AOS while here on VWP (UK)

[IzBizMommy 0]

Hello all,

Sorry if I am writing this in the wrong place-or if this question has already been answered. Here is the situation.

My boyfriend is here visiting me on the VWP from the UK. He has a flight to return back to the UK before his 90 days are up. If we were to get married before the 90 days... can he apply for AOS and stay? If so... what steps do we have to take? Thank you so much in advance!

[Little_My 463]

Do a search here on VJ on AOS from VWP - you will find several threads and conversations dealing specifically with that topic.

The simple answer is yes - he can adjust status from AOS. It would be best to do as ASAP, since whether or not he overstays his VWP is dependent on when USCIS receives your AOS application, not when it is mailed out or when you two got married. Accumulating all the necessary paperwork can take some time, so I would get to it now. Start by reading the guide for concurrent filing of I-130 and I-485 here on VJ, and download those forms and the instructions for them, and read them carefully.

Keep in mind, that even though currently the situation for people applying for AOS from a VWP overstay is looking more positive, if he overstays and your application is for some reason denied, he does not have the right to appeal the decision.

When does his 90 days run out?

[IzBizMommy 0]

Thank you so much for the info. His return flight is for June 13th. What is the average time it takes for them to recieve the AOS? What if his 90 days ran out before they recieved the AOS, would he be able to go back to the UK even though we sent in an AOS?

[Myopia 93]

There used to be a problem with Visa Waiver Overstay adjustments but not anymore.

Recently USCIS made it clear that Visa Waiver Adjustments (whether within the 90 days or without) are going to be adjudicated as normal. As long as there is nothing shady about your application (Another spouse in a home country, ICE was about to knock the door, entering the US with an intent to be married and adjust status etc) then your application should be straightforward.

Some people may ask you how it is that you and your fiancee have spontaneously decided to marry and adjust whilst he is here but really it is none of their business.

As long as he came here, as you said, then you can marry and file. It is a very simple process as long as you have a head for detail and make sure your application is beautifully put together.

There are some guides at the top of this page. Click on the ones that are relevant for I-130/I-485/I-864/I-693/I-765 and if you file before the 90 days are up I-131. Read all the instructions and read them again. Then start to build your application.

Use VJ as a good reference point and you should be fine.

Again there is NO issue with VWP overstay but if he does overstay then you will not be able to leave until his application was adjudicated. Could be at least 6 months.

ON EDIT. Intent is going to be a problem for you if you marry. He just came a few days ago.

You can get married now(if that is what you planned) and then file the CR1 visa. He can stay here until his 90 days are up and return to his VWP country. He can even travel back and forth to see you in the interim which if he reallt wants to travel would be better probably.

Edited April 19, 2011 by Myopia

[Ironman140 45]

I to thought about going the ASO route but you may be better off going with the K1 .. Read up and think long and hard about it ..it's hard being apart but with the VWP he can return back after short stay.in the UK. .. JMO from a newbie here

[xxxwabbiexxx 70]

Is your fiance in America on a VWP only no proper visa??? I'm under the impression that yes you can do what you're suggesting but its a fairly sly and cheating way to go about it and you could well face problems later on when it come to ASO and naturalization. I think you would need to prove that it was a spur of the moment thing and that it wasn't your intention to get married, you know the whole 'getting drunk in vagas thing' but if they want to dig and they found out what you were planning all along you could face trouble.

I went to visit my fiance on the VWP for just under 90days, came back to the UK for a month then went back again for just under 90 days and at the beginning of those 90 days we sent the I-129F off, I'm back in the UK now waiting patiently for the process to be completed.

I strongly advise you not to do what you're planning, and file a K1 Fiance visa. It may take a while and it will be frustrating but its the correct, moral and legal way to go about things.

[xxxwabbiexxx 70]

Just to add on, I'll be honest it did flow through our minds to get married on the VWP but I'm a huge believer in Karma, and if we'd done it that way Karma would have hit us in the face big time somewhere down the line.

[IzBizMommy 0]

We had no intent on marrying but he started looking on VJ just to see what kind of options he had... and came across a post like this, saying that it was possible to do. I didn't believe him, which is why I posted myself. He has a return flight and has to work in Paris as soon as he goes back... wouldn't that be enough proof? What would be the downside of just AOS after marrying? Also... I was under the impression that if someone came over on the VWP for 90 days they had to stay out of the country for 90 days before they could come back....

[Myopia 93]

We had no intent on marrying but he started looking on VJ just to see what kind of options he had... and came across a post like this, saying that it was possible to do. I didn't believe him, which is why I posted myself. He has a return flight and has to work in Paris as soon as he goes back... wouldn't that be enough proof? What would be the downside of just AOS after marrying? Also... I was under the impression that if someone came over on the VWP for 90 days they had to stay out of the country for 90 days before they could come back....

It may be better to go the CR1 route if his work is important to him. Entrance on the VWP is always on the discretion of the Immigration officer that he gets at the port of entry, but if he has paperwork to show that he has filed the CR1 then they may be ok. They may deny him but at least he will be able to tie up his loose ends in the UK and then come to you with the instant ability to work.

Any other way, he will be dependent on you until he has the ability to work.

I think if someone marries on day 2 on entrance to the US on a VWP, it looks iffy but I have read that it doesnt matter so what do I know!

[Little_My 463]

If he has to be outside of the US soon for this job in Paris, then AOS from VWP is not a good idea for you. First of all, if the AOS application was not received by USCIS before his VWP stay runs out, it would be very risky for him to leave the US before he had the actual GC in hand, which would be on average somewhere between 4 to 6 months from submitting the application.

Second of all, even if the AOS application was received by USCIS in time, before his VWP runs out, he cannot travel until he has an AP - a travel docuemnt that allows him to leave the US and return while his AOS is pending. Getting this takes 60-90 days from when the AOS application is received by USCIS.

So, let's say you get married, get all the paperwork together fast, and submitted your application early May. Let's say it was received by USCIS by mid-may. He wouldn't have the AP until somewhere in July. If he is supposed to be in Paris for work in June, that would not be possible.

Also, as pointed out by Myopia, coming here as VWP and marrying very fast after arrival as you would be doing is risky. And, as mentioned before, if your application was denied, you would have no right to appeal the decision. He waived that right when he entered as VWP.

I would say either forget about the marriage plans for now, go through the K1 visa route - or, get married in the US, he leaves before his 90 days are up, and go for the CR1 route.

[IzBizMommy 0]

I didn't realize that AOS on the VWP was allowed... why do they allow this, and why doesn't everyone do it, if it is that easy? The only downside is not being able to work, right?

[Ironman140 45]

I didn't realize that AOS on the VWP was allowed... why do they allow this, and why doesn't everyone do it, if it is that easy? The only downside is not being able to work, right?

I think the bigger risk is getting denied. Then risking a much tougher journey . For the sake of taking easier route

[IzBizMommy 0]

I think the bigger risk is getting denied. Then risking a much tougher journey . For the sake of taking easier route

Sorry for asking so many questions... but what happens if he would get denied?

Sorry Mrs Finald just answered that question

Edited April 19, 2011 by IzBizMommy

[Myopia 93]

I didn't realize that AOS on the VWP was allowed... why do they allow this, and why doesn't everyone do it, if it is that easy? The only downside is not being able to work, right?

They allow it because the US government generally want families to stay together. If, for whatever reason, someone ends up in the US and finds it impossible to a) leave the US in order to file or b) leave their new spouse then AOS from the VISA Waiver is an opinion. The reason that everyone doesnt do it is because it is not the preferred route. It is an alternative for those who have no other recourse but it should not be the first option. Everyone who files on the VWP knows that if their application is denied then there is no way around the fact that they would have to leave. No option to appeal a decision. You have one shot and thats it.

That is a huge risk and one to be avoided if possible.

So the downsides is you cant work, you cant drive, you cant leave teh country, if you are denied you have to leave and face a 3 year ban that would need to be overcome before any new entry to the US. There are a lot of downsides.

If he is denied then he has to leave.

[Little_My 463]

Entering ubnder the VWP with the intention to get married AND apply for AOS is fraud. The visa waiver program is meant for visitors, who have no plans to stay in the US for longer periods of time and / or try to immigrate permanently.

However, in occasion, a person enters as a VWP. Maybe that person meets a US citizen and falls in love, and ends up getting married. Maybe that person already had someone here who they knew or were dating with, and that couple ends up getting married. Things happen, and not always according to original plans. In those situations, the foreigner who entered as VWP is allowed to adjust status due to marriage to a USC.

Is this possibility misused? All the time, I'm sure. And there are some risks associated with the VWP that are not relevant with adjusting from actual visas, such as the no right to appeal -rule. As Myopia pointed out earlier, before very recently VWP overstays were facing a big risk of beign denied (because of the overstay), but that has recently changed. I am not a VWP entree myself (i was three years ago, but didn't even think about AOS and GC back then), so I do not know all the details related to this, but there is a thread in this forum specifically about VWP overstays who attempt AOS and the recent developments related to this.

And about the work part, that is the same no matter what you AOS from. You have to wait for the EAD (temporary work permit) to be able to take a paid position. It comes together with the travel document.

Edited April 19, 2011 by Mrs.Finland-USA