IR-1/CR-1 Spouse Visa. About to submit. Gray area question.

[Aps1979 1]

So after much consideration about how to proceed, my wife and I got married last week in her home country of Australia where it is legal to marry as a tourist.

She is back in the USA with me now, using her 90 day visa wavier to spend the summer here. We are preparing to mail out our I-130 in the next couple of days. We have been doing some reading as well as talking to friends that have been through this as well as friends of others who work for immigration law firms, etc. We are trying to figure out the simple question of does she have to leave after the 90 days when her visa wavier expires or as my wife with a visa application submitted can she remain here with me during the process?

The USCIS website references if you spouse is in the US already by legal means. Yes, a visa wavier is a legal means and she was admitted for 90 days by customs in San Francisco. However a visa wavier is not a visa, just a travel pass given to most EU and Oceanic countries.

Also we have been legally advised that if she is in the US when I submit her visa, the US government can't deport her legally while it is being processed. But, just because they can't legally kick her out (if that is even true), it may still flag her passport as having overstayed a wavier, which could interfere later in the process.

So basically it comes down to a gray area. The simple factors are; my wife and I are legally married with all the documentation required. She is at this time legally with me in the USA. We are about to file for a visa for her. Is there any legal way that we do not have the spend the remainder of the processing time apart after her 90 day wavier expires? We have read that now that she is physically in the US and married to me we have a lot more legal leeway/loophole options to not be apart, but we just don't know and after all the other expenses can't really drop thousands more on a lawyer right now just to avoid a few more months of separation.

Any advice would be helpful, preferably experienced advice as we are both getting burned out on reading so much conflicting information lol. Thanks in advance.

A.

[Alaska2012 462]

She must go back when her 90 days are up. She can still come and visit again but she can't move here until visa is in hand.

She doesn't want to over stay the vwp, that can hurt her down the road.

[Aps1979 1]

She must go back when her 90 days are up. She can still come and visit again but she can't move here until visa is in hand.

She doesn't want to over stay the vwp, that can hurt her down the road.

Your timeline scares me a little. When I have talked to the visa office via phone they have made comments like, "Straight forward case from Australia shouldn't take more then 6 months, year at worst case scenario." Yet damn near everyone's timeline I have seen is a year or more. My spouse and I spent the majority of our relationship at long distance. We are really hating the fact we may be in for as much as another year of it after filing for a CR1.

[NikLR 13,227]

She can still visit but shouldn't do it more than 180 days per year. The initial petition shouldn't take more than 6 months but that depends on where your local office is and how quick they are. The next stage at the NVC also takes a few months from start to finish (but generally can be done in a month) and then she will have to wait for an interview which can also take a few months.

[Alaska2012 462]

Your timeline scares me a little. When I have talked to the visa office via phone they have made comments like, "Straight forward case from Australia shouldn't take more then 6 months, year at worst case scenario." Yet damn near everyone's timeline I have seen is a year or more. My spouse and I spent the majority of our relationship at long distance. We are really hating the fact we may be in for as much as another year of it after filing for a CR1.

6 months from start to finish is a dream, for some it happens for the rest of us no.

The waiting part sucks! Skype gets old and even though my husband flew over to Sweden as often as he could it was still never enough. BUT I have now been in the US for almost a year and you know what? It was well worth the wait!!!

A year seems long when you have it ahead of you but when its over you got the rest of your lives together!

[Darnell 8,478]

great question - it seems you done a modicum of research so far, but hey !

You need to decide if you two want to chase a visa or file for adjustment of status.

Both lead to a green card.

Go Get Em, and Good Luck !

[KP & SP 9]

great question - it seems you done a modicum of research so far, but hey !

You need to decide if you two want to chase a visa or file for adjustment of status.

Both lead to a green card.

Go Get Em, and Good Luck !

Best answer, in my opinion.

Edited June 14, 2013 by KP & SP

[NikLR 13,227]

It is a choice to make I agree but look into the factors if she is denied an adjustment of status because of entering on the VWP already married.

[christeen 966]

Staying and adjusting status from Vwp at this point is visa fraud. She entered as a tourist and there was no "spontaneous" marriage or whatever nonsense terminology they use to make legal what is clearly circumvention of the immigration system... But this "loophole" does exist and is utilized by people all the time. I am more against the existence of this loophole than in someone's desire to use them..

It is the precise reason that many loved ones are not permitted to visit on tourist visas...

But I digress....

However, that being said, yes, it IS possible to adjust status but remember there are risks with misrepresentation... Coming to the USA on a tourist visa with the intent to stay is not legal and therefore not an approved VJ recommended method. But it IS a grey area and there have been many many many who have successfully done this and there are many attorneys that even recommend this method... But it is a personal decision... I did. But if aos is in progress and there is an overstay, it will be forgiving when approved...

It is a choice to make I agree but look into the factors if she is denied an adjustment of status because of entering on the VWP already married.

There is NOTHING illegal about entering the USA on VWP while married... It is entering with the intention of immigrating that poses the problem...

[Darnell 8,478]

ya, apologies, i assume too much.

'needing to decide' has a predicated action of 'research'.

They've done a modicum, so far.

More needed, IMO, before they hit the decision area.

[NikLR 13,227]

Staying and adjusting status from Vwp at this point is visa fraud. She entered as a tourist and there was no "spontaneous" marriage or whatever nonsense terminology they use to make legal what is clearly circumvention of the immigration system... But this "loophole" does exist and is utilized by people all the time. I am more against the existence of this loophole than in someone's desire to use them..

It is the precise reason that many loved ones are not permitted to visit on tourist visas...

But I digress....

However, that being said, yes, it IS possible to adjust status but remember there are risks with misrepresentation... Coming to the USA on a tourist visa with the intent to stay is not legal and therefore not an approved VJ recommended method. But it IS a grey area and there have been many many many who have successfully done this and there are many attorneys that even recommend this method... But it is a personal decision... I did. But if aos is in progress and there is an overstay, it will be forgiving when approved...

There is NOTHING illegal about entering the USA on VWP while married... It is entering with the intention of immigrating that poses the problem...

Yes I understand all of that completely. Read my entire sentence... Adjusting status after entering on VWP already married - there is no spontaneous marriage and CBP wouldn't have allowed her entry if they felt she would stay and AOS - so if you do, you've misrepresented yourself and lied to the CBP.

SO IF the OP's wife decides to adjust status, which I do not recommend in any way, shape, or form, and she is denied because she is committing fraud by convincing a CBP officer she didn't intend on staying but then does stay, she will be banned from the USA indefinitely and not allowed to refile or appeal the decision.

I recommend the CR1 route fully. I know how hard it is to spend time apart. Most of us in this forum do. But it is what it is. My first anniversary came and went before I was approved. Now I'm here to stay. Legally without a single gray area, just a few more gray hairs.

Edited June 14, 2013 by NikiR

[NikLR 13,227]

I agree with Darnell... OP needs to read the wiki's and guides and do some research on the subject. That'll make what they should decide on that much easier.

[Aps1979 1]

I agree with Darnell... OP needs to read the wiki's and guides and do some research on the subject. That'll make what they should decide on that much easier.

OP here. I called the state department's visa line again today and talked to someone different then my first call. It was a very different experience as the person was a lot older sounding, identified herself as being an employee of the visa office for over 20 years, and even apologized for the, "communication difficulties" with my first call. Basically the offical position of the visa office if you cannot adjust status from a VWP, only from an actual visa, which does include tourist visas. My wife and I have known each other for 3+ years, together for a year (it took us a bit to take the leap into long distance), but only married a couple weeks. This is not spontaneous and there are mountains of evidence out there that we have an existing relationship if they looked, plus we were married in Australia not here.

End of the day, we are going to just stick out the wait and spend some more money on plane tickets. The person recommended I called CBP and ask their official position on status change from a VWP, which I am going to do. But if they express the same, "hell no, try it at your own risk and hope you don't trigger anything in the watchdog system", then we are just going to do the CR1 and keep visiting every few months until its over. As a previous poster said, it sucks but after its over we have the rest of our lives. The consequences if it goes badly far outweigh a few more months apart.

While we are both hopeless romantics, its not just about missing each other. We want to get a bigger apartment in the US, but my lease is up in March and the lease costs well over 10k to break mid term. I also realizing changing my address during the visa process can cause major paperwork setbacks. Same with upgrading my employer. It's like everything is on hold in every respect until we get this done.

That being said I'd like to keep this open to discussion if anyone has anything else to add. If anyone did get married overseas, enter with a VWP and change status successfully, I'd love to hear your account. But right now it looks way to risky for the possible time saved. Thank you all for your feedback.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=92f23e4d77d73210VgnVCM100000082ca60aRCRD&vgnextoid=92f23e4d77d73210VgnVCM100000082ca60aRCRD

Yeah and they pretty much spell it out here. lol

[NikLR 13,227]

CBP will tell you hell no. Heck, when I went for my NEXUS appointment, which is a card that enables a Canadian or American citizen to travel to and from Canada very easily, the CBP officer in charge of the NEXUS told me I wasn't even supposed to be visiting my husband in the USA. I told her that I tell the officer everytime that I'm visiting my husband and that we're doing paperwork for immigration. I also always have a return ticket and proof that I was returning to Canada. She said that was okay, because it is up to the individual officer but in general they don't like you to do that. She'd been with the CBP for 20 years and was a fingerprint specialist which is why she was doing the fingerprint portion of my card (it does a retina scan and fingerprints to ID you so you skip most of the customs lines.)

You can upgrade employers, just don't quit your job before you have the new employment set up. You can move, just have to notify the USCIS which you will have to do the entire time your wife has a green card anyhow.

** BTW I'm not talking about relationship evidence. I'm talking about the fact that they let your wife in the country to visit. Which means she told them she was visiting? When she came over and they asked her the purpose of her stay what did she say? What did she say when they asked about how long she would be?

If you guys had been dating, then you spontaneously popped the question while she was in the USA and had been dating and decide to get married ASAP, you could file for adjustment of status. It's spontaneous. She didn't come here with the intent to stay. But as a married couple, they automatically assume you want to move here. You have to prove that you're not. Either from a few simple questions or a more in depth procedure.

Just take things given to you by the US government with a grain of salt. Talk to 5 different people and you often will get 5 different answers.

[*Snowdrop* 604]

Actually I believe the issue is intent.

It's not fraud to come to the US on a visa waiver with no intent to stay and then change your mind later. Married or not married.

But of course being married makes your argument that you had no intent to stay look a lot weaker. However people have successfully AOS'd under similar circumstances.

Only the OP knows for sure what his wife's intent was.

Edited June 15, 2013 by *Lynne*