How to enter USA

[mythicus 0]

Hi All,

First post, so please bear with me. I hope you can help.

I am married to a US citizen, we have a daughter together. We have been married for 5 years.

We have decided to move to the US, having been in the UK up till now. My wife went to the US with my daughter in January, and I am to follow.

We were going to go down the Consulate route, but whilst we were together in the USA last time (May) we learnt that spouses can come to the US and file the I-130 and the I-485 from within the states. As such i returned to the UK to finalise things here before making the move... however...

I am now concerned that while it is possible to file for Adjustment of Status whilst in the US, it is all dependent upon how you enter. I have searched this forum, others and spoken to the USCIS about how I enter with the intent to stay (which is what it will be). The answer is mixed, but I am am concerned now that the answer isnt simple.

Being a UK citizen, I believe the only way I can enter is on a VWP. However if I do that then I believe I cannot file the I-130 and I-485 because the VWP states I must leave the country. However USCIS state that I can do this. I am sooo confused....

Can anyone offer any advice here please?

Many thanks

Michael.

[Harpa Timsah 13,260]

It is illegal to enter the US on a non-immigrant visa (or visa waiver) with the intent to immigrate.

[Ozz777 23]

Can you share a link from uscis that states it is legal to do what you first planned to do? Everything I have read states that you cannot legally come on vwp intending to immigrate and adjust status from within US.

[mythicus 0]

hey, thanks for the replies!

So it was a telephone conversation I had with the USCIS. The lady representing the USCIS went through a computer based template to see what the possible routes for raising an I-485. On this template the VWP was stated as an option for entry for the I-485. but this is contradictory to everything I have sen or heard so far. Hence my confusion!

Thanks

Mike

[Ozz777 23]

I'd not risk it myself, and just get on filing dcf now. That'll give you time to wrap up your business in the UK and peace of mind to know you're going by the book, as it were. Good luck to you and yours.

[Nich-Nick 3,354]

It's about the "intent". If you enter the US as a tourist/visitor but your intent is to immigrate, then you have fraudulently used the VWP to circumvent immigration procedures. If you present yourself at the airport Immigration control and they ask "what is the purpose of your trip?" and you answer "I came here to stay because my wife lives here and have no intention of leaving when my 90 days are up", you will probably be put on the next plane back to the UK. That would not be proper use of VWP.

If you come to visit your wife with the "intent" of returning to the UK, but make a random decision to remain and file for adjustment of status, then you could be approved.

[lost_at_sea 995]

Edit. Sorry. Didn't realise USC half already left UK, so DCF is out.

Edited July 16, 2013 by lost_at_sea

[Lisa-O 8]

It's about the "intent". If you enter the US as a tourist/visitor but your intent is to immigrate, then you have fraudulently used the VWP to circumvent immigration procedures. If you present yourself at the airport Immigration control and they ask "what is the purpose of your trip?" and you answer "I came here to stay because my wife lives here and have no intention of leaving when my 90 days are up", you will probably be put on the next plane back to the UK. That would not be proper use of VWP.

If you come to visit your wife with the "intent" of returning to the UK, but make a random decision to remain and file for adjustment of status, then you could be approved.

When I used to visit my fiance, I was asked to show proof of return ticket and where I worked etc...so be wary of 'random decision to remain'.

[Nich-Nick 3,354]

When I used to visit my fiance, I was asked to show proof of return ticket and where I worked etc...so be wary of 'random decision to remain'.

Good point. As with any visit on VWP, the traveler should have a return ticket, and proof of ties to home, and suitcases packed that look like someone on vacation, not moving.

[Harpa Timsah 13,260]

The people you call are the "misinformation line." They are not supposed to give advice. It is called visa fraud to enter on one visa meant for once purpose with the intent to use it for a different purpose.

If you had asked this question when you were already in the US you'd get a different answer.

[mythicus 0]

Hi everyone.

Thanks for responses. I think its fairly clear that this means the Consular route.

Thanks!

Mike

[Ivy. 113]

Hi Mike,

Unless I understood incorrectly, "the consular route" or DCF is not an option for you. You stated in your first post that your wife went to the US in January. Is she still there? DCF is for couples that both live abroad, in your case your USC wife should live in the UK with you.

If your wife lives in the US and you are in the UK, you have to do the oldfashioned IR-1 route.

Ivy

[lost_at_sea 995]

Hi Mike,

Unless I understood incorrectly, "the consular route" or DCF is not an option for you. You stated in your first post that your wife went to the US in January. Is she still there? DCF is for couples that both live abroad, in your case your USC wife should live in the UK with you.

If your wife lives in the US and you are in the UK, you have to do the oldfashioned IR-1 route.

Ivy

That's correct. To be able to do Direct Consular Filing in London, she'd need to be living in the UK for 6 months prior to filing the I-130 (evidenced through a passport entry clearance stamp). Once the I-130 is filed, she'd be free to move back to the US.

As she is already living back in the US, this is the guide to follow: http://www.visajourney.com/content/i130guide1

[mythicus 0]

Hi,

Thank you, I will look at this tonight and we will go down this path,

Thanks

Mike