Dangers of attempting to AOS from VWP,what are they?

[fincadewes 0]

Hi,

I see this can be quite the controversial topic here.I gather that it is quite legal for an immediate relative of a US citizen to attempt to adjust status while visiting on a VWP,if it is done correctly.(Correctly meaning without the dreaded prior "intent" and without an overstay being an issue.) So what are the specific dangers of being denied the AOS? The relative would be a spouse in this situation.

Thanks!

[fincadewes 0]

Oh, I understand that most of the time this type of AOS attempt is approved without a problem.Other than a simple paperwork problem, under what circumstances could there be a denial of an application?

[CC90 90]

Use this forum's "search" function.

[fincadewes 0]

Thankyou for the thoughtful reply.

I have used the "search" and havent been able to find anything specific, so that is why I asked.A few references to no appeal or not being able to use the VWP again.Does no appeal mean the person cannot use the CR1 method in the future either?

How about the second part of my question about reasons for denial?

[Harpa Timsah 13,258]

If denied you can't appeal. Reasons for denial are too numerous to list, and the same for all visas. Extra denial for VWP by itself? No, but because it is a self-check permission sometimes people were not eligible to use the VWP and used it anyway, and that is a huge mess. Usually it's for ticking no to crimes of moral turpitude, when they really had a minor shoplifting charge, or something.

Edit: Where is your spouse right now?

Edited August 15, 2013 by Harpa Timsah

[belinda63 3,038]

As Harpa said, there are many reasons AOS could be denied. By filing for AOS from within the US without having undergone consular processing the problems normally caught there would be found during the AOS in the US, i.e criminal record, relationship for immigration purposes, and many other reasons for denial. Under the VWP the non USC has given up all rights to appeal any decision so if the AOS is denied that is it, denied..leave the country. And you are no longer eligible to use the VWP. I also think if the AOS is denied the time is counted against you for a ban from the country but I am not 100% sure.

Other issues that may arise are what the person stated when they entered the country, such as stating they are single when in fact they are married.
This is material misrepresentation which could result in a life-time ban. Another issue would be haviing prior intent to immigrate, such as having previously attempted to AOS inside the US or having an immigrant petition pending. This would be could proof of entering on the VWP with intent to immigrate.

[fincadewes 0]

Hi and thankyou for the post.My spouse at the moment is here sitting beside me, and has absolutely no history of criminality,pure as the driven snow.When you say no appeal,does that mean if denied we would also not be able to pursue a spousal visa in the home country? If we can lose that option too,than it is certainly not worth the risk! But it is nice to know that a denial would not mean a ban from using VWP as well.

I am not sure I understand what you mean by self check and not being eligible for VWP and using it anyway.

[fincadewes 0]

oops! Harpa says no VWP ban,belinda says yes a ban.Did I misunderstand one of you?

thanks

[belinda63 3,038]

Depends if there is an overstay. Sure if you are denied you could pursue the CR-1. You would have to overcome the reason for the denial. And if there is an overstay of 180 days or more there would be a ban which would have to be overcome with a waiver.

Edited August 15, 2013 by belinda63

[Harsh_77 718]

oops! Harpa says no VWP ban,belinda says yes a ban.Did I misunderstand one of you?

thanks

If during the process of AOS he has not overstayed there will be no ban but I am thinking he would still have hard time at POE as they would be able to see the denial which would tell them your spouse has the immigrant intent.

Personally, I don't think VWP is coming to US and then file for AOS in most cases there is already and intent of AOS even before ppl enter the country.

[fincadewes 0]

If we were to be denied the AOS for some odd reason, would the underlying I-130 still be valid,or would we need a new one to begin the CR-1? We are assuming that if the approved I-130 is still valid,it would make the CR-1 process much faster.

[Harpa Timsah 13,258]

If your spouse is here now and not a criminal and you have a real relationship, then there should not be a problem with AOS.

[Teddy B 17,252]

Deja Vu?

[belinda63 3,038]

There shouldn't be a problem unless the spouse made false statements when he/she entered the US. Or unless prior intent can be proved, such as previously entering on the VWP, filing for AOS, abandoning AOS, a few months later filing I-130, a few month later arriving on VWP and attempting AOS again. Then it is pretty clear there was intent to misuse the VWP for immigrant intent.

[senorappliance 0]

There shouldn't be a problem unless the spouse made false statements when he/she entered the US. Or unless prior intent can be proved, such as previously entering on the VWP, filing for AOS, abandoning AOS, a few months later filing I-130, a few month later arriving on VWP and attempting AOS again. Then it is pretty clear there was intent to misuse the VWP for immigrant intent.

belinda63, can you cite a reference for this statement? Actually, a voluntary abandonment of an AOS would have no effect on a future AOS attempt,as long as the person making the new AOS is in the country legally.However it is unlikely that person would be allowed into the country a second time on a VWP if there was a record of a previous withdrawn I-130 or a current I-130 that is pending.In that case they would more than likely be denied entry.