Confused re overstaying on VWP

[bec_goe 4]

My husband knows of a couple that got married and at a later date the wife came back to the USA on a VWP before they started the process of a CR-1.

She ended up overstaying the VWP and she stayed in the country while the CR-1 was being processed.

The wife wasn't kicked out of the country and ended up staying in the USA.

Is this even possible? Isn't this immigration fraud?

[Transborderwife 4,666]

Not fraud but she'd likely be ineligible due to a bar.

Are you sure that she didn't adjust in country? If so yes that is fraud

[JayJayH 546]

It's not fraud to enter the U.S. on the VWP while CR-1 is in process.

If she stayed in the U.S., and got a green card without her leaving, this is what happened:

1. She entered on the VWP with the intent to go back within 90 days.

2. She changed her mind, they cancelled the CR-1 route and rather filed for adjustment of status from tourist to permanent resident.

If she entered the U.S. on the VWP with the intention of staying to adjust status, then yes, that would be fraud. She just wasn't caught.

[bec_goe 4]

It's not fraud to enter the U.S. on the VWP while CR-1 is in process.

If she stayed in the U.S., and got a green card without her leaving, this is what happened:

1. She entered on the VWP with the intent to go back within 90 days.

2. She changed her mind, they cancelled the CR-1 route and rather filed for adjustment of status from tourist to permanent resident.

If she entered the U.S. on the VWP with the intention of staying to adjust status, then yes, that would be fraud. She just wasn't caught.

I just wasn't sure how it was possible. How on earth can she prove that she changed her mind?!

I am going through the CR-1 route myself and I understand I have to wait quite some time before I can move out to the USA. I certainly don't want to put myself in a position to get banned from the USA! It's slightly frustrating that some people go the easy route and can get away with this!

Not fraud but she'd likely be ineligible due to a bar.

Are you sure that she didn't adjust in country? If so yes that is fraud

I am assuming she adjusted in the country.

[JayJayH 546]

I just wasn't sure how it was possible. How on earth can she prove that she changed her mind?!

I am going through the CR-1 route myself and I understand I have to wait quite some time before I can move out to the USA. I certainly don't want to put myself in a position to get banned from the USA! It's slightly frustrating that some people go the easy route and can get away with this!

It wouln't really be on her to prove she changed her mind.

It would have been on CBP to deny entry on the VWP for immigrant intent.

Since CBP didn't deny her entry, it would be on USCIS to prove that she entered the U.S. with intent to stay and thus lied to CBP - Material Misrepresentation, making her subject to deportation with a lifetime bar from entry.

If she went back for the CR-1 interview, she'd be denied with a bar from re-entry for overstay if the overstay was 180 days or more.

Edited January 13, 2016 by JayJayH

[bec_goe 4]

It wouln't really be on her to prove she changed her mind.

It would have been on CBP to deny entry on the VWP for immigrant intent.

Since CBP didn't deny her entry, it would be on USCIS to prove that she entered the U.S. with intent to stay and thus lied to CBP - Material Misrepresentation, making her subject to deportation with a lifetime bar from entry.

If she went back for the CR-1 interview, she'd be denied with a bar from re-entry for overstay if the overstay was 180 days or more.

Thank you for the clarification.

I definitely wouldn't go down this route due to the risk of being deported and becoming barred.

[samo2016 3]

Preconceived intent is not a problem for immediate relative adjustments. This legal principle comes from Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980) and it is further explained in Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981).

The basic rule is that preconceived intent is not an inadmissibility bar (family based AOS), but fraudulent misrepresentation is. When she entered USA and was not questioned at POE about intent she can AOS. If she was, it is up to USCIS to find fraudulent misrepresentation and deny AOS.

The key theory is that silence, or failure to volunteer information, is not fraudulent misrepresentation. This is clarified in 9 FAM 40.63 and Matter of Tijam.

[anita2149 0]

My husband knows of a couple that got married and at a later date the wife came back to the USA on a VWP before they started the process of a CR-1.

She ended up overstaying the VWP and she stayed in the country while the CR-1 was being processed.

The wife wasn't kicked out of the country and ended up staying in the USA.

Is this even possible? Isn't this immigration fraud?

I understand the confusion and frustration over this. My husband and I just moved back to the States- we did the CR-1 process from Australia, part of the process included the kids and myself (USCs) moving back to the States without my husband. It was really tough going for 3 months of being apart, but he's here now, the plastic green card came in the mail last week, and we are able to move on with our lives.

I have family that did basically everything that the couple you mentioned did except instead of using VWP, they used a B2 visa, came with the intent to adjust status, and are in the process. They haven't been caught at the moment, but still don't have the green card. They've had the I-130 granted, but had their affadavit of support rejected 3 times and are still trying to refile... I suppose they can still get "caught" and have serious consequences. They tried to do things the "quick and easy" way, are taking huge risks, and their process has now taken exactly the same amount of time that ours did.

I don't see how it is worth it to try! No, it's not the right way to do things, yes, there are loopholes they can try to use to do things the "easy way," yes, there are serious consequences *if* they get caught.

[NikLR 13,234]

I know of a couple (not in person, the husband has played video games with mine) who committed fraud via AOS on the recommendation of an attorney.

There's nothing you can do about it but take assurance that you did not do so yourself.

[JFH 12,196]

Many of us have encountered people who have done this.

I know of a woman who arrived on the VWP with two cats with every intention of staying. She even updated her social media before she left saying things like "I'm moving to America next week". The CBP person was very slack in letting her in with 2 cats. It's not normal to take 2 cats on holiday with you to another country.

[JayJayH 546]

Many of us have encountered people who have done this.

I know of a woman who arrived on the VWP with two cats with every intention of staying. She even updated her social media before she left saying things like "I'm moving to America next week". The CBP person was very slack in letting her in with 2 cats. It's not normal to take 2 cats on holiday with you to another country.

Immediately thought of this lady. Until you mentioned she was let in. Seriously?

Edited January 16, 2016 by JayJayH