Guide on how to adjust status on VWP?

[Kevinbolts 0]

My fiancee and I have already sent in the first papers for the K-1 visa. While we are waiting to hear back from the papers, she is here visiting for 90 days on the visa waiver program. We don't want to be apart and for her to go back to Italy and do the rest of the paperwork for the K-1 visa because it takes several months. We would like to get married and adjust status here so she can stay and to avoid being apart. Can someone give us some advice on how to do so or an online guide on how to do it? I can't find anything very clear online about this. She has been here for about 45 days, is it too late to try to adjust and have her stay without going back?

[Alaska2012 462]

First you would have to marry her! Then start the process the very next day. It's not too late she still has another 45 days before she has to go back but you gotta get going.

Also you might have to prove that this was something you decided once she came over and not had it planned all along, it might look a little dodgy since you already started the K1 process...

Edited January 14, 2013 by Alaska2012

[N-o-l-a 7,167]

Like Alaska said, the problem is that you've already filed the K1, which kinda shows intent to immigrate on the VWP. If I were you, I wouldn't risk AOS in this particular case.

Edited January 14, 2013 by Nola123

[Cathi 5,617]

Having already filed a K-1 you have shown immigrant intent. Personally I wouldn't want to take the chance of being denied.

[ValerieA 350]

My husband and I had started the CR-1 process, and I ended up adjusting from a B-2 when I came for a visit. I had no issues at all. The guide is here. If you do not send the package in before her VWP expires, don't worry too much about it, overstay is forgiven for the spouse of a US citizen.

[inqztve 42]

My husband and I had started the CR-1 process, and I ended up adjusting from a B-2 when I came for a visit. I had no issues at all. The guide is here. If you do not send the package in before her VWP expires, don't worry too much about it, overstay is forgiven for the spouse of a US citizen.

There is a risk associated with this. Sometimes USCIS looks the other way but there is still risk in this.

[inqztve 42]

My husband and I had started the CR-1 process, and I ended up adjusting from a B-2 when I came for a visit. I had no issues at all. The guide is here. If you do not send the package in before her VWP expires, don't worry too much about it, overstay is forgiven for the spouse of a US citizen.

Overstaying under VWP is extremely risky.

Please checkout this posting.

..."At first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255©(4), and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer examination, however, we believe that they can be reconciled. During the time when a nonimmigrant visitor is within the VWP’s 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays their 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed. See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006). Bayo filed his application for adjustment of status long after his 90 days were up. As a result, his adjustment-of-status application is barred by his valid VWP waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place."

Edited January 15, 2013 by inqztve

[Hypnos 6,576]

The only real risk with adjusting from VWP is that, if denied, there is no appeal (because you sign away your rights of appeal as part of the conditions of being able to use the VWP in the first place).

For the overwhelming majority of people who are able to prove a legitimate marital relationship then this isn't an issue, but it is something to consider.

That being said, thousands of people successfully adjust from VWP to LPR every year.

Edited January 15, 2013 by Hypnos

[inqztve 42]

The only real risk with adjusting from VWP is that, if denied, there is no appeal (because you sign away your rights of appeal as part of the conditions of being able to use the VWP in the first place).

Agreed. I just personally consider it "extremely" risky. .

For the overwhelming majority of people who are able to prove a legitimate marital relationship then this isn't an issue, but it is something to consider.

That being said, thousands of people successfully adjust from VWP to LPR every year.

[ValerieA 350]

Overstaying under VWP is extremely risky.

Please checkout this posting.

..."At first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255©(4), and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer examination, however, we believe that they can be reconciled. During the time when a nonimmigrant visitor is within the VWP's 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays their 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed. See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006). Bayo filed his application for adjustment of status long after his 90 days were up. As a result, his adjustment-of-status application is barred by his valid VWP waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place."

Sigh. This is OLD OLD OLD. There was a time, about 2 years ago, that people adjusting from VWP after an overstay were having issues, but the rule was clarified and they are afforded the same opportunity to adjust, based on marriage to a US citizen, as someone who came in on, say, a B-2 visa. Please look for more current information.

Also, while you may think it is 'extremely' risky, it is actually not. Intent can not be used as a reason to deny, there would have to be other significant negative factors. Since the OP has not mentioned any, I am going to run with the assumption that they don't exist until shown otherwise.

My lawyer also felt that having started with a CR-1 tended to prove I had no immigrant intent, since why spend all that extra money starting out with it if you weren't actually planning on using it?

ETA: OP, note that, as someone else has already pointed out, if you are denied, you have no chance to appeal because you are on the VWP. So, you would have to go home and pursue the CR-1 at that point, if you were denied.

Edited January 15, 2013 by ValerieA

[Harpa Timsah 13,258]

Inqtzve, the issue address in that post is very old. Valerie explained. You are spreading misinformation all over this forum. Please stop.

[Noah Lot 387]

My fiancee and I have already sent in the first papers for the K-1 visa. While we are waiting to hear back from the papers, she is here visiting for 90 days on the visa waiver program. We don't want to be apart and for her to go back to Italy and do the rest of the paperwork for the K-1 visa because it takes several months. We would like to get married and adjust status here so she can stay and to avoid being apart. Can someone give us some advice on how to do so or an online guide on how to do it? I can't find anything very clear online about this. She has been here for about 45 days, is it too late to try to adjust and have her stay without going back?

Go to Borders and buy a copy of .."Mind Changing for VWP Travelers"....

[inqztve 42]

Sigh. This is OLD OLD OLD. There was a time, about 2 years ago, that people adjusting from VWP after an overstay were having issues, but the rule was clarified and they are afforded the same opportunity to adjust, based on marriage to a US citizen, as someone who came in on, say, a B-2 visa. Please look for more current information.

Also, while you may think it is 'extremely' risky, it is actually not. Intent can not be used as a reason to deny, there would have to be other significant negative factors. Since the OP has not mentioned any, I am going to run with the assumption that they don't exist until shown otherwise.

My lawyer also felt that having started with a CR-1 tended to prove I had no immigrant intent, since why spend all that extra money starting out with it if you weren't actually planning on using it?

ETA: OP, note that, as someone else has already pointed out, if you are denied, you have no chance to appeal because you are on the VWP. So, you would have to go home and pursue the CR-1 at that point, if you were denied.

Ok. I stand corrected. Thank u for the clarification.

[ValerieA 350]

Ok. I stand corrected. Thank u for the clarification.

No worries. We see someone post that here from time to time, and we all have to jump in to make sure the OP does not act on outdated information. Sorry to be a little snappish, but there is a lot of misinformation about the AOS process out there, and we spend a lot of time correcting the same posts. Maybe I should have had coffee today.