AOS application for VWP entrants with updated Nov 2013 Policy Memorandum

[bluesunshine 15]

Hi!

This is my first posting but I've been surfing the forums for help & guides and had trouble finding any information on the impact of the Nov 2013 update for AOS applicants who were admitted to the U.S. under the Visa Waiver Program.

Just a quick overview on my background, my husband, a U.S. citizen, moved to Singapore 4 years ago for work. We met at work 2 years ago, and got married in Singapore after 1.5 years of dating. His office recently re-located him back to the U.S. for work, and I am planning to enter the U.S. on the Visa Waiver Program, with the intention of applying for the I-130 and AOS concurrently.

I understand that previously, it's considered as immigration fraud/illegal if i were to apply for AOS if I enter the U.S. on the Visa Waiver Program.

But with the policy memorandum update in Nov 2013, (link here: http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf), does it mean that we can apply for the AOS & I-130 even though I will enter the U.S. with the Visa Waiver Program?

[van1234essa 11]

Hi!

This is my first posting but I've been surfing the forums for help & guides and had trouble finding any information on the impact of the Nov 2013 update for AOS applicants who were admitted to the U.S. under the Visa Waiver Program.

Just a quick overview on my background, my husband, a U.S. citizen, moved to Singapore 4 years ago for work. We met at work 2 years ago, and got married in Singapore after 1.5 years of dating. His office recently re-located him back to the U.S. for work, and I am planning to enter the U.S. on the Visa Waiver Program, with the intention of applying for the I-130 and AOS concurrently.

I understand that previously, it's considered as immigration fraud/illegal if i were to apply for AOS if I enter the U.S. on the Visa Waiver Program.

But with the policy memorandum update in Nov 2013, (link here: http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf), does it mean that we can apply for the AOS & I-130 even though I will enter the U.S. with the Visa Waiver Program?

From your link I read this:

"Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS exercises this discretion on behalf of DHS."

"But like someone actually admitted under the VWP, a refused applicant is not entitled to appeal or review of the refusal of admission."

From this and all the rest I would say 'no'. This does not say you're good to go and guaranteed to just immigrate on VWP or a tourist visa. You still can get denied and then you definitely gotta leave the country cause you can't even appeal. Not a good position to be in.

And imagine this: if they changed their policy to allow adjustment of status from a non immigrant visa, America will be flooded with fiancées and wifes/husbands that don't wanna wait anymore for their visa within no time, meaning the usa would loose billions on issuing those visas.

Wouldn't make sense

[bluesunshine 15]

hi! thanks for the reply! It's good to have someone's opinion of it. I've been reading the policy memorandum several times to try to make sense of it and parts of it confused me...

The line which you've quoted "Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS exercises this discretion on behalf of DHS." makes me believe that applicants cannot apply for AOS if they enter the U.S on the Visa Waiver Program.

But there is this paragaph further down that states:

"INA section 245©(4) renders aliens admitted under the VWP ineligible to adjust status to that of a person admitted for permanent residence . This provision, however, includes an exception for immediate relatives of U.S. citizens . Thus, an individual admitted under the VWP who is also an immediate relative is not precluded from seeking adjustment of status, even after the VWP period has expired."

It's the last sentence that has me confused...does that mean individuals admitted under VWP can apply for AOS but it is still at the discretion of the DHS?

[van1234essa 11]

Nobody says that there aren't people that actually adjust status from VWP. It's just that there's a difference about how you start the process.

Just take the ones that claim they went on a trip and decided for a spontaneous marriage. Those a perfectly legal to adjust status from VWP. But those that have the intent to immigrate BEFORE actually entering the usa are committing visa fraud. You knew better.

It's a grey area. And it's totally up to you if you wanna take the risk of

1. Not being granted admission to the usa if you tell border control you're here to stay (you don't wanna lie, do you?)

Or

2. Being 'escorted' from the country in the case you're adjustment application gets denied. Cause remember the second quote I posted: People that come on VWP are not allowed to appeal a denied AOS.

Now there might be people that say you're fine and uscis will approve your AOS anyways cause they do so with many cases. But that doesn't mean it's right and fair to other couples that do it the right and legal way. You basically would jump in front of all these couples that patiently play the waiting game. So yea I would consider that as well.

[f&c 50]

Nobody says that there aren't people that actually adjust status from VWP. It's just that there's a difference about how you start the process.

Just take the ones that claim they went on a trip and decided for a spontaneous marriage. Those a perfectly legal to adjust status from VWP. But those that have the intent to immigrate BEFORE actually entering the usa are committing visa fraud. You knew better.

It's a grey area. And it's totally up to you if you wanna take the risk of

1. Not being granted admission to the usa if you tell border control you're here to stay (you don't wanna lie, do you?)

Or

2. Being 'escorted' from the country in the case you're adjustment application gets denied. Cause remember the second quote I posted: People that come on VWP are not allowed to appeal a denied AOS.

Now there might be people that say you're fine and uscis will approve your AOS anyways cause they do so with many cases. But that doesn't mean it's right and fair to other couples that do it the right and legal way. You basically would jump in front of all these couples that patiently play the waiting game. So yea I would consider that as well.

It is not illegal to file AOS from VWP and the issue of fairness is opinion and debatable.

[Merrytooth 5,748]

It is not illegal to file AOS from VWP and the issue of fairness is opinion and debatable.

Why can't people openly declare to the CBP at POE that they want to enter US and AOS, if it is truly that legal?

OP already mentioned that

"I am planning to enter the U.S. on the Visa Waiver Program, with the intention of applying for the I-130 and AOS concurrently."

Not some sort of "Oh I change my mind after entering US".

[van1234essa 11]

It is not illegal to file AOS from VWP and the issue of fairness is opinion and debatable.

It is very much so. If you're telling the immigration officer upon your arrival with VWP that you are planning to stay I dare to bet all I have that you won't be granted admission to the usa. So in order to even get in the country you would have to lie. Lying to the government.. Mmh.. Legal?

The ones that are allowed to adjust status after entering with VWP are the ones that had no intend to stay when they entered in the first place. So yes she can say 'I'm just here for vacation' and later claim that it was spontaneous.. But that's not legal nor correct. Visa fraud based on a lie to the immigration officer. And even if her AOS gets approved based on that lie, no person with some sort of morals would want that.

But since you say fairness is opinion and debatable I already see what way you would choose.

I would never advise to do something immoral.

[f&c 50]

Why can't people openly declare to the CBP at POE that they want to enter US and AOS, if it is truly that legal?

OP already mentioned that

"I am planning to enter the U.S. on the Visa Waiver Program, with the intention of applying for the I-130 and AOS concurrently."

Not some sort of "Oh I change my mind after entering US".

I was not referring strictly to the OP in my post. How can one declare intention to file AOS if one does not know they are going to file AOS? Some people do have a change of heart. This is often discussed on VJ, but intent alone is not a basis for denial. If fraud is involved in anyone's case, hopefully it will be discovered at some point in the process.

[f&c 50]

It is very much so. If you're telling the immigration officer upon your arrival with VWP that you are planning to stay I dare to bet all I have that you won't be granted admission to the usa. So in order to even get in the country you would have to lie. Lying to the government.. Mmh.. Legal?

The ones that are allowed to adjust status after entering with VWP are the ones that had no intend to stay when they entered in the first place. So yes she can say 'I'm just here for vacation' and later claim that it was spontaneous.. But that's not legal nor correct. Visa fraud based on a lie to the immigration officer. And even if her AOS gets approved based on that lie, no person with some sort of morals would want that.

But since you say fairness is opinion and debatable I already see what way you would choose.

I would never advise to do something immoral.

There is no call for that. I would appreciate that you refrain from impugning my integrity and morals as you do not know me. I commented generally on one part of your post. No need to get personal. Thank you.

[van1234essa 11]

There is no call for that. I would appreciate that you refrain from impugning my integrity and morals as you do not know me. I commented generally on one part of your post. No need to get personal. Thank you.

Maybe that's the problem? You didn't read my posts very well. I said in each and one of them that adjusting from VWP without intention upon arrival is perfectly legal and those can adjust status all they want.

It's the ones that immigrate with intent to stay and lie, that are being 'unfair' to others.

You just generally said it's not illegal to adjust from VWP, when it actually can be.

And if you think THAT is debatable or opinion, then I, with no disrespect, don't mind at all that I don't know you

[f&c 50]

Maybe that's the problem? You didn't read my posts very well. I said in each and one of them that adjusting from VWP without intention upon arrival is perfectly legal and those can adjust status all they want.

It's the ones that immigrate with intent to stay and lie, that are being 'unfair' to others.

You just generally said it's not illegal to adjust from VWP, when it actually can be.

And if you think THAT is debatable or opinion, then I, with no disrespect, don't mind at all that I don't know you

Fairness is a matter of opinion. I made a statement and did not advise the OP on what to do. There was no need for you to say, "I already see what way you would choose." Maybe I misuderstood your point and perhaps I can do a better job using the quote feature, but my initial response was only to this part of your post:

"Now there might be people that say you're fine and uscis will approve your AOS anyways cause they do so with many cases. But that doesn't mean it's right and fair to other couples that do it the right and legal way. You basically would jump in front of all these couples that patiently play the waiting game. So yea I would consider that as well."

[van1234essa 11]

Fairness is a matter of opinion. I made a statement and did not advise the OP on what to do. There was no need for you to say, "I already see what way you would choose." Maybe I misuderstood your point and perhaps I can do a better job using the quote feature, but my initial response was only to this part of your post:

"Now there might be people that say you're fine and uscis will approve your AOS anyways cause they do so with many cases. But that doesn't mean it's right and fair to other couples that do it the right and legal way. You basically would jump in front of all these couples that patiently play the waiting game. So yea I would consider that as well."

See, misunderstanding solved and nobody harmed.

And never would I have said that you advised the op, just saying I wouldn't advise to do something I, myself, find immoral and that's why I sticked with my point at that time that it would be just plain unfair to not care about that.

I apologize that you thought I tried to get at you personally. I don't take this too serious, more with a pinch of humor.

[f&c 50]

See, misunderstanding solved and nobody harmed.

And never would I have said that you advised the op, just saying I wouldn't advise to do something I, myself, find immoral and that's why I sticked with my point at that time that it would be just plain unfair to not care about that.

I apologize that you thought I tried to get at you personally. I don't take this too serious, more with a pinch of humor.

I understand. I usually am the same way. Sorry if I overreacted.

[bluesunshine 15]

hi all!! thanks for the discussion!! I absolutely didn't mean to start a topic that would cause such a heated discussion...but i definitely see the points raised by both of you.

Maybe I should have rephrased my intentions..I will be entering the U.S on the VWP but I have already purchased a return ticket back to Singapore within the 90-days period, and I will return home to Singapore on my specific return date. I have no intentions of overstaying, and will leave & enter U.S. within the 90-days period as required legally.

The purpose of going to the U.S. is to also to visit my stepchilden & in-laws, and also accompany my husband while he sets up our new home.

So yes, there is truth in that I have intentions of immigrating to U.S. before entering the U.S., but regardless of whether I will be filing for the AOS or not, I will be leaving U.S. within the 90-days period before re-entering legally.

We could have applied for my visa in SG but due to the sudden job relocation (the job offer came in early Jan'14 and he needs to start work by mid March), we have no time right now to prepare for it. On top of that, we also assumed that it would be easier for us to apply when we are in the U.S.

But now that I'm doing my research on the I-130 and AOS, it seems like it's illegal to apply for the AOS while on the VWP, and that got me really worried.

The question now with the new policy memorandum, is it still illegal for me to file for AOS while I'm visiting on the VWP, given my situation?

Edited March 10, 2014 by alleycat777

[aussie_jason 195]

If you're already here and asking then the answer is yes, but if you are still outside the country and asking the answer is no unless it is a spur of the moment decision.