AOS on ESTA

[Shockboxx 8]

Hi all, 

Was searching this forum all day to find something similar to my situation but failed. Trying to make this short.

Back in June 2018 I entered the US with my ESTA to see my GF for 5 weeks (been together long-distance for 18 months by that time). We decided to get married at the end of my trip and 3 days after that I left the United States as I was still bound to the German military and had to get back to work.

We hadn’t decided yet if we would move to Germany or settle in the US. But we decided to create our own „Homebase“ and rent a place. So whenever my work would let me, I came over to the US to see my now wife, helped her signing the lease (we are both on it) and moved in. We have been living this life for three years now, with us traveling back and forth whenever we could.

At some point (14 months before my contract with the military ended) she told me that she doesn’t want to relocate to Germany as she is not ready to give up her work/family/friends etc. which I totally understand and I didn’t really care where to start over after my discharge. 

My wife is a US-Citizen so she filed a I-130 petition in April 2020 for the consular processing. It got approved and forwarded to NVC some time later in 2020. We got our logins and I started gathering the documents. At some point  (early 2021) we noticed that our Visa Class is categorized as F21 instead of CR-1/IR-1.

We emailed NVC several times but no answer on that (by July 2021).

And now (entered the US in June and my flight to my home country is August 5th)

that I am back „home“ for our three-year-anniversary she is telling me to file for AOS as 

we had a pretty tough discussion about „I don’t want to wait any longer to have my husband over here and I have been waiting for three years“. I refuse to do so because I want to do it the right way, but I am willed to give in for the sake of this marriage without putting everything in jeopardy. Just trying to get some more information as the majority in this Forum is getting married with ESTA/VWP and do AOS after that.

Citizenpath says it is possible to switch from consular to AOS in their FAQs at the bottom.

https://citizenpath.com/adjustment-status-vs-consular-processing/

(please edit if I am not supposed to post links) 

 

The mind-boggling thing is the mentioned 90-day rule. Does it affect me as we have been married for three years now? Some say it does, some say it doesn’t. Some say there is no 90 day rule, some say there is. 
Should I go and look for a immigration lawyer in my case?

Maybe some of you know more and advice would be appreciated. 

Thank you

[JeanneAdil 6,201]

confusin'  at some points 

say you came to visit gf (my ESTA to see my GF )

and alter married and now you say ( „I don’t want to wait any longer to have my husband over here)

 

no 90 day rule for u / that is a K1 rule to marry within 90 days of coming to US

you are married

don't need a lawyer / the VJ community will point you in right direction but from my opinion only,  your CR1 will open faster than starting a  new process

[Crazy Cat 39,256]

24 minutes ago, Shockboxx said:

Hi all, 

Was searching this forum all day to find something similar to my situation but failed. Trying to make this short.

Back in June 2018 I entered the US with my ESTA to see my GF for 5 weeks (been together long-distance for 18 months by that time). We decided to get married at the end of my trip and 3 days after that I left the United States as I was still bound to the German military and had to get back to work.

We hadn’t decided yet if we would move to Germany or settle in the US. But we decided to create our own „Homebase“ and rent a place. So whenever my work would let me, I came over to the US to see my now wife, helped her signing the lease (we are both on it) and moved in. We have been living this life for three years now, with us traveling back and forth whenever we could.

At some point (14 months before my contract with the military ended) she told me that she doesn’t want to relocate to Germany as she is not ready to give up her work/family/friends etc. which I totally understand and I didn’t really care where to start over after my discharge. 

My wife is a US-Citizen so she filed a I-130 petition in April 2020 for the consular processing. It got approved and forwarded to NVC some time later in 2020. We got our logins and I started gathering the documents. At some point  (early 2021) we noticed that our Visa Class is categorized as F21 instead of CR-1/IR-1.

We emailed NVC several times but no answer on that (by July 2021).

And now (entered the US in June and my flight to my home country is August 5th)

that I am back „home“ for our three-year-anniversary she is telling me to file for AOS as 

we had a pretty tough discussion about „I don’t want to wait any longer to have my husband over here and I have been waiting for three years“. I refuse to do so because I want to do it the right way, but I am willed to give in for the sake of this marriage without putting everything in jeopardy. Just trying to get some more information as the majority in this Forum is getting married with ESTA/VWP and do AOS after that.

Citizenpath says it is possible to switch from consular to AOS in their FAQs at the bottom.

https://citizenpath.com/adjustment-status-vs-consular-processing/

(please edit if I am not supposed to post links) 

 

The mind-boggling thing is the mentioned 90-day rule. Does it affect me as we have been married for three years now? Some say it does, some say it doesn’t. Some say there is no 90 day rule, some say there is. 
Should I go and look for a immigration lawyer in my case?

Maybe some of you know more and advice would be appreciated. 

Thank you

Your situation is not unique.  There is no 90 rule for USCIS.  The foreign spouse can legally adjust status if he/she is currently in the US.  Send the approval notice for the I-130 along with the I-485 package. Follow this guide:

 

Edited July 3, 2021 by Lucky Cat

[Crazy Cat 39,256]

I would file the I-485 package before the current I-94 expires.  Once a proper I-485 is filed the applicant is granted authorized stay until the adjustment is either approved or denied.

[Crazy Cat 39,256]

Be aware that the I-485 applicant cannot work or leave the US for roughly 6-8 months after filing.

[Shockboxx 8]

10 minutes ago, Lucky Cat said:

Your situation is not unique.  There is no 90 rule for USCIS.  The foreign spouse can legally adjust status if he/she is currently in the US.  Send the approval notice for the I-130 along with the I-485 package. Follow this guide:

 

Ok thanks a lot for the quick answer.

[Shockboxx 8]

4 minutes ago, Lucky Cat said:

Be aware that the I-485 applicant cannot work or leave the US for roughly 6-8 months after filing.

Thank you for the heads-up. Not working is not an issue as i still get my paychecks, and not leaving is also not an issue as I don't have to be back. 
 

My concern was the legal part of filing for AOS while on a visit, as I am not really in the mood for getting accused of immigration fraud and put everything in jeopardy by filing for AOS. I‘d rather fly back home and wait knowing the fact my wife wouldn’t fall in love with that decision. 

[Crazy Cat 39,256]

1 minute ago, Shockboxx said:

Thank you for the heads-up. Not working is not an issue as i still get my paychecks, and not leaving is also not an issue as I don't have to be back. 
 

My concern was the legal part of filing for AOS while on a visit, as I am not really in the mood for getting accused of immigration fraud and put everything in jeopardy by filing for AOS. I‘d rather fly back home and wait knowing the fact my wife wouldn’t fall in love with that decision. 

It is illegal to enter the US via ESTA with the intent to stay and adjust status.  Intent is established at the time of entry into the US......not 90 days after entry and not during an Adjustment of Status interview.  Unless you misrepresented yourself at the time of entry, there is no issue.  Good luck.  

[Villanelle 4,121]

You posted this on another site right? The only bit that is different is a mention of seeing a F21 notation instead of CR/IR. F21 is spouse of an LPR. You need to get that corrected regardless if you do AOS or consular processing.

 

Just an FYI to users here- the OP was told on the other site that he should not do AOS. Words were used like 'risky', 'not worth it' 'already showed intent by filing the 130' etc - hence his asking here. One comment did explain there is no 90 day rule but the majority opinion was discouraging him from filing AOS. 

 

Now I know most of us are tired of responding to the old can I AOS from ESTA question as its been asked and answered a million times over but in this case the OP is asking for confirmation as he was given bad advice elsewhere and is still unsure. Anyone who takes the time to contribute with the correct answer is much appreciated. 

 

----

 

Intent is established by CBP when they let you in. Furthermore USCIS can not deny AOS for immigrant intent when it's a spouse of a US citizen unless USCIS can prove that you lied to enter the US. Did you lie when you entered? If no you are allowed to file AOS and be approved. Its that simple. 

 

 

 

[Crazy Cat 39,256]

*****This discussion has now been moved to Adjustment of Status From Work, Student & Tourist Visas*****

[Shockboxx 8]

2 minutes ago, Villanelle said:

Now I know most of us are tired of responding to the old can I AOS from ESTA question as its been asked and answered a million times over but in this case the OP is asking for confirmation as he was given bad advice elsewhere and is still unsure. Anyone who takes the time to contribute with the correct answer is much appreciated. 

Thank you for that

 

3 minutes ago, Villanelle said:

Intent is established by CBP when they let you in. Furthermore USCIS can not deny AOS for immigrant intent when it's a spouse of a US citizen unless USCIS can prove that you lied to enter the US. Did you lie when you entered? If no you are allowed to file AOS and be approved. Its that simple. 

 

No I did not lie to the CBP officer. That is the last person I would mess around with. ESTA/VWP is a privilege not a given right.

 

He asked me „why are you visiting“

I told him „to see my wife as it is our 3 year anniversary this weekend“

As the travel ban is still active I offered him supporting documents like „Marriage Cerificate“ and proof of her citizenship

He then answered „NoNo I believe you, enjoy your stay“

[Crazy Cat 39,256]

Just now, Shockboxx said:

He then answered „NoNo I believe you, enjoy your stay“

At that moment, your legal intent was established......... I see no issue with adjusting status.  Good luck........practice patience.  You will need it......☺️

[Shockboxx 8]

1 minute ago, Lucky Cat said:

At that moment, your legal intent was established......... I see no issue with adjusting status.  Good luck........practice patience.  You will need it......☺️

Thanks a lot 😊 I will keep this forum updated with my timeline. And wifey will be happy too. Happy wife, happy life. I guess there is truth in that. 

[Matthew Dodds 6]

I feel that if you really and truly become stuck In your situation, seek a worthy and trustworthy immigration attorney to assist you with advice and along your journey to AOS. 

 

After all, this is just my opinion,  you have the final choice.

 

Best of luck.

[Mike E 11,723]

23 hours ago, Shockboxx said:

Hi all, 

Was searching this forum all day to find something similar to my situation but failed.

Entering this query into Google,

 

90 day rule site:visajourney.com 
 

found many relevant hits, leading with:

 

  

 

So your post was familiar.   I see you posted in Reddit 12 days ago.  The  responses were mostly doomers with wrong answers.  Good of you post here.  
 

You have plenty of time to file your AOS before your authorized stay expires.  Focus on that.  That is your new job now.  
 

Ignore any advice on VJ or Reddit or elsewhere that says it is ok to file AOS after your authorized stay expires.  It doesn’t matter if USCIS forgives it.  ICE doesn’t.