Marry and adjust status from VWP

[HRQX 4,145]

3 minutes ago, Sinead91 said:

but I haven’t read about anyone (since March 2020 who had their interview). 

Here is someone that adjusted from VWP and had interview last month:

Her I-485 was approved: https://www.visajourney.com/timeline/profile.php?id=339048

[Sinead91 243]

2 minutes ago, HRQX said:

Here is someone that adjusted from VWP and had interview last month:

Her I-485 was approved: https://www.visajourney.com/timeline/profile.php?id=339048

Missed that thanks!

[yuna628 9,547]

23 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?

The attorney is silly.

You can certainly marry and adjust under your circumstances. However, what you do need to consider is that... well remember how long you've been waiting on that K1? You're going to wait a very long time for the adjustment too and the EAD/AP if you apply for it. Your fiance will have to remain with you in the US and not leave until they have an EAD/AP. If you are financially stable for this waiting period then good. An additional problem that could arise is that the fiance cannot get an SSN until they have the EAD (whereas a K1 visa holder could get an SSN before that period). Rest assured you could add your new spouse to any health insurance without the SSN by law, but companies can give you quite a hassle about it.

[lunisolar 1]

1 hour ago, yuna628 said:

Your fiance will have to remain with you in the US and not leave until they have an EAD/AP. If you are financially stable for this waiting period then good. An additional problem that could arise is that the fiance cannot get an SSN until they have the EAD (whereas a K1 visa holder could get an SSN before that period). Rest assured you could add your new spouse to any health insurance without the SSN by law, but companies can give you quite a hassle about it.

Right, no problem at all with any of that. I actually already checked with my employer and they said it wouldn't be a problem to add a spouse without an SSN.

 

Additional update, I called another immigration attorney who echoed everyone here that the original attorney was full of it and there is no problem whatsoever with what we have planned. She said that we have sufficient evidence that there was no immigrant intent at the time of entry and therefore we should be fine.

[JFH 12,189]

4 hours ago, John Lavey said:

Right, no problem at all with any of that. I actually already checked with my employer and they said it wouldn't be a problem to add a spouse without an SSN.

 

Additional update, I called another immigration attorney who echoed everyone here that the original attorney was full of it and there is no problem whatsoever with what we have planned. She said that we have sufficient evidence that there was no immigrant intent at the time of entry and therefore we should be fine.

You really don’t need to worry about intent. CBP officers at the airports and borders have one job: stop anyone whose intentions are not genuine from entering the USA. That’s it. If she was admitted successfully then no intent was found or even suspected. Plans change. Now more than ever. What you are doing is perfectly legal and is exactly the kind of situation that the adjustment process was designed for. 

[Ryan H 3,797]

***Hijack post and replies to said post removed.***

[Rentybs 0]

On 2/1/2021 at 8:32 AM, retheem said:

Marry and do AOS. You will be fine.

I found this online, can someone explain please?

 

If your fiancé(e) has already filed an I-129F petition on your behalf, things get more complicated. An I-129F petition provides clear evidence that you intend to come to the United States and remain permanently, which contradicts the intent of a temporary visa. That means that USCIS or CBP officials are likely to carefully scrutinize your situation before allowing you to enter the United States on a temporary visa.

[HRQX 4,145]

3 hours ago, Renuka said:

I found this online, can someone explain please?

The part that says "USCIS ... officials" is misinformation from Boundless.com

 

For Immediate Relatives (as defined by the INA) intent is determined at entry, not at the AOS interview. See Matter of Battista and Matter of Cavazos.

 

The part about CBP allowing entry is true, though. Each visitor must overcome the INA 214(b) presumption of immigrant intent. But many still visit while going through the K-1 process:

 

Edited February 14, 2021 by HRQX

[Rentybs 0]

9 hours ago, HRQX said:

The part that says "USCIS ... officials" is misinformation from Boundless.com

 

For Immediate Relatives (as defined by the INA) intent is determined at entry, not at the AOS interview. See Matter of Battista and Matter of Cavazos.

 

The part about CBP allowing entry is true, though. Each visitor must overcome the INA 214(b) presumption of immigrant intent. But many still visit while going through the K-1 process:

 

Thank you, that's really good to know!

[Ryan H 3,797]

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