dangerous, after the marriage and leaving the USA, you should have file an I-130 for a spouse visa.

Do not attempt to AOS from VWP after entry to the USA already married, this is clear violation of the VWP, being married prior to entry shows strong immigrations intent, it is for visiting not immigrating, and the VWP stipulates there is no right to appeal when they deny.

There are many posts about USCIS getting hard on VWP adjustment, and denials.

I would file an I-130 for spouse visa, not overstaying the 90 days allowed by VWP, and return to home country for a spouse visa.

Bringing family member forum has to do with petitions for Parents, Siblings, and Children of US citizens. Moving to the correct forum, AOS from Tourist Visa...

Edited February 24, 2011 by YuAndDan

[canadian_wife 1,785]

With the way denials are coming from people adjusting from the VWP, I wouldn't play with that. Have her return to Australia when the terms of her admittance are over. You can file while she is in the US, but I'd play it safe and have her return

Good luck

[Deputy Purple 1,294]

In your favor, they need more than immigrant intent to deny AOS. For example if she lied to CBP about being married to a USC and they have record of it then she's committed Material Misrepresentation.

Against you is the fact that if they deny for any reason then she has NO right to appeal the decision.

It's a ####### shoot at this point since as others have said there seems to be a crackdown on VWP AOS (specifically if they overstay).

[danielmalvarado 1]

Thank you all for the sage advice --

If we were to go the lawyer route and she were denied, is it a 10-year ban? She can never come to America again even on VWP?

If she were to return to Australia and file, is there any rule about where *I* have to be when she files? In other words, can she be back home in Australia, and can I follow her on an Australian tourist Visa, and live with her there while we process her American visa? If so, can I start the I-130 while we're both still here, and continue it overseas?

Thanks for your patience and sorry for my ignorance -- this is all so confusing for both of us :\

[canadian_wife 1,785]

No, the bars only come into effect with overstays. WIth the new strictness on VWP adjustments there is very little a lawyer can do

You don't HAVE to be anywhere. You should maintain a residence in the US with a current mailing address. Yes, you can start it while she is in the US and finish it while she is in Australia (whether you are there or not - this process with an overseas spouse will take 8-10 months)

Stongly suggest you file now and she returns to Australia to complete the process. It will be longer and much more expensive, taxing if you are denied her AOS

Good luck

[Deputy Purple 1,294]

No, the bars only come into effect with overstays.

Actually, that would depend on the reason used for Denial. If they believe they have enough to charge her with Material Misrepresentation then it could result in a lifetime ban. I want to stress that unless she was taken into secondary and interrogated then there is probably zero chance of this.

Regarding the Lawyer, since she has no right to appeal the decision a lawyer would never get a chance to come into play.

[canadian_wife 1,785]

You are right, misrep comes with a ban. I didn't mention it because I didn't think it was relevant to the OPs case, but yes that can, and does, happen

Good luck

[Boiler 43,393]

I must have seen hundreds of threads on this very topic.

All of which get very confusing.

OP, have a consultation with a lawyer.

[JimVaPhuong 4,863]

In your favor, they need more than immigrant intent to deny AOS. For example if she lied to CBP about being married to a USC and they have record of it then she's committed Material Misrepresentation.

True for anything other than a VWP entrant. However, preconceived intent IS a violation of immigration law. An immigration officer can use this as a basis for denial, and it will not be overturned because nobody will ever get a chance to review the denial. A VWP entrant is completely at the mercy of the immigration officer - they are the judge, jury, and executioner.

Not denying solely on the basis of preconceived intent is a matter of USCIS policy, based on precedent cases. It's not a matter of law. Those cases provide guidance to an IO when determining how to apply their discretion. When their decision isn't subject to review or appeal then they can apply that discretion pretty much any way they see fit.

[coraliesolms 47]

You can visit her as much as you want while she is waiting in Aus. She left the US after you got married (shoulda tried adjust before that, but it woulda been tricky even then), and has now returned. Adjusting her status now, especially if she misrepresented herself at the border would be immigration suicide. Get all the paperwork together, file the CR-1 (I-130) and get it going. She can stay as long as she is allowed to in the US, when times up, you can follow her to Oz for a bit.

It would take about 8-10 months of processing if everything is done right, she will have an interview at the consulate in Australia and if that goes well, they will issue her an immigration visa. She will receive a greencard when she gets to the US and will be able to work and drive and all the good stuff.

Have a good day!

Edited February 25, 2011 by coraliesolms

[Myopia 93]

I must have seen hundreds of threads on this very topic.

All of which get very confusing.

OP, have a consultation with a lawyer.

It feels confusing but it is quite simple when you think about it.

VWP has issues. Bottom line. Its always better to immigrate using the proper channels than the VWP which is a ####### shoot.

I think you would get more relevant information here as you have actual experience than in an attorneys office at times!

[Boiler 43,393]

There is no 'proper' way.

People's prejudices are more evident in these threads than anything else.

[Deputy Purple 1,294]

True for anything other than a VWP entrant. However, preconceived intent IS a violation of immigration law. An immigration officer can use this as a basis for denial, and it will not be overturned because nobody will ever get a chance to review the denial. A VWP entrant is completely at the mercy of the immigration officer - they are the judge, jury, and executioner.

Not denying solely on the basis of preconceived intent is a matter of USCIS policy, based on precedent cases. It's not a matter of law. Those cases provide guidance to an IO when determining how to apply their discretion. When their decision isn't subject to review or appeal then they can apply that discretion pretty much any way they see fit.

Ouch, in that case I guess since she left & re-entered after getting married it would now be very dangerous for her to AOS since they can deny solely on preconceived intent.

[Christi85 86]

There is no 'proper' way.

People's prejudices are more evident in these threads than anything else.

It's not about prejudice.

Since the US immigration law provides for the spouses or fiance(e)s of US citizens to follow a certain process should they wish to immigrate to the US, this is what prospective immigrants in these categories are expected to follow. Add to that the fact that no ConOff will deny a visa to the spouse/fiance of a US citizen (as long as the bona fides is proved and unless there are other issues that make him/her ineligible to enter the country), you can see how this route is very safe and as guaranteed as you can get when it comes to immigration. The VWP on the other hand is not to be used with immigration intent under normal circumstances, which is why it can backfire and cause trouble. In the recent past it's been backfiring for more and more people than it used to up until a year or so ago. In the OP's case, there's a realistic possibility that it can backfire too.

My opinion would be for the OP to go the way provided by immigration law. Sounds like you have a straightforward case and a bona fide marriage which you can prove, so your wife should have no problem being approved for an immigrant visa at her Australia consulate. Yes, the time apart and the wait sucks! If you could arrange to visit each other while the process is ongoing (better if you visited her in Australia or you could always take a trip together somewhere) that would help you go through those hard months of waiting.