Adjusting status on a tourist visa

[nica 5]

Hey there,

I know someone looking into the whole I-130 process. Her husband is from Mexico and has had a tourist visa for a while (they last 10 years). I remember when I started this process lots of people telling me that entering the US on VWP and then adjusting status to permanent resident can potentially lead to trouble... (in fact, I was told it was considered immigration fraud), but is the same true with entering the US on a tourist visa and then trying to adjust status to permanent resident? If legal, how long does that process normally take?

Thanks all!

[natalieblake 0]

Hi Nica,

My husband came in on a tourist visa and although his visa is valid for three years (ESTA from UK), we were told that he is only able to use it in 3 month increments. I am not sure if it is the same for Mexico. We were not really sure of the situation coming in but we filed our paperwork (I-485, I-130, I-131(travel), and I-765 (work)) together on June 29, 2012 and have the interview for adjustment of status on September 26, 2012. On the USCIS website, they put the interview against the I-485 but I am assuming that the I-130 will get approved shortly after if the I-485 gets approved (could be massively wrong). Other than that, the I-130 hasn't changed status since they received the paperwork on July 2, 2012.

I hope this helps some!

Thank you,

Natalie

[Que Saudade 284]

Good luck...... Tons of opinions will come in..

Edited August 28, 2012 by Que Saudade

[nica 5]

If that's the case, then I don't understand why anybody goes through the much longer I-130 process that often forces the couple to live apart. My husband and I did I-130 (the entire process took 11-12 months) because we were told that entering the U.S. on a nonimmigrant visa (or VWP) with the intent to stay constitutes immigration fraud, and that there's a possibility that, come the interview, the consular officer will have some serious questions about whether you are really "just visiting" or whether you entered illegally.

So why couldn't my husband get a tourist visa and then adjust status? Doesn't there have to be a downside or risk to that option, given how many choose to do the I-130 route instead?

Hi Nica,

My husband came in on a tourist visa and although his visa is valid for three years (ESTA from UK), we were told that he is only able to use it in 3 month increments. I am not sure if it is the same for Mexico. We were not really sure of the situation coming in but we filed our paperwork (I-485, I-130, I-131(travel), and I-765 (work)) together on June 29, 2012 and have the interview for adjustment of status on September 26, 2012. On the USCIS website, they put the interview against the I-485 but I am assuming that the I-130 will get approved shortly after if the I-485 gets approved (could be massively wrong). Other than that, the I-130 hasn't changed status since they received the paperwork on July 2, 2012.

I hope this helps some!

Thank you,

Natalie

[Que Saudade 284]

Hi Nica,

My husband came in on a tourist visa and although his visa is valid for three years (ESTA from UK), we were told that he is only able to use it in 3 month increments. I am not sure if it is the same for Mexico. We were not really sure of the situation coming in but we filed our paperwork (I-485, I-130, I-131(travel), and I-765 (work)) together on June 29, 2012 and have the interview for adjustment of status on September 26, 2012. On the USCIS website, they put the interview against the I-485 but I am assuming that the I-130 will get approved shortly after if the I-485 gets approved (could be massively wrong). Other than that, the I-130 hasn't changed status since they received the paperwork on July 2, 2012.

I hope this helps some!

Thank you,

Natalie

So what is the plan at the end of 3 months if no approval from USCIS?

[nica 5]

Since he is outside of the country, she should file CR1 for him to enter legally.

He can't enter on VWP with intention to adjust status after entering.

He's inside the country already (on a tourist visa), but he entered a few months ago, right after they got married in Mexico (he quit his job, sold his house, and moved all his belongings to the US). I felt pretty sure that was considered illegal using VWP, but is it also risky with a tourist visa?

[Nich-Nick 3,353]

Hey there,

I know someone looking into the whole I-130 process. Her husband is from Mexico and has had a tourist visa for a while (they last 10 years). I remember when I started this process lots of people telling me that entering the US on VWP and then adjusting status to permanent resident can potentially lead to trouble... (in fact, I was told it was considered immigration fraud), but is the same true with entering the US on a tourist visa and then trying to adjust status to permanent resident? If legal, how long does that process normally take?

Thanks all!

VWP or tourist visa is all the same. You are not supposed to enter as a tourist with the full, pre-meditated intention of by-passing immigration processes. However people do it all the time with success and are never questioned on their intentions. There is a forum where you could check timelines of those kind of filings http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

[nica 5]

VWP or tourist visa is all the same. You are not supposed to enter as a tourist with the full, pre-meditated intention of by-passing immigration processes. However people do it all the time with success and are never questioned on their intentions. There is a forum where you could check timelines of those kind of filings http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

So ultimately it's a question of how risky you want to be with the process? You might get away with adjusting status based on the luck of the draw with a consular officer, but to be totally sure, you'd want to return home and file I-130?

[Que Saudade 284]

He's inside the country already (on a tourist visa), but he entered a few months ago, right after they got married in Mexico (he quit his job, sold his house, and moved all his belongings to the US). I felt pretty sure that was considered illegal using VWP, but is it also risky with a tourist visa?

What did the CBP officer ask him? DId he have to sign any forms? All these things can come into play later.

This always becomes a hot topic. If he entered legally, did not lie to any of the CBP officers questions, he can adjust status. Like Nich-Nick stated, it gets really twisted in this area.

I personally do not understand how an alien, who is married to a US citizen, comes to "visit" on a Visa/VWP/ESTA (bringing all of their personal belongings and knowing they are going to stay) gets to adjust status. But it happens.

If only I had known then what I know now.

What I see here on VJ now is the perpetuation of how to not file K1 or CR1 and get your loved one here ASAP. But, it won't matter at all until laws are changed to "you can't adjust status from Tourist Visa or VWP/ESTA. Until then, congratulations everyone.

[natalieblake 0]

If that's the case, then I don't understand why anybody goes through the much longer I-130 process that often forces the couple to live apart. My husband and I did I-130 (the entire process took 11-12 months) because we were told that entering the U.S. on a nonimmigrant visa (or VWP) with the intent to stay constitutes immigration fraud, and that there's a possibility that, come the interview, the consular officer will have some serious questions about whether you are really "just visiting" or whether you entered illegally.

So why couldn't my husband get a tourist visa and then adjust status? Doesn't there have to be a downside or risk to that option, given how many choose to do the I-130 route instead?

We didn't realize what we were doing was illegal and had we known, we would probably have done differently. When he was going through immigration at DIA, they asked him how long he was intending to stay and he told them that he planned on settling in and finding a job and got sent straight to the naughty room! They even hand wrote on his passport that if he did not leave by the specified date (3 months from arrival), then he would not be allowed back in. After we got married and sent in the visa documents, we set up an interview with info pass and they told us that it would be okay. They read the note from TSA and said that people do it all the time. I think we were lucky but I have read that people who are even here illegally (stay past their visa date) go through fine. I am not saying that this is right but I do think if your friend married her husband and he's here, they should try the whole thing like we did (I485, I130, I765) and not do it one at a time as that seems riskier if he's already here! Just my thought

[JoannaV 173]

It is fraud to enter on a non-immigrant visa with the plan of immigrating. However if you are in the US on a non-immigrant visa and decide to adjust status that is fine.

Generally there is no problem with adjusting status whilst in the US on a tourist visa. The only problem is your conscience if you know you planned to immigrate when you entered.

[nica 5]

It is fraud to enter on a non-immigrant visa with the plan of immigrating. However if you are in the US on a non-immigrant visa and decide to adjust status that is fine.

Generally there is no problem with adjusting status whilst in the US on a tourist visa. The only problem is your conscience if you know you planned to immigrate when you entered.

Isn't it pretty obvious that you planned to immigrate if, before you entered, you quit your job, sold your house, moved your belongings here, etc? Aren't there material ways they can check on "intent to immigrate"?

For example, when my husband and I were going through I-130, we were advised that he should bring "evidence of ties to his home country" when he came to visit for a week at Christmas, so that at POE they don't assume he's trying to move here on VWP. So he brought evidence of his place of residence, a letter from his employer saying he's an ongoing employee, etc. Couldn't they ask for that stuff at an AOS interview? Or do they not care enough to bother?

Edited August 28, 2012 by nica

[Que Saudade 284]

It is fraud to enter on a non-immigrant visa with the plan of immigrating. However if you are in the US on a non-immigrant visa and decide to adjust status that is fine.

OK, if you are married to a US citizen and come to "visit" your spouse, then decide to adjust status??????

Seriously, this is a joke. Even more of a joke that USCIS told NatalieBlake that even though CBP warned her husband that he better leave after 90 days, that "It was OK and People do it all the time".

These people will have their green cards before people who have filed for K1/CR1......

[nica 5]

OK, if you are married to a US citizen and come to "visit" your spouse, then decide to adjust status??????

Seriously, this is a joke. Even more of a joke that USCIS told NatalieBlake that even though CBP warned her husband that he better leave after 90 days, that "It was OK and People do it all the time".

These people will have their green cards before people who have filed for K1/CR1......

The thing that makes me feel slightly better is that even if I had known all this information, I don't think I would have done it differently. I-130 seems safer; the last thing I would want for my husband is to have some kind of blot on his immigration record (even something like an interrogation at POE and a note in his passport). We wanted to do it right, and it was painful, but we made it.

A USCIS officer told my friend that what she was doing was legal too... but one thing I learned from the I-130 process is that above all else, I don't trust anything USCIS tells anybody.

[Que Saudade 284]

The thing that makes me feel slightly better is that even if I had known all this information, I don't think I would have done it differently. I-130 seems safer; the last thing I would want for my husband is to have some kind of blot on his immigration record (even something like an interrogation at POE and a note in his passport). We wanted to do it right, and it was painful, but we made it.

A USCIS officer told my friend that what she was doing was legal too... but one thing I learned from the I-130 process is that above all else, I don't trust anything USCIS tells anybody.

Well, one thing I learned for sure, USCIS and CBP do not communicate with one another, nor do they speak for the other. USCIS can say, "yeah safe to travel" and CBP stop you at the border and say "Do Not Enter" Go figure as what to think or believe anymore.