Entering USA after I-130 from abroad

F

Frontier

New Member
Hi all

Looking for assistance with adjusting status and work permit after the filing of the I-130. Situation as follows:

Wife and husband currently reside outisde the USA;
Wife is a US citizen and submitted I-130 petition for husband (non- US citizen) from outside the USA via Chicago lockbox facility;
Nothing official yet received from USCIS re I-130 application;
Husband (non-US citizen) would now like to travel to the US on a visa waiver whilst green card is being processed and possibly submit I-485 (adjust status) and I-765 (employment authorisation) during the 90 day admission.

Question - Is husband (non-US citizen) permitted to submit the I-485 and I-765 (spoonsored by wife who is US citizen) whilst in the USA on a visa waiver during the 90 day admission?

If so can the husband then again leave the US whilst all 3 documents are being processed i.e. I-130, I-485 and I-765 with the intent of re-entering the US once the employment permit is approved?
 
You are not allowed to enter the U.S. on a visa waiver with intent to stay and file for adjustment of status. That would be visa fraud.
 
Thanks newacct for your reply, appreciated. It's certainly not my intention to travel to the USA in contravention of the entry and immigration laws but rather ensure I enter on lawful and legitimate grounds.

For clarity, I note from the instructions accompanying the I-485 form, adjusting status, that under the section 'Who is Not Eligible to Adjust Status', specifically item 11, states the following-

Who is Not eleigible to adjust status -
'You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse ...).

Given I am a spouse of a U.S. citizen do you think that it is possible for me to enter via VWP and then lodge I-485 and I-765?
 
Frontier said:
Question - Is husband (non-US citizen) permitted to submit the I-485 and I-765 (spoonsored by wife who is US citizen) whilst in the USA on a visa waiver during the 90 day admission?
Click to expand...

It is frowned upon, but still allowed. They'll hold their nose and approve the application, but his decision to stay and immigrate will be added to the statistics associated with his country, and those statistics are reviewed when deciding whether to revoke his country from the visa waiver program.

However, it probably won't get to that stage because they're likely to refuse entry if the officer at the port of entry realizes he has a pending I-130 filed on his behalf. And if he lies to gain entry, his green card will be denied if they discover the lie.
 
Frontier said:
Thanks newacct for your reply, appreciated. It's certainly not my intention to travel to the USA in contravention of the entry and immigration laws but rather ensure I enter on lawful and legitimate grounds.

For clarity, I note from the instructions accompanying the I-485 form, adjusting status, that under the section 'Who is Not Eligible to Adjust Status', specifically item 11, states the following-

Who is Not eleigible to adjust status -
'You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse ...).

Given I am a spouse of a U.S. citizen do you think that it is possible for me to enter via VWP and then lodge I-485 and I-765?
Click to expand...

The adjustment of status is not the problem. The husband does qualify for AOS if he's in the U.S. The problem is entering on visa waiver. You are not allowed to enter on visa waiver with intent to adjust status. So if the officer asks him how long he's going to stay, what is he going to say? Will he lie? Also, if they find out that he's married to a U.S. citizen and he has a pending I-130, I think it is unlikely they will let him in.
 
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