Applying for adjustment of status while visiting hubby in the States.

[Boiler 43,787]

The vast majority of people travel without issue when going through this procedure.

There are of course a few cases that pop up, usually there is another reason. The lady who turned up with her cats and worldly possessions comes to mind.

[Darnell 8,478]

Do you think this is totally doable on our own as we have done everything on our own so far..

If you were asking me, what do you think my answer would be ?

[Gia2577 12]

Actually the reason I hired a lawyer just to make sure we got everything right... (and believe me I have experience dealing with immigration (I finally became US citizen in 2011 after many years)... was because my husband was almost denied entry on the ESTA visa... (this was before we filed the I-130... because the officer said that he could come in and just STAY since we were married...and that WOULD be illegal.... anyway, what it comes down to is this... the officer has the final say and whatever he determines goes... another example..... my best friend married his wife in Germany, applied for I-130 CR-1 Visa... his wife flew from Frankfurt to New York for a visit (she was going back)... but she made the mistake of bringing personal things with her like wedding album, house things, etc... to get a head start on the eventual move... the officer told her that she had an "intent to stay"... even though they were married and had already filed the I-130.... she was put on the next plane back to Frankfurt at their expense.... that's what happened.... they hired a lawyer and she told them the same thing my lawyer did.... that the officer may or may not believe you are here "just to visit" on a visa waiver... and so if you are lucky and get a nice officer...no problem, but if you don't you'll be on the next plane back.... I already went through this with our lawyer. In fact, the last time I saw my husband was in Mexico...so we could see each other there.... because she said any time you enter you COULD have a problem....

I'm not an expert by any means... I have just been witness to many of these problems and don't want anybody to have to go through that. All my lawyer did was confirm what I have seen over the years in immigration cases.

Ok well I don't know what to tell you, but do what you're gut instincts tell you or follow your lawyers advice clearly thats what you're paying her for. Maybe I've been lucky, I've never had a problem twice I came without him and said I was visiting him and no questions asked. Another time was with him and no questions asked..so yeah not sure what to tell you or what answer you are looking for. I have not and i guess a few many others on this thread have not had problems on the VWP. He should be able to come and go as he pleases. I mean I didn't even have a return ticket bc we both have airline industry tickets which are standby tickets and only book them just before we leave. That sucks for you guys, I hope it resolves itself.

[Gia2577 12]

I did this all on m own, before finding VJ and without a lawyer. No RFEs. All you need to know is in the instructions. If you can read and follow instructions, then you can do it. VJ helps you by giving you the list of forms.

Hi Harpa, I know you must be sick of me but just wanted to make sure about something.

Im reading all the instructions for the the i-485 straight from the uscis website and am still worried about my VWP expiring and overstaying and not being eligible for the adjustment and getting myself into serious trouble. Im not finding it very clear under who can file and who cannot where I am or am not allowed..

Under who can file, its 1.A and under 'who is NOT eligible, under 11 it says that I can't dpi on VWP unless I am a spouse right?

but there is that bit at 4. about the authorised length of stay expiring...

If you were asking me, what do you think my answer would be ?

Darnell have you done this procedure?? Our discussion earlier is that my VWP expires in just under two weeks and even though I will do my best to have it filed before then it might not make it. Is overstay a problem?

[Darnell 8,478]

Nope, I've not done this procedure. However, other folk on VJ have, and written about it. I'm a reader, and a gister, and a massive fan of the advanced search tool here.

Now, as to your VWP overstay - IMO, is best to file before you go out of status. Regardless, after you file, a new period of authorized stay commences. Remember, a PHOTOCOPY of the BC will suffice with the submittal, so if you have a scan somewhere, print it out, submit it with the I-485.

Edited November 13, 2013 by Darnell

[Harpa Timsah 13,258]

Hi Harpa, I know you must be sick of me but just wanted to make sure about something.

Im reading all the instructions for the the i-485 straight from the uscis website and am still worried about my VWP expiring and overstaying and not being eligible for the adjustment and getting myself into serious trouble. Im not finding it very clear under who can file and who cannot where I am or am not allowed..

Under who can file, its 1.A and under 'who is NOT eligible, under 11 it says that I can't dpi on VWP unless I am a spouse right?

but there is that bit at 4. about the authorised length of stay expiring...

Darnell have you done this procedure?? Our discussion earlier is that my VWP expires in just under two weeks and even though I will do my best to have it filed before then it might not make it. Is overstay a problem?

The fact that overstay is irrelevant for people in your situation is in the laws. I do think it spells this out in the form instructions, but you have to follow the lines, you found where it says VWP, then it says exception for spouses, so that is good. Somewhere else it says you are ineligible to file if you have overstayed, then it says exception for spouses. You can find that.

I am positive and it is a known thing around here. I could find it in the INA (Immigration an Nationality Act) for you but I really don't feel like going through it for something I am so sure about

I think in the last year there was a VJ approval for a person who had 27 years of overstay.

Edited November 13, 2013 by Harpa Timsah

[JayJayH 546]

well this is just it, I didn't think it mattered really what country you came from as rules are rules right? Visa waiver is just our type of visa I'm pretty sure she just meant any kind of visa..i don't know..im worried its not good information as I don't want to screw things up for us following this advice..

me too Shamo Lisa Im curious as to what people say which is why i thought its best to come on here and ask about it. but yeah she said it very matter of fact and I was shocked because I didn't even ever factor that as an option thinking that rules are rules..

The Visa Waiver Program is not a visa, it's a visa waiver, to which only citizens of certain countries are eligible. Meaning you don't need a B-2 visa to visit the US like more visitors, just your passport and an electronically approved ESTA. Meaning you never have to visit an embassy and apply. Meaning it's fairly easy to visit the US even with a pending I-130, whereas actually applying for a visa with a pending I-130 is next to impossible.

The USCIS officer said that you can adjust status while in the US on the VWP. You can, legally, no problem. The problem arises when you enter the US on the VWP. If you tell the CBP officer at the airport that you intend to enter, and then file for adjustment of status, the CBP will detain you and send you back to Australia on the next available flight, citing 214(b) that you're inadmissible as a visitor because you intend to immigrate. So how do you get around this? You would have to tell the CBP officer that you intend to enter the US as a visitor, and then intend to return to Australia. This is willful material misrepresentation - lying to a federal officer, and carries a lifetime bar if caught.

Adjustment of status is legal only if you enter the US with intent to return to Australia, but then after entry change your mind and file for adjustment of status.

Edited November 13, 2013 by Yang-Ja

[cdneh 3,112]

The Visa Waiver Program is not a visa, it's a visa waiver, to which only citizens of certain countries are eligible. Meaning you don't need a B-2 visa to visit the US like more visitors, just your passport and an electronically approved ESTA. Meaning you never have to visit an embassy and apply. Meaning it's fairly easy to visit the US even with a pending I-130, whereas actually applying for a visa with a pending I-130 is next to impossible.

The USCIS officer said that you can adjust status while in the US on the VWP. You can, legally, no problem. The problem arises when you enter the US on the VWP. If you tell the CBP officer at the airport that you intend to enter, and then file for adjustment of status, the CBP will detain you and send you back to Australia on the next available flight, citing 214(b) that you're inadmissible as a visitor because you intend to immigrate. So how do you get around this? You would have to tell the CBP officer that you intend to enter the US as a visitor, and then intend to return to Australia. This is willful material misrepresentation - lying to a federal officer, and carries a lifetime bar if caught.

Adjustment of status is legal only if you enter the US with intent to return to Australia, but then after entry change your mind and file for adjustment of status.

Which is what she has done.

[David & Diana R 1,005]

Wow!

[Boiler 43,787]

This is willful material misrepresentation - lying to a federal officer, and carries a lifetime bar if caught.

Adjustment of status is legal only if you enter the US with intent to return to Australia, but then after entry change your mind and file for adjustment of status.

Misrep is a lifetime ban, what is often not mentioned is that it is waiverable, a waiver that is pretty easy to get.

Amusingly I have only met one person here who came on a K1 and a couple on CR/IR. The vast majority entered on non immigrant visa' and adjusted.

From a practical perspective I can only remember one case and that was 7? years ago. I have seen a few cases where a Consulate has applied a misrep charge, but those seem to be where they were looking for something due to other issues.

The general feedback is that they do not ask, and even in the very rare case where they might, you would have to admit what effectively is your thoughts at the time.

My assumption is that USCIS knows it happens, stupid to think they do not, but it is both no biggie and a waste of their resources to follow up anyway. They have clearly announced priorities, this is not anywhere near any of them.

It would be easy enough from a legal perspective to stop.

Edited November 13, 2013 by Boiler

[Gia2577 12]

The Visa Waiver Program is not a visa, it's a visa waiver, to which only citizens of certain countries are eligible. Meaning you don't need a B-2 visa to visit the US like more visitors, just your passport and an electronically approved ESTA. Meaning you never have to visit an embassy and apply. Meaning it's fairly easy to visit the US even with a pending I-130, whereas actually applying for a visa with a pending I-130 is next to impossible.

The USCIS officer said that you can adjust status while in the US on the VWP. You can, legally, no problem. The problem arises when you enter the US on the VWP. If you tell the CBP officer at the airport that you intend to enter, and then file for adjustment of status, the CBP will detain you and send you back to Australia on the next available flight, citing 214(b) that you're inadmissible as a visitor because you intend to immigrate. So how do you get around this? You would have to tell the CBP officer that you intend to enter the US as a visitor, and then intend to return to Australia. This is willful material misrepresentation - lying to a federal officer, and carries a lifetime bar if caught.

Adjustment of status is legal only if you enter the US with intent to return to Australia, but then after entry change your mind and file for adjustment of status.

Yes thanks, we have definitely covered this well and truly, and when i entered my intent was always to return because I didn't know any better, i also knew I was going to return this is something that came up yesterday as an option for us.. If you read the whole thread we have well and truly covered where we stand.

[Gia2577 12]

Just to clarify, there are two completely different scenarios that are being discussed here:

a) OP, who is now in the states, goes out of the US and then comes back and then attempts AOS

b) OP does AOS right now, does not leave until getting EAD or maybe Green Card

Most of the people talking about visa fraud and stuff like that are talking about a), and the other people are talking about b), and the OP is talking about both (started saying a), now talks about b).

It is impossible to have a coherent discussion without the people that give advice specifying if they are talking about a) or b). As Harpa clearly stated, a) is something you do NOT want to do because you can have big problems. And b) sounds about right.

I said the two scenarios bc that is what I WAS told by USCIS officer yesterday, she actually suggested I leave the country in two weeks and come back do it so as not to overstay. Again she did not mention fraud or that it was not allowed she just said I can and go and come as I please and when I want to AOS I can. In fact she told me to wait for the approval before attempting it and so to leave the country and come back in legally and do it. It was through THIS forum and people such as Harpa who have now told me that is not the case and I should not follow those instructions I should just stay and file it. You might need to ready the whole thread before assuming what I mean't or didn't mean. I stumbled across the AOS procedure and was only aware it was controversial through this site otherwise I would not have mentioned it to begin with if I wanted to be sneaky.

[Boiler 43,787]

I said the two scenarios bc that is what I WAS told by USCIS officer yesterday, she actually suggested I leave the country in two weeks and come back do it so as not to overstay. Again she did not mention fraud or that it was not allowed she just said I can and go and come as I please and when I want to AOS I can. In fact she told me to wait for the approval before attempting it and so to leave the country and come back in legally and do it.

Being out of status for a few days is not major risk.

I think she is telling you the practice as opposed to the theory.

Once you have filed to adjust Status AND have AP in hand you are certainly good to go.

[Franciscus 32]

I said the two scenarios bc that is what I WAS told by USCIS officer yesterday, she actually suggested I leave the country in two weeks and come back do it so as not to overstay. Again she did not mention fraud or that it was not allowed she just said I can and go and come as I please and when I want to AOS I can. In fact she told me to wait for the approval before attempting it and so to leave the country and come back in legally and do it. It was through THIS forum and people such as Harpa who have now told me that is not the case and I should not follow those instructions I should just stay and file it. You might need to ready the whole thread before assuming what I mean't or didn't mean. I stumbled across the AOS procedure and was only aware it was controversial through this site otherwise I would not have mentioned it to begin with if I wanted to be sneaky.

My post was in no way offensive to you. You did start saying "leave the US now", and then said "stay and AOS". It was apparently not your fault, so you should not take offense at all!

"You might need to ready the whole thread", let me laugh a little bit about this one. Mostly everyone that posted here is trying to help you. I was actually trying to help you too, stating how some of the people are not giving you correct advice, and how some (like Harpa and others) are.

AOS is actually not controversial at all, it is legal and that's all that matters.

[visawaver 2]

My experience-My spouse and I filed an I-130 and I-129 F.My spouse then entered on VWP for a visit.No questions asked at the POE by immigration,she was just waved through with a smile.She then changed her mind and decided to stay so we filed AOS here.Just received the temporary papers and we are now waiting for the biometrics appointment.No problems,things went fine.This after I was accused and warned by people on visajourney that we would be committing fraud,that we have obvious intent,etc.I have found some good advice here but there are also some who go overboard with the screams of "intent" and "fraud"