Adjustment of Status from VWP

[ValentinB 1]

Hi !

 

I am French and my wife is American.

I am in the US through the Visa Waiver Program (VWP / ESTA). This touristic "visa" allows me to stay in the US for 90 days.

More and more I am thinking about staying in the U.S.

I believe that I can adjust my status and become a US resident.

 

Here are the infos that I found:

1. I can adjust status by filing I-485

2. My AOS package should include:

• I-485 filed by myself
• I-944 filed by myself
• I-765 filed by myself
• I-864 filed by my wife for me
• I-130 filed by my wife for me
• Evidences of everything

3. You are inadmissible for AOS if adjusting from the Visa Waiver Program EXCEPT IF you are a relative of a U.S. Citizen (such as spouse, which I am)

4. You can file for AOS even after the 90 days of your authorized period from the Visa Waiver Program IF you are a relative of a U.S. Citizen (such as spouse, which I am)

5. I can stay in the U.S. while waiting for my AOS approval, even if my current visa expires

6. If I add form I-765 to my package, I should receive a Work Authorization after around 140 days

7. My wife should make 125% of the Federal Poverty Guideline ($21.550/year for a married couple as a household)

 

I am sure that I am still missing a lot of infos, but here are my main concerns :

 

2. I saw somebody online saying that we need to file I-130 first, wait for approval, and then file I-485, is that true? 

7. We were living in France till now, my wife moved to France years ago, she never filed a tax return in the U.S. She just got a job here, making $30.000/year. Would 3 months paychecks, her work contract and $15.000 in savings be enough to file I-944, I-864, necessary for my adjustment of status?

 

I probably have more questions that I am not thinking about right now.

 

Thanks to everyone who will review what I listed and give me their thoughts about what we should do.

 

Have a nice day!

[Crazy Cat 39,192]

58 minutes ago, ValentinB said:

. I saw somebody online saying that we need to file I-130 first, wait for approval, and then file I-485, is that true? 

No!!!!!!   File all the forms in the package together.....only filing the I-485 will give you authorized stay (but not legal status) in the US once your I-94 expires.  Filing the I-130 alone gives you no protection.  I would file the package before the expiration of the I-94.

 

Your wife will have to either file any back taxes or explain why she wasn't required to file.

Edited March 23, 2020 by Lucky Cat

[Crazy Cat 39,192]

1 hour ago, ValentinB said:

6. If I add form I-765 to my package, I should receive a Work Authorization after around 140 days

You should absolutely file an I-131 in your package as well...remember, if you leave the US prior to receiving approved Advance Parole (I-131), it will be abandonment of the adjustment of status.

[SalishSea 16,746]

1 hour ago, ValentinB said:

I should receive a Work Authorization after around 140 days

Not sure where you got this from -  it is currently taking 5.5 - 7.5 months, per USCIS.gov.

[arken 4,197]

Don’t forget the i130A.

[ValentinB 1]

Hi!

 

Thank you @Lucky Cat for your answers! I will sure file an I-131 too then!

Thank you @Jorgedig! You are right, I don't know where I got that from 😆

Thank you @arken! Thank you, I will!

 

Do you guys have more info about the Affidavit of Support and if it is absolutely mandatory to have a tax return? Or if it could be fine showing the last 3/4 paychecks of my wife, her $30k/year contract and $15k in savings, and explaining the situation?

 

Thanks

[Crazy Cat 39,192]

1 minute ago, ValentinB said:

Do you guys have more info about the Affidavit of Support and if it is absolutely mandatory to have a tax return?

Yes,  tax documents are required.

[SalishSea 16,746]

Just now, ValentinB said:

Hi!

 

Thank you @Lucky Cat for your answers! I will sure file an I-131 too then!

Thank you @Jorgedig! You are right, I don't know where I got that from 😆

Thank you @arken! Thank you, I will!

 

Do you guys have more info about the Affidavit of Support and if it is absolutely mandatory to have a tax return? Or if it could be fine showing the last 3/4 paychecks of my wife, her $30k/year contract and $15k in savings, and explaining the situation?

 

Thanks

Was she working abroad?  Americans working abroad are still required to file federal tax returns.  She needs to get up to date on those.  

[geowrian 22,335]

1 hour ago, ValentinB said:

I am in the US through the Visa Waiver Program (VWP / ESTA). This touristic "visa" allows me to stay in the US for 90 days.

It's not a visa by definition.   It's a program granting admission as a visitor for certain purposes, similar (but not identical to) B-1/B-2 status.

 

Quote

3. You are inadmissible for AOS if adjusting from the Visa Waiver Program EXCEPT IF you are a relative of a U.S. Citizen (such as spouse, which I am)

Immediate relative. Not all relatives qualify.

Immediate relatives here actually only refers to the spouse, parent, or child (under 21 + unmarried), not siblings, grand[whatever], or extended family.

 

Quote

4. You can file for AOS even after the 90 days of your authorized period from the Visa Waiver Program IF you are a relative of a U.S. Citizen (such as spouse, which I am)

Yes, although nobody on this site is going to condone overstaying (it's against the TOS). File within the 90 days of your stay.

Note that even 1 day of overstay makes you permanently ineligible for the VWP in the future. So if something happens and you need to leave w/o AP, ever abandon you green card, etc., you would need a visa to return.

 

Quote

5. I can stay in the U.S. while waiting for my AOS approval, even if my current visa expires

Status* (you don't have a visa....or at the least, you did not use one to enter)

Yes, you have a period of authorized stay while your I-485 is pending.

 

Quote

6. If I add form I-765 to my package, I should receive a Work Authorization after around 140 days

Expect 5.5-7.5 months right now, although I do expect that to go up in the coming months due to the current situation (both in terms of less processing capabilities + likely a swarm of AOS + EAD applications).

 

Quote

7. My wife should make 125% of the Federal Poverty Guideline ($21.550/year for a married couple as a household)

Must* (or have suitable assets - 3:1 ratio - in lieu or combination of income). Under this - and without a suitable joint sponsor - cannot be granted permanent residency.

Above this is a discretionary decision based upon a totality of the circumstances. A good worksheet is here: https://www.uscis.gov/sites/default/files/policymanual/resources/Appendix-TotalityoftheCircumstancesFramework.pdf

 

Quote

2. I saw somebody online saying that we need to file I-130 first, wait for approval, and then file I-485, is that true? 

In your case, you can file concurrently. There are cases where this is possible and cases where it is not possible.

 

Quote

7. We were living in France till now, my wife moved to France years ago, she never filed a tax return in the U.S. She just got a job here, making $30.000/year. Would 3 months paychecks, her work contract and $15.000 in savings be enough to file I-944, I-864, necessary for my adjustment of status?

Was she earning income abroad? USCs and LPRs are required to file taxes based upon their worldwide income.

If she was required to file and did not, she must file for at least the 3 past years to qualify as an I-864 sponsor (and she must be one even if there is a joint sponsor). Prior years are required by the IRS as well.

If she had no income or income below the filing threshold, she can mark the appropriate box on the I-864 and state that she had no income/income below the threshold (+ evidence). The income threshold to file is the same regardless of where you live.

She may be able to use the 2555/2555EZ for the FEIE to mitigate any tax liability on that foreign income.

 

Hopefully she has been filing her FBARs as well, as applicable. Not an immigration thing, but it can have some pretty hefty fines.

Edited March 23, 2020 by geowrian

[Boiler 43,397]

2 separate requirements for a sponsor

 

Taxes have been filed

Currently meet the sponsorship financial requirements.

[Crazy Cat 39,192]

[Suze1 366]

9 hours ago, ValentinB said:

We were living in France till now, my wife moved to France years ago, she never filed a tax return in the U.S. She just got a job here, making $30.000/year.

Maybe I missed something here.

Is her current income from work performed while living in France?

If so, how can that be used to sponsor someone?

Such income will have to continue from the same source once she back is in the US, or she will need a US-based source of income or a joint sponsor?

 

[geowrian 22,335]

12 minutes ago, Suze1 said:

Maybe I missed something here.

Is her current income from work performed while living in France?

If so, how can that be used to sponsor someone?

Such income will have to continue from the same source once she back is in the US, or she will need a US-based source of income or a joint sponsor?

"We were living in France till now"

"She just got a job here, making $30.000/year."

Since this is an AOS case, here = in the US. So she is working in the US now. Ergo, the income is US-based already.

[Marta Lle 0]

Valentin did you run into any problems that questioned your intent when entering the country? Did you have to provide any evidence of not having intention to immigrate?

[hlynnf23 16]

On 7/19/2021 at 8:13 PM, Marta Lle said:

Valentin did you run into any problems that questioned your intent when entering the country? Did you have to provide any evidence of not having intention to immigrate?

I am not the OP, but we just went through AOS from VWP and we also had a K1 pending. Our interview was yesterday and we were approved on the spot. Intent was not even brought up at the interview. The only questions we were asked was “How did you meet?” And then the IO went over everything from the I-130 and I485. He mentioned that the I-129F in our paperwork confused him at first, but we just state that COVID changed our plans and he understood that.