Adjusting status on a tourist visa

[Boiler 43,702]

I went the K1 route but was told by an Immigration Lawyer to come in on the VWP, marry and adjust. Same for the B2 btw.

If I was doing it again knowing what I know now I should have taken his advice.

Most of the people I have met in real life seem to have done it this way.

Problems, well I am a worrier so I would have had issues with that, practically the only time I have seen it as an issue is when it has been made too obvious to ignore. The one I remember from years back was he came to NY, they married and went on a cruise, came back and filed the following day.

But that was many years ago.

[Nich-Nick 3,353]

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"?

The point is they don't check and they don't ask what your intentions were. They get the paperwork and process it. If its a proven marriage and not a fake one for a greencard, it should go straight through like anybody else adjusting status from a K1 or work visa, for example. If there was really something that went wrong in the process, like they couldn't come up with a sponsor Or didn't reply to an RFE, then AOS could be denied. So if denied, then however long they overstayed would be on their record. Also with VWP, there is no appeal if denied ...you leave the country. Don't know about tourist visas.

Edited August 28, 2012 by Nich-Nick

[nica 5]

The point is they don't check and they don't ask what your intentions were. They get the paperwork and process it. If its a proven marriage and not a fake one for a greencard, it should go straight through like anybody else adjusting status from a K1 or work visa, for example. If there was really something that went wrong in the process, like they couldn't come up with a sponsor Or didn't reply to an RFE, then AOS could be denied. So if denied, then however long they overstayed would be on their record. Also with VWP, there is no appeal if denied ...you leave the country. Don't know about tourist visas.

I understand that the paperwork part goes through like anything else... but they don't ask any questions at the interview? Husband and wife living together in the U.S., one on a tourist visa, entered the U.S. right after marriage... I get that a lot of people manage to get through it okay, but isn't there a chance that the consulate officer would ask about all that?

I still don't get how there's so much disagreement over whether this process is legal or whether it's advisable. I was advised by people on this forum (and others like it) that adjusting status from VWP could get you in serious trouble. That's why I went with I-130. Is that just wrong information? Is there NO risk of being caught?

[Ryan H 3,796]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas; discussion is about the AOS process from a tourist visa.

[JoannaV 173]

The system is stupid and needs changing.

However given that it is the way it is, personally I could only ever do it the "proper" way.

However I don't want to scare people away with biased advice, so I try to balance my comments by telling people what they can do. And I honestly do want the best for everyone so I'm more than happy for someone who happens to be in the US with no knowledge of the process and then adjusts status. In your friend's (acquaintance?) case, her husband has already uprooted himself from Mexico and is currently in the US. He may as well adjust status. There really isn't a risk of being denied, not really. The only person I'm actually a little annoyed at is someone vaguely related to me who bugged me for immigration advice and then did the VWP/AOS thing despite having plenty of time to have done it correctly...

A little while ago there was a potential problem with adjusting status from VWP. Or maybe it was just VWP with overstay. I can't remember. But there were delays and maybe even denials, can't remember. But that has since been resolved so there is no longer that concern.

[Xanax 349]

Just a note- stop calling it the "i-130" that is just 1 form and you file it when you adjust status in the country, using a k-3 and I am sure with other visas too. You don't want to confuse people.

In regards to the adjusting on a tourist visa/ vwp etc. It all comes down to intent, if you can be proved to have had intent to immigrate when you entered the country. That being said, CBP is trained to not let people in who have the intention to stay SO generally those who are in the country were said to not have intent to immigrate. Make sense?

Uscis, I believe does not try too hard to prove intent to stay - the visitor was proven without intent when they entered supposedly.

Some would say there are pros and cons from adjusting from a vwp or tourist visa.

Some would say it's also a moral issue and people are jumping the queue and it isn't fair.

Many people come to the US using the CR-1, K-1 and many people adjust from vwp or tourist visa with and without previous intent.

It's all about what you're prepared to do, give up, risk and I guess your morals too.

[lynndy38 64]

Im doing the I-130 and like JoannaV I couldnt have done it any other way.

Sadly it seems we're the people likely to get stopped and grilled and denied entry if we try to legitimately visit our husbands whilst the visa is in process because theyre worried we will AOS once in the US.I wish they did some kind of disclaimer you could sign saying you'd leave the country and not file for AOS and finish the process properly and legally if it meant you could visit without fear of being denied.

This whole process seems a lottery,and I guess it also depends on personal situations too.

[Harpa Timsah 13,258]

it is illegal to enter the US on a non-immigrant visa with the intent to immigrate. People are asked about their intent at interview sometimes, so yes, it can come up. Intent by itself is not enough to deny an AOS application, but combined with other factors, it can be. What makes this plan worse, is if the plan at POE starts to go awry, causing the immigrant to lie to gain entry. Misrepresentation at POE can make you inadmissible for life.

If you tell the CBP that you plan to immigrate, they will deny your entry. I am quite surprised the person above was allowed in. Often people are denied entry for presumption of the above.

It's not a question of morals or sneakiness or a gray area; it's simply not the proper procedure. USCIS does understand that once here, it is overly bureaucratic to force someone to go home just to interview, which is why this exists.

Lynddy, we've told you you can visit, and you still are paranoid and complaining about how you imagine being grilled, yet it hasn't happened yet!

[Moomin 292]

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

USCIS has access to any document your husband signed when they check immigration status. It gets a bit more tricky if CBP officer decided to stamp "NO AOS" in passport. Not because it's illegal to AOS with that stamp, or that AOS will be denied for sure. But because it may attract USCIS' attention to the intent when entering the country. That intent is usually not even mentioned at the interview though. Since your husband was let into the country, he must've convinced the officer that he wasn't trying to immigrate, otherwise he would've been refused entry, or had his tourist visa cancelled on the spot. I agree with Harpa that your husband was lucky he was even admitted to the US.

Illegal immigrants enter without being inspected. They cannot adjust their status because there's nothing to adjust from. Your husband is adjusting from a tourist visa, and after his legal stay is up, he is in the US unlawfully but not illegally.

Edited August 29, 2012 by moomin

[lynndy38 64]

Im sorry Harpa.....

Ive had two awful experiences with a nasty officer,yes its affected me so I am 'paranoid'

Thanks for making me feel even worse.

[Boiler 43,702]

Life is full of risks, we all choose which ones we accept and which ones we do not.

[Moomin 292]

Im doing the I-130 and like JoannaV I couldnt have done it any other way.

Sadly it seems we're the people likely to get stopped and grilled and denied entry if we try to legitimately visit our husbands whilst the visa is in process because theyre worried we will AOS once in the US.I wish they did some kind of disclaimer you could sign saying you'd leave the country and not file for AOS and finish the process properly and legally if it meant you could visit without fear of being denied.

This whole process seems a lottery,and I guess it also depends on personal situations too.

There is a sworn statement you can sign however it won't stop people from being in the country for 10 or 20 years after they enter, even if it means staying unlawfully and working illegally/no driver's license etc. There are so many examples of that, and of people misusing tourist visas which might be one reason why CBP officers' screening may seem a bit harsh.

I am all for people not trying to adjust from tourist visas unless it was an emergency along the lines of how to get a petition expedited - that some criterias had to be established in order to AOS from nonimmigrant visas.

However, you do get stopped and grilled when being the spouse of a US citizen(sometimes), mostly because it is a strong tie to the US rather than to your home country.

We're not trying to make you feel bad. Most of all, people come on VJ to prepare or educate themselves on the process, others for support. Some users only state the fact without smileys. I'm also one of them and it's not to make the words seem harsh, it's only to make the message shine through with the raw facts.

Edited August 29, 2012 by moomin

[Xanax 349]

Im sorry Harpa.....

Ive had two awful experiences with a nasty officer,yes its affected me so I am 'paranoid'

Thanks for making me feel even worse.

Be confident in your decisions and try not to let CBP get to you.

Use the people on this board as a test run. If something they says gets to you, think about it, take a breath and reply like it has not phased you in the slightest Fake it till you make it

[Julie y Pat 67]

"intent" is a state of mind, not an action, so how could one prove conclusively what "intent" was? USCIS also collects a sizable fee for AOS, as opposed to a much smaller fee for the I-130 petition for someone going the IR/CR route, so I don't think they really have incentive to make AOSing too difficult.

[JP and Tee 13]

isnt that considered immigration fraud, as the tourist visa is purely for visiting purposes not for staying beyond the 6 months mark (or however long the person gets)?

I read it can go both ways, either they AOS successfully or the non-citizen spouse gets booted out and barred from entry into the US for a certain amount of time, a risk which i definitely would not want to take.