LPR wants to change from DCF to AOS

[brits1998 3]

Hi VJ Members,

My wife is a LPR and has currently started the filing process for me. I currently work and live in my native country. We have a 5 month old daughter and its becoming increasingly hectic on my wife with her alone. Also, it's compounded by us being apart. The i-130 has already been approved and sent to NVC; my PD is Sept 23, 2013. I have B1\B2 visa so I currently travel back and forth to see them but I wanted to find out if I can go to the US and do an Adjustment of Status instead of Consular filing if it applies to LPR? And if so, what are processes to be undertaken?

I was thinking it's better for us to wait until my PD becomes current but we still want to know our options if any.

Thanks Much.

[Harpa Timsah 13,258]

It is illegal to enter the US on a tourist visa with the intent to immigrate.

[aaron2020 11,651]

Do not do it.

It's illegal to enter on a tourist visa with the intent to immigrate.

However, this is generally overlooked for Immediate Relatives of US citizens.

It is not overlooked for relatives of LPRs.

Saving a few months to risk a denial of the AOS and lose your chances of immigrating to the US is not a good idea.

[apple21 953]

Hi VJ Members,

My wife is a LPR and has currently started the filing process for me. I currently work and live in my native country. We have a 5 month old daughter and its becoming increasingly hectic on my wife with her alone. Also, it's compounded by us being apart. The i-130 has already been approved and sent to NVC; my PD is Sept 23, 2013. I have B1\B2 visa so I currently travel back and forth to see them but I wanted to find out if I can go to the US and do an Adjustment of Status instead of Consular filing if it applies to LPR? And if so, what are processes to be undertaken?

I was thinking it's better for us to wait until my PD becomes current but we still want to know our options if any.

Thanks Much.

Aside for the intent to use a tourist visa to AOS (which is fraud), you cannot adjust status because your PD is not current.

If you want the process to go smoothly, stay in track with your F2A petition. You can certainly visit but never abuse the visa. Overstays are not forgiven for spouses of green card holders.

Edited February 5, 2014 by apple21

[brits1998 3]

Ok thanks Harpa.

Aaron, do you know why they would have an issue with relatives of LPR filing DCF if it's legal to immigrate on tourist visa?

[apple21 953]

DCF (Direct Consular Filing) is when the petitioner is residing abroad in the same country as the beneficiary. That is not your case. You are under Consular Processing.

[brits1998 3]

Aside for the intent to use a tourist visa to AOS (which is fraud), you cannot adjust status because your PD is not current.

If you want the process to go smoothly, stay in track with your F2A petition. You can certainly visit but never abuse the visa. Overstays are not forgiven for spouses of green card holders.

Ok didn't know it's a fraud, thanks. If that's a fraud then I'll just wait as I don't want to mess up our processing.

Well, i never intented to abuse my visa or to overstay my time which is the exact reason why I wanted to find out about this process.

[brits1998 3]

DCF (Direct Consular Filing) is when the petitioner is residing abroad in the same country as the beneficiary. That is not your case. You are under Consular Processing.

Ok - yes that's what I wanted to find out about then.

So AOS to CP really only applies to US Citizens then?

meaning, relatives of US citizens.

[christeen 966]

AOS is not a legal option for you... The law allows for someone already here in the USA to adjust their status NOT to enter as a tourist with the intention if staying and adjusting status... So hang in there it should not be too much longer!

[apple21 953]

Ok - yes that's what I wanted to find out about then.

So AOS to CP really only applies to US Citizens then?

meaning, relatives of US citizens.

You are under CP.

What you're asking is if you can change from CP to AOS.

Answer: No, because (1) using tourist visa with intent to AOS is fraud, (2) your PD is not current.

Edited February 5, 2014 by apple21

[aaron2020 11,651]

Ok thanks Harpa.

Aaron, do you know why they would have an issue with relatives of LPR filing DCF if it's legal to immigrate on tourist visa?

The issue with an LPR doing a DCF is that an LPR must reside in the US and a DCF requires 6 months of residency in the foreign country. It's opposite requirements. Almost impossible for both requirements to be met. Meeting one means violating the other.

As others have states, you are not doing a DCF. You would go through Consular Pricessing which is completely different from DCF.

It's NEVER legal to immigrate on a visitor visa. It's just that it is overlooked for IR of USCs. It's a legal distinction which does not make sense because people see these folks get green cards and mistakenly thinks the law allows them to immigrate with a tourist visa.

Edited February 5, 2014 by aaron2020

[christeen 966]

It's NEVER legal to immigrate on a visitor visa. It's just that it is overlooked for IR of USCs. It's a legal distinction which does not make sense because people see these folks get green cards and mistakenly thinks the law allows them to immigrate with a tourist visa.

This statement is incorrect. The law allows for AOS from tourist visas provided that they did nid not enter with the INTENT to marry... Furthermore, intent alone CANNOT be a reson to deny... So to make a blanket statement that it is NEVER legal is not correct.

But for the OP clearly would have intent (since they are not here yet) and thus, it is intent and thus, to allowed.

[Harpa Timsah 13,258]

Ok thanks Harpa.

Aaron, do you know why they would have an issue with relatives of LPR filing DCF if it's legal to immigrate on tourist visa?

It is not legal to immigrate on a tourist visa.

A process exists for people who are already in the US on a tourist visa, but this is more for someone who has long overstayed and then got married, done as a courtesy to the USC.

Purposefully entering the US on a tourist visa with a plan to immigrate is not legal.

[brits1998 3]

AOS is not a legal option for you... The law allows for someone already here in the USA to adjust their status NOT to enter as a tourist with the intention if staying and adjusting status... So hang in there it should not be too much longer!

Thanks Christeen, I'm trying but like many of us, it's hard being away from our families.

You are under CP.

What you're asking is if you can change from CP to AOS.

Answer: No, because (1) using tourist visa with intent to AOS is fraud, (2) your PD is not current.

Ok thanks much for the info.

[aaron2020 11,651]

This statement is incorrect. The law allows for AOS from tourist visas provided that they did nid not enter with the INTENT to marry... Furthermore, intent alone CANNOT be a reson to deny... So to make a blanket statement that it is NEVER legal is not correct.

But for the OP clearly would have intent (since they are not here yet) and thus, it is intent and thus, to allowed.

Actually, your statement is incorrect.

Where dose it say that people can adjust if they did not enter with the intent to marry?

The rule is that a person cannot adjust if they enter with the intent to immigrate. The intent to immigrate is completely different from the intent to marry.

Please understand the distinction between something that is allowed versus something that is not allowed but will be forgiven or overlooked. It's a subtle distinction.