NOA2 to AOS

[Tempuser99999 0]

Hello.

This is my first post on this forum so I apologize about any mistakes.

I'm a little confused about our options so I'll cut to the chase with my questions.

 

USC (me)

VWP country citizen (wife) 

Dual citizenship (our two kids)

Married long enough for my spouse to qualify for IR1

 

I-130 application

NOA1 received in December 2019

Wife and kids visited me in the US in December 2019 without issue. 

They have been living abroad since I-130 was submitted.

 

NOA2 received in May 2020 

Wife and kids would like to visit me in July 2020.  Assuming that my wife would come in under a tourist visa, have a return ticket home and already be ESTA approved before our I-130 application submission:

• Can my wife legally apply for AOS while in the US?  Can this be done ONLY when she is physically in the US?
• How could she legally stay longer than her 3 month tourist visa limit?
• Would coming here under a tourist visa and then apply for AOS be fraud?  
• Could CBP think she may never finish the I-130 process and deny her entry?
• Can she stay here and go back to her country for the Consulate interview or change her interview location stateside?
• If she needs to prove to CBP, that she would go back (if AOS is not possible) what would she need?  We still own a house in that country and she's still working.

 

Thanks!

Edited May 13, 2020 by Tempuser99999

[payxibka 10,045]

2 minutes ago, Tempuser99999 said:

Hello.

This is my first post on this forum so I apologize about any mistakes.

I'm a little confused about our options so I'll cut to the chase with my questions.

 

USC (me)

VWP country citizen (wife) 

Dual citizenship (our two kids)

Married long enough for my spouse to qualify for IR1

 

I-130 application

NOA1 received in December 2019

Wife and kids visited me in the US in December 2019 without issue. 

They have been living abroad since I-130 was submitted.

 

NOA2 received in May 2020 

Wife and kids would like to visit me in July 2020.  Assuming that my wife would come in under a tourist visa, have a return ticket home and already be ESTA approved before our I-130 application submission:

• Can my wife legally apply for AOS while in the US?  Can this be done ONLY when she is physically in the US?
• How could she legally stay longer than her 3 month tourist visa limit?
• Would coming here under a tourist visa and then apply for AOS be fraud?  
• Could CBP think she may never finish the I-130 process and deny her entry?
• Can she stay here and go back to her country for the Consulate interview or change her interview location stateside?
• If she needs to prove to CBP, that she would go back (if AOS is not possible) what would she need?  We still own a house in that country and she's still working.

 

Thanks!

1.  No

2.  She can't 

3.  Yes

4.  Possible 

5.  No visa interviews are ever stateside 

[Tempuser99999 0]

15 minutes ago, payxibka said:

1.  No

2.  She can't 

3.  Yes

4.  Possible 

5.  No visa interviews are ever stateside 

So basically her only option is to stay abroad until the process is finished?

[payxibka 10,045]

17 minutes ago, Tempuser99999 said:

So basically her only option is to stay abroad until the process is finished?

Based on your current facts and circumstances.  She can visit and return home but she will be subject to normal entry requirements.   

[Tempuser99999 0]

17 minutes ago, payxibka said:

Based on your current facts and circumstances.  She can visit and return home but she will be subject to normal entry requirements.   

From what I am reading entrants who are are legally admitted under VWP (which is legal) and are immediate relatives, can apply for AOS.

I also read, that foreigners living abroad needs to go thru consular processing and are ineligible for AOS.  I would assume if she was here on like a student visa, then yes she could adjust.

I am finding conflicting answers. 

Does anyone have any examples such as government links (not in legalese) that would clarify this? 

[payxibka 10,045]

1 minute ago, Tempuser99999 said:

From what I am reading entrants who are are legally admitted under VWP (which is legal) and are immediate relatives, can apply for AOS.

I also read, that foreigners living abroad needs to go thru consular processing and are ineligible for AOS.  I would assume if she was here on like a student visa, then yes she could adjust.

I am finding conflicting answers. 

Does anyone have any examples such as government links (not in legalese) that would clarify this? 

The issue is using a nonimmigrant entry with a preconceived plan to circumvent the immigration process.   

 

Why don't you visit the appropriate AOS forum.  You will read about lots of people who went about it the proper way

[Ryan H 3,812]

***Under the below quoted provision of the TOS, this thread is closed to additional discussion and is not to be restarted or referred to in future discussions.***

 

By way of example, and not as a limitation, you agree that when using the Service, you will not:

• Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method.