lunisolar

So glad to hear everything went well for you!! You posted on my thread a few weeks back where I asked about doing this very same thing (thank you again for your advice) - my wife and I just sent our AOS packet off yesterday! Hopefully in around a year we'll be able to share the same good news.

Congratulations again!

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.

@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?

@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?

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.

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?

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?