AOS and VWP Entries

[benjicher 26]

Hi all,

I'm a USC married to a Belgian, both living in exile in France (DOMA) since 2003. I filed my I-130 in January 2014 and am now working to see how we can reduce the separation time after I have to move back to the US.

I've been following the news and blogs around the USCIS policy memo PM-602-0093:

http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

For a non-lawyer, the memo seems to present the option to pursue AOS this way, but a recent consulation with an attorney left us scratching our heads. He said explicitly that this memo didn't apply to us.

Is anyone else in this boat? Anyone have experiences with AOS yet in this way?

Thanks!

Jon

[Harpa Timsah 13,258]

Hi Jon!

The issue is, that it is illegal to enter the US on a non-immigrant visa with the intent to immigrate.

This option exists for people already in the US for whatever reason, but to plan to do this is visa fraud.

You can consult with a lawyer about your options, but no one on this board can help because this board is only for legal advice and that is illegal.

Best of luck.

[benjicher 26]

Harpa,

This is what the lawyer said, but then why would they issue a policy memo for what seems to be the obscure case of someone who comes on VWP and gets married within 90 days?

Jon

Hi Jon!

The issue is, that it is illegal to enter the US on a non-immigrant visa with the intent to immigrate.

This option exists for people already in the US for whatever reason, but to plan to do this is visa fraud.

You can consult with a lawyer about your options, but no one on this board can help because this board is only for legal advice and that is illegal.

Best of luck.

[Harpa Timsah 13,258]

From what I can tell, that memo refers to people who file AOS after overstaying their VWP. For a short time in 2011 or 2012 some local offices were denying any AOS from an overstayed VWP entrant.

We had on here, for instance, a person whose mother brought them to the US on the VWP when she was a child. She had lived here ever since, and she had gotten married. For a person that entered on a visa, the law is clear that overstay is not a barrier to Adjusting based on marriage to a USC. But because she entered on the VWP (not a visa), even though she was little and had no control over it, her success was very much in jeopardy. This is the exact scenario that AOS from within the US is allowed, because it would be overly bureaucratic and possibly detrimental to make the immigrant leave the US (usually incurring a 10-year ban to reentry).

We did have some people who were denied AOS from VWP if they filed after the 90 days (which is most people).

Now USCIS has decided uniformly that a person who files AOS from overstayed VWP should be treated like all other applicants.

That doesn't erase the fact that it is illegal to enter the US on a non-immigrant visa with the intent to immigrate. This memo is about people who are already here.

Hope that helps. Good luck.