Marry and adjust status from VWP

[lunisolar 1]

Hi all,

 

I'm looking to get your opinions on marrying and adjusting status directly from VWP/ESTA. My fiancee and I filed our I-192f in December 2019, and the last update we got was NOA2 in April 2020. Much like many other members here our case has been sitting at the NVC since then waiting for the embassy in London to resume routine visa services. In November 2020 we decided to go the third country route to circumvent the presidential proclamation, and she has been with me in the US on VWP since then. Her current authorized stay expires on the 3rd of Feb.

 

With all the uncertainty around when routine processing will resume, we are considering just marrying while she is here and filing forms I-130 and I-485 (along with everything else needed) to adjust status directly. Having seen numerous other threads on this topic here, I decided to call an immigration attorney to get her opinion on going this path. She advised that doing this was a "violation of the underlying visa" and would almost certainly result in a lengthy investigation period during which we would not receive EAD/AP nor would there be any movement on our AOS case until this was completed.

 

I found this quite surprising as the general commentary on this forum seemed to be that marrying and AOSing from VWP was generally an OK thing to do. I'm not sure why it would be a violation of the Visa Waiver Program, either, as we genuinely had no immigrant intent when my fiancee entered the country and only recently began considering this due to changing circumstances. I know we're not immigration lawyers here (or at least not most of us), but what are your opinions on abandoning the K-1 and going this route? Have you heard of anyone who tried this ending up under investigation like the attorney I called indicated?

[Crazy Cat 41,208]

10 minutes ago, John Lavey said:

She advised that doing this was a "violation of the underlying visa" and would almost certainly result in a lengthy investigation period during which we would not receive EAD/AP nor would there be any movement on our AOS case until this was completed.

That is baloney if you are a US citizen.  Adjusting from ESTA/VWP is not prohibited for immediate relatives of US citizens.

Edited January 31, 2021 by Lucky Cat

[Crazy Cat 41,208]

It is illegal to enter the US via ESTA/VWP with the intent to stay and adjust status.  If that was not the case, there will be no issue and no long investigation.

Edited January 31, 2021 by Lucky Cat

[lunisolar 1]

12 minutes ago, Lucky Cat said:

That is baloney if you are a US citizen.  Adjusting from ESTA/VWP is not prohibited for immediate relatives of US citizens.

 

2 minutes ago, Lucky Cat said:

It is illegal to enter the US via ESTA/VWP with the intent to stay and adjust status.  If that was not the case, there will be no issue and no long investigation.

Thank you for your replies. I am indeed a USC and we only recently began considering adjusting status as the lockdowns and travel bans seem to be strengthening rather than weakening.

 

The only other issue would be timing - given that she only has 3 days of authorized stay remaining it may be difficult to file the AOS forms in time, and my understanding is that she would be an overstayer until the AOS petition is filed. I understand that overstays are forgiven for relatives of USCs, but obviously we'd like to avoid that exposure if possible. Perhaps requesting satisfactory departure from USCIS would be an option?

[Crazy Cat 41,208]

5 minutes ago, John Lavey said:

Perhaps requesting satisfactory departure from USCIS would be an option?

You can request that if you wish.......but I would marry and file for adjustment as soon as possible.  Once she files a proper I-485, she will be granted authorized stay in the US until the case is adjudicated. 

[HRQX 4,145]

19 minutes ago, John Lavey said:

I understand that overstays are forgiven for relatives of USCs

That is correct.

"when he got to the question about if you ever violated terms and conditions of your immigration status he just said “and you overstayed your esta?” I said yes and he moved on..." I.e. it's not an issue.

42 minutes ago, John Lavey said:

Have you heard of anyone who tried this ending up under investigation like the attorney I called indicated?

No, the attorney provided misinformation. See Matter of Battista and Matter of Cavazos. For Immediate Relatives (as defined by the INA) intent is determined at entry, not at the AOS interview.

[lunisolar 1]

21 minutes ago, HRQX said:

See Matter of Battista and Matter of Cavazos.

Thank you for these sources, very good to know that this shouldn't be an issue.

[Wuozopo 4,291]

5 hours ago, John Lavey said:

I know we're not immigration lawyers here (or at least not most of us), but what are your opinions on abandoning the K-1 and going this route? Have you heard of anyone who tried this ending up under investigation like the attorney I called indicated?

People do that successfully and are never quizzed about it at their interview. Should your AOS be denied, then you can not appeal because entering on VWP waives your right to any kind of appeal. IF you are a fraudulent couple pulling a greencard scam with a fake marriage, then you could get denied. If you are a legit couple then there should be no reason to deny your AOS.

[Ryan H 3,810]

Moved from K1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[lunisolar 1]

@Lucky Cat, one more question if you don't mind: if we decide to adjust status, should we include evidence that our immigrant intent was established after entry with our AOS filing? Or should this be saved for the interview?

[Crazy Cat 41,208]

2 minutes ago, John Lavey said:

@Lucky Cat, one more question if you don't mind: if we decide to adjust status, should we include evidence that our immigrant intent was established after entry with our AOS filing? Or should this be saved for the interview?

No, I wouldn't.   

[Sinead91 246]

Hey OP, I had the same question as you back in March of last year. I had my noa2 of k1(since withdrawn), and following advice here, stayed and adjusted. By the time I filed and received my noa1 I was two months out of status (it took a month to cash my cheque because of backlog at the time). Nothing happened only I was paranoid for no reason. 
 

I have my green card interview on the 22nd of Feb (noa1 august 3rd). If you have any questions, this forum is the place ❤️

[retheem 562]

8 hours ago, John Lavey said:

Hi all,

 

I'm looking to get your opinions on marrying and adjusting status directly from VWP/ESTA. My fiancee and I filed our I-192f in December 2019, and the last update we got was NOA2 in April 2020. Much like many other members here our case has been sitting at the NVC since then waiting for the embassy in London to resume routine visa services. In November 2020 we decided to go the third country route to circumvent the presidential proclamation, and she has been with me in the US on VWP since then. Her current authorized stay expires on the 3rd of Feb.

 

With all the uncertainty around when routine processing will resume, we are considering just marrying while she is here and filing forms I-130 and I-485 (along with everything else needed) to adjust status directly. Having seen numerous other threads on this topic here, I decided to call an immigration attorney to get her opinion on going this path. She advised that doing this was a "violation of the underlying visa" and would almost certainly result in a lengthy investigation period during which we would not receive EAD/AP nor would there be any movement on our AOS case until this was completed.

 

I found this quite surprising as the general commentary on this forum seemed to be that marrying and AOSing from VWP was generally an OK thing to do. I'm not sure why it would be a violation of the Visa Waiver Program, either, as we genuinely had no immigrant intent when my fiancee entered the country and only recently began considering this due to changing circumstances. I know we're not immigration lawyers here (or at least not most of us), but what are your opinions on abandoning the K-1 and going this route? Have you heard of anyone who tried this ending up under investigation like the attorney I called indicated?

Marry and do AOS. You will be fine.

[lunisolar 1]

@Sinead91, so glad to hear this has worked out well for you so far! I know you haven't had the interview yet, but did you get any questions with your AOS application regarding having immigrant intent when you entered on ESTA? If so what evidence did you provide to the contrary?

[Sinead91 246]

13 minutes ago, John Lavey said:

@Sinead91, so glad to hear this has worked out well for you so far! I know you haven't had the interview yet, but did you get any questions with your AOS application regarding having immigrant intent when you entered on ESTA? If so what evidence did you provide to the contrary?

I did submit a copy of my noa2 and a signed letter from both of us with a brief explanation of why, because we had a previous petition and didn’t want to withhold that. 
 

intent is decided at the border when you enter the US, so once she wasn’t called for secondary questioning, Border patrol had no reason to suspect intent. If they had, she wouldn’t have been allowed to enter so don’t worry. In short, you don’t need to provide info on intent. But keep what she has in case, like I have work stubs, emails from my boss, my travel insurance and my return flight (which I will take to my interview at the end of the month)
 

worrying is absolutely normal and it took me almost 6 weeks to make a decision (wish I had done it sooner)

 

I will 100% update on the forum when I finish it because many have done the same due to covid but I haven’t read about anyone (since March 2020 who had their interview).