Can Spouse Enter on VWP and Apply for AOS with I-130 & I-485 questions

[Not_me123 0]

Hi, I'm new to the form and I haven't found the exact answer to some of the information I need. So, if you have an idea or can link me to a relevant thread please help me out.

I'm a 24 year old US citizen, recent college grad (spring 2015), I traveled abroad 2014-2015 and met my husband in Taiwan and we got married in Taiwan in Fall 2015. He then visited the USA on visa waiver program (VWP) for the regular limit and returned to Taiwan in Dec 2015.

He wants to return to the USA on VWP and start the application process for adjustment of status (AOS). It seems entering on VWP and applying for immigration for a relative as my spouse:

"There are two scenarios for U.S. citizen's spouse to apply for immigration:

1. The first scenario is that the alien spouse is already in the United States. In this case, the U.S. citizen can file an immigration petition (I-130) and the alien spouse can file an application to adjust status to permanent resident (I-485) at the same time."
   link http://www.hooyou.com/familybased/im_spouse.html

After further reading I found that the VWP allows for an AOS or immediate relatives:

"If you are in the U.S. based only on the VWP, then you can file for a green card based on marriage to a U.S. citizen" -
"Applicants should still be prepared to document that they did not have preconceived intent. "
link: http://www.hooyou.com/i-485/vwp-filing-memo.html#sthash.2QklIwN7.dpuf

As a new grad I have no proof of financial support for him so I would need to have my family joint-sponsor him to meet the minimum affidavit of support based on my current income and past tax documents for the last 3 years. I know it doesn't look as good for my application but it would be at least another 3 years minimum if I work full time and make at least $20,000 a year on my own before I could petition and prove support by myself.

My concern is that by entering on a VWP and filing I-130 & I-485, wouldn't that raise flags in terms of the intent to do so before he arrives? We're already legally married in Taiwan and my taxes for 2015 will state that as well. I just don't understand the entire process because there seem to be exceptions to the rules but it's not clear what is ok and what is not.

I plan on consulting a lawyer when I have the means to afford one and make sure we don't mess up when we actually start filing things. But I wanted to check online here to see if anyone can share their experience or what you know that might help my situation.

Side note I'm not sure if it helps or is relevant to our options. But his sister has lived in California for about 10 years and is already a citizen, I don't know if she ever previously filed any petitions for him.

Edited February 6, 2016 by Cuzenu

[Georgia16 2,858]

You'll have to file for a CR-1 visa. See the guides on the top tap. He can't live in us while processed

[Not_me123 0]

Ok, since we're already married, he would definitely need to use K-3 or IR-1/CR-1? The I-130 & I-485 filed at the same the time wouldn't be enough for petition as a family member?

Or would filing for one of the visas (K, IR or CR) before filing for the relative getting a green card is a more reliable option?

Ok side note: his sister never applied for him to get any sort of visa in the past.

Also I read this:
"If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 should be filed with the relative outside of the U.S to avoid deportation or denial. (Better safe than sorry) "
http://www.visajourney.com/content/i130faq

So there's no clear distinction, one site I found says you can adjust the status if it's within the 90 days. We're already married so it's not like he's coming to get married. One site says it's fine if the I-130 & I-485 are filed together and might expedite it. But if we file the I-130 before he visits, can he still even arrive on the VWP or should we just apply for the other visa instead?

Edited February 6, 2016 by Cuzenu

[Transborderwife 4,666]

Entering with intent to adjust is fraud

[Georgia16 2,858]

Ok, since we're already married, he would definitely need to use K-3 or IR-1/CR-1? The I-130 & I-485 filed at the same the time wouldn't be enough for petition as a family member?

Or would filing for one of the visas (K, Ir or CR) before filing for the relative getting a green card is a more reliable option?

Yours is the CR-1. K-1 is for fiancé, K-3 they don't really do anymore and IR-1 if for people married over 2 years.

Follow the Guide for Cr-1 it shows everything you need in your package. It takes about a year

Here: http://www.visajourney.com/content/i130guide1

Edited February 6, 2016 by Georgia16

[Not_me123 0]

He can't really do anything himself. But if my family offers to joint sponsor with me to start a visa process as means to support us and get the ball rolling, is it really a sign of his intent? Since he can't decide that? If they want to help him stay sooner and apply for the I-130 while he's visiting it seems acceptable that he can change his status. They just want to help out before their get a divorce or worry about retiring because they really like their son-in-law. How can it be proved that there's any intent to apply beforehand if it's not his choice or ability to do so? If he's just visiting and his family invites him to stay and financially support him to start a life in the USA, it's not fraud or planned. Unless the document was filed the week he arrived, or before he arrived.

There's too many details just open to interpretation.

[Transborderwife 4,666]

If he's not here it's fraud end of story

[Pitaya 2,577]

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PItaya

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