Re-Entering USA on Visa Waiver After 5 Weeks - Advice?

[LN1Casey 14]

My husband stayed for 90 days, left for over a month, and came back and was detained at the airport for three hours because it was "suspicious." A good rule of thumb is that you should be out of the US as long as you were in it.

 

Now, for those who are saying just get married and stay here--DO NOT DO THIS.  You cannot stay here for an AOS for a ESTA (and man do I wish it wasn't, as I've spent months away from my husband because of that). That only pertains to other types of Visas, like a student visa or working visa.

[Boiler 43,582]

1 hour ago, LN1Casey said:

My husband stayed for 90 days, left for over a month, and came back and was detained at the airport for three hours because it was "suspicious." A good rule of thumb is that you should be out of the US as long as you were in it.

 

Now, for those who are saying just get married and stay here--DO NOT DO THIS.  You cannot stay here for an AOS for a ESTA (and man do I wish it wasn't, as I've spent months away from my husband because of that). That only pertains to other types of Visas, like a student visa or working visa.

I guess it is true you can not AOS from ESTA, but you certainly can from the VWP.

[SusieQQQ 11,584]

6 hours ago, Boiler said:

I guess it is true you can not AOS from ESTA, but you certainly can from the VWP.

Only for IR categories. 

[Mike E 11,723]

9 hours ago, LN1Casey said:

 

 

Now, for those who are saying just get married and stay here--DO NOT DO THIS.  You cannot stay here for an AOS for a ESTA (and man do I wish it wasn't, as I've spent months away from my husband because of that). That only pertains to other types of Visas, like a student visa or working visa.

An oldie but a goldie from VJ says you are wrong. 
 

I was actually surprised that once upon a time your comment was true for some field offices.  It is also true that those field offices were in violation of the law.  

Edited August 6, 2022 by Mike E

[SusieQQQ 11,584]

59 minutes ago, Mike E said:

An oldie but a goldie from VJ says you are wrong. 
 

I was actually surprised that once upon a time your comment was true for some field offices.  It is also true that those field offices were in violation of the law.  

The law does actually say you cannot adjust status from VWP. There just happens to be an exception to the law for IR cases. The extract you quoted there deals specifically with VWP overstays for IR, not the general principle of adjusting from VWP. From the actual uscis memo on the principle of adjusting from VWP: 

https://www.uscis.gov/sites/default/files/document/memos/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

 

INA section 245(c)(4) renders aliens admitted under the VWP ineligible to adjust status to that of a person admitted for permanent residence. This provision, however, includes an exception for immediate relatives of U.S. citizens.Thus, an individual admitted under the VWP who is also an immediate relative is not precluded from seeking adjustment of status, even after the VWP period has expired.

 

The last sentence in the paragraph deals with the overstay issue that you highlighted, but that is not the same as recognizing that the underlying principle is one of prohibition with limited exceptions (just like IR are exempt from other bases of AOS ineligibility that everyone else is subject to).
 

 

 

 

 

 

 

 

[LN1Casey 14]

I don't understand why people are saying I am wrong about the AOS regarding VWP.

 

From: https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html

 

Change of status:

"If you enter the United States under the Visa Waiver Program, you are not permitted to change status in the United States. See Change My Nonimmigrant Status on the U.S. Citizenship and Immigration Services (USCIS) website."

 

Extending your stay:

"If you enter the United States under the Visa Waiver Program, you are not permitted to extend your stay in the United States beyond the initial admission period. You must depart the United States on or before the date on your admission stamp when you entered the United States. See Extend Your Stay on the U.S. Citizenship and Immigration Services (USCIS) website."

 

The VWP is just a freebee to certain countries for tourism, not immigration.

[Redro 4,601]

1 hour ago, LN1Casey said:

I don't understand why people are saying I am wrong about the AOS regarding VWP.

 

From: https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html

 

Change of status:

"If you enter the United States under the Visa Waiver Program, you are not permitted to change status in the United States. See Change My Nonimmigrant Status on the U.S. Citizenship and Immigration Services (USCIS) website."

 

Extending your stay:

"If you enter the United States under the Visa Waiver Program, you are not permitted to extend your stay in the United States beyond the initial admission period. You must depart the United States on or before the date on your admission stamp when you entered the United States. See Extend Your Stay on the U.S. Citizenship and Immigration Services (USCIS) website."

 

The VWP is just a freebee to certain countries for tourism, not immigration.

I'm thinking... this is about changing from non-immigrant to non-immigrant status

The link you sent includes the K-1 and we all know you are allowed to change status if you enter on the K1.

You may not apply to change your nonimmigrant status if you were admitted to the United States in the following categories:

• Visa Waiver Program 
• Crew member (D nonimmigrant visa)
• In transit through the United States (C nonimmigrant visa)
• In transit through the United States without a visa (TWOV)
• Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
• Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)

[yuna628 9,530]

8 hours ago, LN1Casey said:

I don't understand why people are saying I am wrong about the AOS regarding VWP.

 

From: https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html

 

Change of status:

"If you enter the United States under the Visa Waiver Program, you are not permitted to change status in the United States. See Change My Nonimmigrant Status on the U.S. Citizenship and Immigration Services (USCIS) website."

 

Extending your stay:

"If you enter the United States under the Visa Waiver Program, you are not permitted to extend your stay in the United States beyond the initial admission period. You must depart the United States on or before the date on your admission stamp when you entered the United States. See Extend Your Stay on the U.S. Citizenship and Immigration Services (USCIS) website."

 

The VWP is just a freebee to certain countries for tourism, not immigration.

I know this is going to be hard to understand, I was pretty annoyed about it myself for the longest time.

 

A person that comes to the USA on the VWP may marry and adjust status under specific circumstances. They cannot leave the country and cannot work until authorization arrives however, which is not too unlike the process of the adjustment phase after obtaining a fiance visa. It all comes down to intent however:

 

A person may not come to the USA and adjust status with that specific intent by lying to an officer. State that this is your intent at the border and you will get yourself in trouble fast. It is acceptable to marry in the US and go back home because marriage is in the domain of the state and not federal law.

 

However...

 

If a person comes to visit their USA fiance without the intent of marrying and staying AND at some point during their visit changes their mind (this is subjective to circumstances) and wishes to marry and wants to stay? Then a couple can absolutely do that. Yes, it circumvents the whole K1 process, yes it may not feel proper at all, but guess what? It happens all the time. People legitimately change their mind. People also lie. We cannot make judgement either way. There is a specific provision in the law for this. Yes, an immigration officer at a POE may warn visitors not to marry which I do think puts pressure on couples to lie about their intent even when they intend to do nothing wrong, or frighten them from doing something that is allowable and free for any human being in this country. 

 

This is a subject of a lot of ire from those that come in ''the right way''. I had been visiting my husband back and forth for the better part of 10 years. Could we have just married instead of sorrowful goodbyes? Yes. Would this have been a good idea in our circumstances? Probably not.

 

In the OP's case I do think their lengthy stays may put them at risk to come back and bite them eventually. I cannot say for sure what an officer will do, but we can all speculate that there is a risk it might not be good. Never abuse the VWP or stretch it to it's limits... it's a bit of a gambling thing.

Edited August 7, 2022 by yuna628

[Boiler 43,582]

There is a reason VJ has a forum for those adjusting from a B, VWP etc.

 

Personally most people I have actually met have adjusted.

[SusieQQQ 11,584]

There is also an issue with people here saying “oh of course you can adjust from VWP” when not everyone can.  We’ve seen a couple of posts before where LPR spouses have been refused at interview after thinking they can adjust from VWP/overstay because most posts here are IR and it’s ok, so they think they can do the same. and then get a nasty surprise. 

[Chancy 6,233]

On 8/7/2022 at 1:29 AM, LN1Casey said:

I don't understand why people are saying I am wrong about the AOS regarding VWP.

 

You may be confused because Adjustment of Status (AOS) is a different immigration process from Change of Status (COS).  COS refers to changing from one non-immigrant status to another non-immigrant status.  AOS refers to application for permanent residency.  More details in the form instructions for I-539 (application for COS) and I-485 (application for AOS).