How long to wait to file AOS after marriage on ESTA? (merged)

[dusty_jewels 6]

Hi guys! I've been on this site for a month, getting myself acquainted with everything marriage-based green card.

 

I'm freaking out a little as I came here on an ESTA on the 31st of July without intent to immigrate, even tried to give the immigration guy proof that I will be going back home (he refused to see them, he just let me in with a warning because I came into the US in early April and left mid May.).

 

My now husband is a US citizen, and we intended to marry and start the green card journey after I leave. But after we married (on 22nd of August), I decided to take a risk and do AOS + green card instead.

 

We've been separated for 16 months due to COVID. I really want to start our lives together and my country wants me to do a $2k 14-day quarantine when I return.

 

I have done a ton of research, including getting the opinions of 3 immigration lawyers.

 

However I feel like this forum has real-time data and would love to hear from you all.

 

So questions:

 

1.  I've been getting mixed opinions on whether I should wait 90 days to start filing. Some people say file before my ESTA expires. The lawyers say to file after. Which do you recommend?
2. Also, is the 90-day rule no longer even in place? Apparently, a July 16th 2021 update to the USCIS Policy Manual Volume 8 Part J Chapter 3 - Adjudicating Inadmissibility, says "Technical Update - Removing References to the U.S. Department of State’s 90-Day Rule."
3. Is doing this really OK? Like so many others, I do fear getting barred from the country with the ESTA overstay and being accused of visa fraud with immigration intent.
   The last lawyer I consulted warned me, "Please note that the presumption that you were not truthful is created by any inconsistent act inconsistent to a nonimmigrant intent. I continue to see denials based on this 90 day rule except in the rare situations where the applicant had a sudden and unpredictable change in circumstances such as health issues or military deployment."
   But there are lots of success stories here, so.

 

Thoughts, advice? Thank you!

[Boiler 45,670]

6 minutes ago, dusty_jewels said:

The last lawyer I consulted warned me, "Please note that the presumption that you were not truthful is created by any inconsistent act inconsistent to a nonimmigrant intent. I continue to see denials based on this 90 day rule except in the rare situations where the applicant had a sudden and unpredictable change in circumstances such as health issues or military deployment."

Wonder why that Lawyer sees all these denials when we see none?

[edsperfect 25]

I HAVE limited knowledge but i beieve if her on an esta only immidiate family can file for aol

[JeanneAdil 6,561]

File, when u have the marriage certificate 

not sure why anyone would say wait

keep that proof that you intended to return home and be able to show the proof of the new quarantine and $2k to do it

[Crazy Cat 41,981]

41 minutes ago, dusty_jewels said:

Hi guys! I've been on this site for a month, getting myself acquainted with everything marriage-based green card.

 

I'm freaking out a little as I came here on an ESTA on the 31st of July without intent to immigrate, even tried to give the immigration guy proof that I will be going back home (he refused to see them, he just let me in with a warning because I came into the US in early April and left mid May.).

 

My now husband is a US citizen, and we intended to marry and start the green card journey after I leave. But after we married (on 22nd of August), I decided to take a risk and do AOS + green card instead.

 

We've been separated for 16 months due to COVID. I really want to start our lives together and my country wants me to do a $2k 14-day quarantine when I return.

 

I have done a ton of research, including getting the opinions of 3 immigration lawyers.

 

However I feel like this forum has real-time data and would love to hear from you all.

 

So questions:

 

1.  I've been getting mixed opinions on whether I should wait 90 days to start filing. Some people say file before my ESTA expires. The lawyers say to file after. Which do you recommend?
2. Also, is the 90-day rule no longer even in place? Apparently, a July 16th 2021 update to the USCIS Policy Manual Volume 8 Part J Chapter 3 - Adjudicating Inadmissibility, says "Technical Update - Removing References to the U.S. Department of State’s 90-Day Rule."
3. Is doing this really OK? Like so many others, I do fear getting barred from the country with the ESTA overstay and being accused of visa fraud with immigration intent.
   The last lawyer I consulted warned me, "Please note that the presumption that you were not truthful is created by any inconsistent act inconsistent to a nonimmigrant intent. I continue to see denials based on this 90 day rule except in the rare situations where the applicant had a sudden and unpredictable change in circumstances such as health issues or military deployment."
   But there are lots of success stories here, so.

 

Thoughts, advice? Thank you!

If you are currently inside the US, you can legally adjust status immediately after marriage.  THERE IS NO RISK>  THERE IS NO 90 DAY RULE.  

The issue will not even be discussed during your adjustment of status interview unless you lied and misrepresented yourself when you entered via ESTA.  Just follow this guide.

ABOVE all, THERE IS NO REASON TO FREAK OUT!!   Good luck.....Just remember the travel and work restrictions associated with adjustment of status.

 

Edited August 31, 2021 by Crazy Cat

[dusty_jewels 6]

 

34 minutes ago, Boiler said:

Wonder why that Lawyer sees all these denials when we see none?

Exactly. Why am I paying them again? I figured that real-time data from actual people is you know... real information... so I came here and finally posted.

 

35 minutes ago, edsperfect said:

I HAVE limited knowledge but i beieve if her on an esta only immidiate family can file for aol

I am immediate family now. 😃 Or as my husband jokingly puts it, "his future ball and chain." 😆

 

18 minutes ago, JeanneAdil said:

File, when u have the marriage certificate 

not sure why anyone would say wait

keep that proof that you intended to return home and be able to show the proof of the new quarantine and $2k to do it

Thank you! I guess they don't want me to be subjected to the 90 day rule. There's actually no new quarantine, my country is Singapore and the $2k quarantine has always been there... I was hoping to wait it out for 6-7 months but nope. If you've heard of Singapore, we're pretty damn strict and we do everything by the book.

 

6 minutes ago, Crazy Cat said:

If you are currently inside the US, you can legally adjust status immediately after marriage.  THERE IS NO RISK>  THERE IS NO 90 DAY RULE.  

The issue will not even be discussed during your adjustment of status interview unless you lied and misrepresented yourself when you entered via ESTA.  Just follow this guide.

 

 

 

Thank you! Why are the lawyers all talking about the 90-day rule anyway?

 

They have it everywhere, the last lawyer even attached her practice advisory and said:

 

"Under the 30/60/90 day rule the there was a difference. USCIS is following the Dept of State foreign affairs manual. I am attaching the practice advisory issued by our American Immigration Lawyer's Assoc, explaining the rule in more detail."

 

[Crazy Cat 41,981]

2 minutes ago, dusty_jewels said:

Thank you! Why are the lawyers all talking about the 90-day rule anyway?

 

They have it everywhere, the last lawyer even attached her practice advisory and said:

 

"Under the 30/60/90 day rule the there was a difference. USCIS is following the Dept of State foreign affairs manual. I am attaching the practice advisory issued by our American Immigration Lawyer's Assoc, explaining the rule in more detail."

Ask that attorney to show you a single case where the adjustment of status was denied due to the "90 day rule"......We have NEVER seen one here, to my knowledge.  

[JeanneAdil 6,561]

only 90 day rule i ever heard of is the one that states  "must marry within 90 days of entering the US when coming on a K1 visa"

[dusty_jewels 6]

55 minutes ago, Crazy Cat said:

Ask that attorney to show you a single case where the adjustment of status was denied due to the "90 day rule"......We have NEVER seen one here, to my knowledge.  

That really helps, thank you. And I'm sure there are thousands of status-change hopefuls who use this site every day and have success.

 

Two questions:

 

1. So what DOES happen when one is denied AOS? What was the reason they got denied?
2. And what are the best chances to get approved on the spot during the interview? Have all the docs be correct?

 

Thank you! This helps a lot to not freak out about overstaying.

Edited August 31, 2021 by dusty_jewels

[Crazy Cat 41,981]

1 minute ago, dusty_jewels said:

That really helps, thank you. And I'm sure there are thousands of status-change hopefuls who use this site every day.

 

So what DOES happen when one is denied AOS? What happened?

Depends on the reason for denial.  Like I said, we have not seen a denial due to the so-called "90 day rule" during my time here on VJ...Many members have asked this same question when filing for adjustment of status after their plans had changed.  They most often come back and say "The officer never even mentioned it".  Of all the things to be concerned with during your adjustment, this is not one to worry about.   I would be more concerned with taking care of the loose ends in my home country after such a big change in plans.  

 

[JeanneAdil 6,561]

13 minutes ago, dusty_jewels said:

That really helps, thank you. And I'm sure there are thousands of status-change hopefuls who use this site every day and have success.

 

Two questions:

 

1. So what DOES happen when one is denied AOS? What was the reason they got denied?
2. And what are the best chances to get approved on the spot during the interview? Have all the docs be correct?

 

Thank you! This helps a lot to not freak out about overstaying.

would be inability to show bona fida marriage

not commingling fiances,  like iRS transcipts as married,   lease with both names,  no joint bank account ,  names of both on health care insurance, etc

usually not so much of a denial as it could trigger an RFE (request for evidence)  to produce this as evidence and prolong the AOS process

submit good evidence with the AOS, EAD and AP applications as you want this to be as quick as possible (and it is not fast)

you can't travel outside the US until AP (or receive green card)

and without permission to work,  its hard on the immigrant and boring

Edited August 31, 2021 by JeanneAdil

[Crazy Cat 41,981]

12 minutes ago, dusty_jewels said:

That really helps, thank you. And I'm sure there are thousands of status-change hopefuls who use this site every day and have success.

 

Two questions:

 

1. So what DOES happen when one is denied AOS? What was the reason they got denied?  I have never seen a case denied due to the "90 day rule".....it doesn't exist.
2. And what are the best chances to get approved on the spot during the interview? Have all the docs be correct?  Yes.....but it is very common for a review to be done after the interview.  It is normal.

 

Thank you! This helps a lot to not freak out about overstaying.

 

[dusty_jewels 6]

38 minutes ago, Crazy Cat said:

Depends on the reason for denial.  Like I said, we have not seen a denial due to the so-called "90 day rule" during my time here on VJ...Many members have asked this same question when filing for adjustment of status after their plans had changed.  They most often come back and say "The officer never even mentioned it".  Of all the things to be concerned with during your adjustment, this is not one to worry about.   I would be more concerned with taking care of the loose ends in my home country after such a big change in plans.  

 

Thank you very much! I saw someone get denied because they were the immediate relative of a green card holder, not a US citizen. Or that they didn't do up the documents correctly. I'll be enlisting the help of Simple Citizen for this, I rather not risk DIY-ing even though the guides are right there.

 

I guess they do tell you the real reason why they decided to ultimately decline you during or after the interview?

 

Thanks for highlighting the loose ends at home! I am the founder of an online company and my insurance covers anything overseas. No kids or pets so I think I'm quite set. I'm just concerned about not being able to go back home for Chinese New Year at the moment!

 

But seriously, thank you. This helps a lot.

 

37 minutes ago, JeanneAdil said:

would be inability to show bona fida marriage

not commingling fiances,  like iRS transcipts as married,   lease with both names,  no joint bank account ,  names of both on health care insurance, etc

usually not so much of a denial as it could trigger an RFE (request for evidence)  to produce this as evidence and prolong the AOS process

submit good evidence with the AOS, EAD and AP applications as you want this to be as quick as possible (and it is not fast)

you can't travel outside the US until AP (or receive green card)

and without permission to work,  its hard on the immigrant and boring

 

Got it! THANK YOU. This is very helpful.

 

The first immigration officer who grilled me for 1 hr in LAX told me that it's OK to continue working for myself as long as I don't suddenly have a surge of US clients. I'm very lucky and grateful to be financially independent and travel-flexible in this way, I feel for the ones who find it hard.

 

Again, thank you. It's really comforting vs what I've had from the lawyers, though two of them told me I should be fine, though to file after 90 days (I'm going to prepare the docs now though based on your encouragement).

 

It also helps a lot to talk it out here and double-check all my facts!

Edited August 31, 2021 by dusty_jewels

[JeanneAdil 6,561]

The serious problem immigration has for AOS on tourist visa is for high fraud countries that try this to bypass the system

you have an ESTA -not a high fraud country /they still do not want people to plan this but many do when caught up by circumstances - in this case Covid of which u have no control

 

As far as working now,    u are a married person in US applying for EAD to work here

and even without the EAD,  u r required now to pay US income taxes in the US as the work is here

not sure if u should be working now (seen different posts on this but u need EAD to work)

your husband should apply for the ITIN in the spring if you do not yet have your SS card 

follow IRS site for nonresident alien spouse as it also covers spouses living in the US without SS #

 

https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

Edited August 31, 2021 by JeanneAdil

[dusty_jewels 6]

30 minutes ago, JeanneAdil said:

The serious problem immigration has for AOS on tourist visa is for high fraud countries that try this to bypass the system

you have an ESTA -not a high fraud country /they still do not want people to plan this but many do when caught up by circumstances - in this case Covid of which u have no control

 

As far as working now,    u are a married person in US applying for EAD to work here

and even without the EAD,  u r required now to pay US income taxes in the US as the work is here

not sure if u should be working now (seen different posts on this but u need EAD to work)

your husband should apply for the ITIN in the spring if you do not yet have your SS card 

follow IRS site for nonresident alien spouse as it also covers spouses living in the US without SS #

 

https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

Yes, thank you, I'll definitely look into that. Right now I'm still on ESTA and the immigration officer told me that I'm allowed to work as per usual as my company is not a US-based company and many clients are not US-based. Apparently this is done all the time and CBP lets people in who state they are here for tourism but want to work remotely for a non-US company. I think it's a legal gray area that I'll need to clarify more on with an accountant or lawyer.

 

Thanks for the link! So many things to consider during this process!

Edited August 31, 2021 by dusty_jewels