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danielmalvarado

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

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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

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Filed: Citizen (apr) Country: China
Timeline

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 by YuAndDan

OUR TIME LINE Please do a timeline it helps us all, thanks.

Is now a US Citizen immigration completed Jan 12, 2012.

1428954228.1592.1755425389.png

CHIN0001_zps9c01d045.gifCHIN0100_zps02549215.gifTAIW0001_zps9a9075f1.gifVIET0001_zps0a49d4a7.gif

Look here: A Candle for Love and China Family Visa Forums for Chinese/American relationship,

Visa issues, and lots of info about the Guangzhou and Hong Kong consulate.

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Filed: Citizen (apr) Country: Canada
Timeline

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


USCIS
August 12, 2008 - petition sent
August 16, 2008 - NOA-1
February 10, 2009 - NOA-2
178 DAYS FROM NOA-1


NVC
February 13, 2009 - NVC case number assigned
March 12, 2009 - Case Complete
25 DAY TRIP THROUGH NVC


Medical
May 4, 2009


Interview
May, 26, 2009


POE - June 20, 2009 Toronto - Atlanta, GA

Removal of Conditions
Filed - April 14, 2011
Biometrics - June 2, 2011 (early)
Approval - November 9, 2011
209 DAY TRIP TO REMOVE CONDITIONS

Citizenship

April 29, 2013 - NOA1 for petition received

September 10, 2013 Interview - decision could not be made.

April 15, 2014 APPROVED. Wait for oath ceremony

Waited...

September 29, 2015 - sent letter to senator.

October 16, 2015 - US Citizen

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Filed: Country:
Timeline

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).

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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 :\

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Filed: Citizen (apr) Country: Canada
Timeline

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


USCIS
August 12, 2008 - petition sent
August 16, 2008 - NOA-1
February 10, 2009 - NOA-2
178 DAYS FROM NOA-1


NVC
February 13, 2009 - NVC case number assigned
March 12, 2009 - Case Complete
25 DAY TRIP THROUGH NVC


Medical
May 4, 2009


Interview
May, 26, 2009


POE - June 20, 2009 Toronto - Atlanta, GA

Removal of Conditions
Filed - April 14, 2011
Biometrics - June 2, 2011 (early)
Approval - November 9, 2011
209 DAY TRIP TO REMOVE CONDITIONS

Citizenship

April 29, 2013 - NOA1 for petition received

September 10, 2013 Interview - decision could not be made.

April 15, 2014 APPROVED. Wait for oath ceremony

Waited...

September 29, 2015 - sent letter to senator.

October 16, 2015 - US Citizen

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Filed: Country:
Timeline
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.

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Filed: Citizen (apr) Country: Canada
Timeline

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


USCIS
August 12, 2008 - petition sent
August 16, 2008 - NOA-1
February 10, 2009 - NOA-2
178 DAYS FROM NOA-1


NVC
February 13, 2009 - NVC case number assigned
March 12, 2009 - Case Complete
25 DAY TRIP THROUGH NVC


Medical
May 4, 2009


Interview
May, 26, 2009


POE - June 20, 2009 Toronto - Atlanta, GA

Removal of Conditions
Filed - April 14, 2011
Biometrics - June 2, 2011 (early)
Approval - November 9, 2011
209 DAY TRIP TO REMOVE CONDITIONS

Citizenship

April 29, 2013 - NOA1 for petition received

September 10, 2013 Interview - decision could not be made.

April 15, 2014 APPROVED. Wait for oath ceremony

Waited...

September 29, 2015 - sent letter to senator.

October 16, 2015 - US Citizen

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Filed: K-1 Visa Country: Wales
Timeline

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

All of which get very confusing.

OP, have a consultation with a lawyer.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Filed: K-1 Visa Country: Vietnam
Timeline

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.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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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 by coraliesolms

Invictus..

Out of the night that covers me,

Black as the Pit from pole to pole,

I thank whatever gods may be

For my unconquerable soul.

In the fell clutch of circumstance

I have not winced nor cried aloud.

Under the bludgeonings of chance

My head is bloody, but unbowed.

Beyond this place of wrath and tears

Looms but the Horror of the shade,

And yet the menace of the years

Finds, and shall find, me unafraid.

It matters not how strait the gate,

How charged with punishments the scroll.

I am the master of my fate:

I am the captain of my soul.

William Ernest Henley

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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!


03/09/2011 AOS Application Sent.
03/11/2011 (Day 0) Application Received
03/16/2011 (Day 7) NOA 1 (Text Email)+ (Checks Cashed)
03/19/2011 (Day 10) Hard Copy of NOA 1
03/28/2011 (Day 19) Biometrics letter 4/8/2011
04/08/2011 (Day 30) Successful Biometrics for I-765/I-485
05/13/2011 (Day 65) EAD received in the mail
05/14/2011 (Day 66) Email confirming EAD approved (Case updated online TOUCH)
05/20/2011 (Day 72) SSN In the Mail.

09/08/2011 (Day 200 ) Email notification of Interview.
10/11/2011 Interview at 26 Federal Plaza, NY!
Interviewed and Am expecting RFEs!
10/13/2011 (Day ***) Received RFE-- Requesting that I provide documentation to prove I was never married in Uk or Illin
02/11/2012 (Day ***) Service request..Told its being reviewed by supervisor

24th March 2012!!!!!!!!!!! Email notifiying me of CARD IN PRODUCTION
03/26/2012 (Day 376) Emails confirming that my I-130 and I-485 have been approved.

4/2/2012 Green Card In Hand!

Unbelievable that my journey took this long but Im thankful

Next Stop Premed...Yup!

3/24/2014 Application for conditions to be removed

9/22/2014 APPROVED without interview.

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Filed: K-1 Visa Country: Wales
Timeline

There is no 'proper' way.

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


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Filed: Country:
Timeline
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.

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Filed: Citizen (apr) Country: Greece
Timeline

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.


My CR1 timeline (DCF London):
June 26, 2010 - civil wedding
Aug 2, 2010 - I-130 package mailed to the London Consulate (DCF)
Aug 9, 2010 - NOA1 (confirmation of receipt) via email
Sep 4, 2010 - religious wedding
Oct 21, 2010 - NOA2
Nov 25, 2010 - Case number received in the mail
Nov 29, 2010 - Medical
Dec 1, 2010 - DS-230I & DS-2001 forms mailed back
Feb 1, 2011 - Interview - APPROVED!!!
Feb 7, 2011 - Passport with Visa received via courier
June 7, 2011 - POE Los Angeles (LAX)
June 18, 2011 - 2-Year Green card received in the mail!!!

My ROC journey:
April 2, 2013 - I-751 package mailed to California Service Center

April 3, 2013 - NOA1 date
April 8, 2013 - check cleared
May 6, 2013 - Biometrics completed

July 25, 2013 - 10 year green card APPROVED!! (notification via text and email, and website updated)

July 29, 2013 - ROC approval letter received in the mail

July 31, 2013 - 10 year green card received in the mail!!!

My N-400 journey:

March 19, 2014 - N-400 package mailed to Phoenix, AZ Lockbox

March 24, 2014 - NOA1 date and Priority Date

March 27, 2014 - Check cleared

April 21, 2014 - Biometrics done

May 7, 2014 - In line for interview

June 23, 2014 - Scheduled for interview

July 28, 2014 - Interview - PASSED!!

July 30, 2014 - In line for oath

July 31, 2014 - Scheduled for oath

Aug 2, 2014 - Oath letter received

Aug 27, 2014 - Oath ceremony, I am a US citizen!!!

Sep 11, 2014 - US passport received

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