On Tourist Visa while applying for AOS

D

Denmark

Registered Users (C)
I am a US citizen. My wife is currently here in the US as a tourist. We are unsure about how to begin with the immigration process.

Can we apply while she is here on her tourist visa for forms I-130, I-131, I-485, G-325A, I-765, I-864, I-693 concurrently? It is my understanding that by being in the US while on a tourist visa and attempting to adjust status that that may be considered Visa fraud. USCIS has told us on the phone that "they can not technically advise us" to proceed in this maner but hinted that it may be OK. Is this still the case as long as she leaves before her 90 day visa period expires? If so will there also be problems for her to come back in even if she has advanced parole approved?

What is the best solution to get her into the country and allowed to work as fast as possible while the GC is being processed?

My wife is from Denmark and also possess a PhD degree if that makes any difference.
 
Hi there,
Unfortunately I can't answer your question but I'm a danish citizen too and I came to US as tourist as well (visa waiver program) and got married and applied for AOS. Your situation is a bit different as you guys are already married!! So I don't know how USCIS would look at the case. I would say the safe round is to file the petition (1-130) for her and then she gets her immigrant visa in Copenhagen and enters the country with right visa. In meanwhile it should be alright for her to come here and stay for 90 days and leave!! I would say consult the situation with a lawyer. I'm sure you would also get more reliable answer from other people in this forum with more knowledge than me.

Good luck
 
Denmark said:
I am a US citizen. My wife is currently here in the US as a tourist. We are unsure about how to begin with the immigration process.

Can we apply while she is here on her tourist visa for forms I-130, I-131, I-485, G-325A, I-765, I-864, I-693 concurrently? It is my understanding that by being in the US while on a tourist visa and attempting to adjust status that that may be considered Visa fraud. USCIS has told us on the phone that "they can not technically advise us" to proceed in this maner but hinted that it may be OK. Is this still the case as long as she leaves before her 90 day visa period expires? If so will there also be problems for her to come back in even if she has advanced parole approved?

What is the best solution to get her into the country and allowed to work as fast as possible while the GC is being processed?

My wife is from Denmark and also possess a PhD degree if that makes any difference.
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In rare occasion, CIS hotline is somtimes correct :D
 
Denmark said:
I am a US citizen. My wife is currently here in the US as a tourist. We are unsure about how to begin with the immigration process.

Can we apply while she is here on her tourist visa for forms I-130, I-131, I-485, G-325A, I-765, I-864, I-693 concurrently? It is my understanding that by being in the US while on a tourist visa and attempting to adjust status that that may be considered Visa fraud. USCIS has told us on the phone that "they can not technically advise us" to proceed in this maner but hinted that it may be OK. Is this still the case as long as she leaves before her 90 day visa period expires? If so will there also be problems for her to come back in even if she has advanced parole approved?
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Technically its illegal, because a visa waiver or B-1/B-2 tourist visa does not allow for dual intent. In practice however, you are likely to be ok so long as you apply with the full doc package near the end of the authorized stay. Once you send the packet in, do not leave the country until you either have an approved AP (parole doc) or the actual GC. Do some research on the "30-60-90 rule" - which isn't a real rule at all, but does give you insight into the problem.

Denmark said:
What is the best solution to get her into the country and allowed to work as fast as possible while the GC is being processed?

My wife is from Denmark and also possess a PhD degree if that makes any difference.
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Apply for EAD at the same time as you submit your other doc package, and you should have employment authorization in 3-4 months.
 
boatbod said:
Technically its illegal, because a visa waiver or B-1/B-2 tourist visa does not allow for dual intent.
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It's not illegal at all. It's illegal for a C-1/D-1 alien to file an I-485, because the INA specifically prohibits it. Adjustment of Status has existed longer than the explicit dual intent protections of H/L status, and most non-immigrant statuses do not prohibit adjustment of status even though they do not allow dual intent.

Apart from that, you are correct. Immediately filing an I-485 after entrance in B status may cause USCIS to question whether you misrepresented your intent at the POE. That would not be good.
 
i am usc, my wife entered as a tourist vwp, candian, no i94 needed, we seeked professional help, we filed AOS. lawyers recommend you wait 60 days after entry before filing AOS. this is what my lawyer said.
 
js360 said:
i am usc, my wife entered as a tourist vwp, candian, no i94 needed
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Apologies for being pedantic, but Canada is not part of the Visa Waiver Program; the visa waiver for Canadians is defined separately in law and predates the VWP. As such, a Canadian who enters as an undocumented B visitor (ie. no I-94) has far more options than entering via the VWP; they can extend, change and/or adjust their status.

we seeked professional help, we filed AOS. lawyers recommend you wait 60 days after entry before filing AOS. this is what my lawyer said.
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Sound advice.
 
boatbod

I understand the 30-60-90 rule (we have intent on applying on day 63) but what will happen when she overstays her visa waiver program? Is she fine as long as she applied for i-130, 131, 765, 485, 325a before it expired? Is it correct to assume that uscis will forgive this since she is married to a U.S. citizen?
 
Denmark said:
boatbod

I understand the 30-60-90 rule (we have intent on applying on day 63) but what will happen when she overstays her visa waiver program? Is she fine as long as she applied for i-130, 131, 765, 485, 325a before it expired? Is it correct to assume that uscis will forgive this since she is married to a U.S. citizen?
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If she filed I485 before visa waiver expires, it is not considered overstay.
 
Overstay

GotPR? said:
If she filed I485 before visa waiver expires, it is not considered overstay.
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Even if she overstays and then later files AOS (I-485 stuff), I am pretty sure that she will still get her GC keeping in mind she will now be considered USC's spouse.
 
Atlanta_Brother said:
Even if she overstays and then later files AOS (I-485 stuff), I am pretty sure that she will still get her GC keeping in mind she will now be considered USC's spouse.
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Still better filing AOS before VWP expiration so that she won't be put in deportation order which requires extra unnecesary effort to cancel it.
 
Overstay is overstay

GotPR? said:
Still better filing AOS before VWP expiration so that she won't be put in deportation order which requires extra unnecesary effort to cancel it.
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With due respect, overstay is overstay regardless. Like I said before even if you file AOS before the stay expires, does that guarantee the person's stay in US legally? No, absolutely not. The person has to leave the country as soon as the stay expires. If you overstay & don't get caught then that's a diff story. I am not saying this but I have heard this from well known immigration attorneys.
 
We were hoping to be proactive by getting as much of the work done in advance but are concerned about the dates on some of the paperwork....Is it smart to have the medical exam performed after the 60th day of stay during the visa waiver program? Are there any known cases of USCIS using a medical exam performed less than 60 days against you as evidence of 30-60-90 rule?
 
Medical Exam

Denmark said:
We were hoping to be proactive by getting as much of the work done in advance but are concerned about the dates on some of the paperwork....Is it smart to have the medical exam performed after the 60th day of stay during the visa waiver program? Are there any known cases of USCIS using a medical exam performed less than 60 days against you as evidence of 30-60-90 rule?
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The medical report is good for 6 months from the time issued so if you are in that 6 month window, you got nothing to worry about.
 
Denmark said:
boatbod

I understand the 30-60-90 rule (we have intent on applying on day 63) but what will happen when she overstays her visa waiver program? Is she fine as long as she applied for i-130, 131, 765, 485, 325a before it expired? Is it correct to assume that uscis will forgive this since she is married to a U.S. citizen?
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my lawyer also said they will forgive overstay for spouse of USC, our AOS package was received at USCIS 4 days after intial 6 month, technically overstay.
 
Atlanta_Brother said:
Like I said before even if you file AOS before the stay expires, does that guarantee the person's stay in US legally? No, absolutely not. The person has to leave the country as soon as the stay expires.
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Who are these so-called "immigration attorneys", and why are you listening to them?

A pending, non-frivolous I-485 is considered a stay authorized by the Secretary of DHS, and is therefore legal. It is no different than a timely filed EOS petition.
 
I agree with RealCanadian. Atlanta-brother, I hope you didn't pay for that advice, or that you misunderstood your lawyer.
 
TheRealCanadian said:
It's not illegal at all. It's illegal for a C-1/D-1 alien to file an I-485... <snip>
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Maybe illegal was the wrong choice of word, however presumably you do agree that VWP and B visas do not "allow" dual intent, and as such an applicant may get extra attention from the IO during their interview. Of course, 99% of the time the application for a family-based GC will be approved regardless of this issue, so its really not a big deal, especially if you go about it in a non-blatant way. (i.e. 30-60-90)
 
Denmark said:
We were hoping to be proactive by getting as much of the work done in advance but are concerned about the dates on some of the paperwork....Is it smart to have the medical exam performed after the 60th day of stay during the visa waiver program? Are there any known cases of USCIS using a medical exam performed less than 60 days against you as evidence of 30-60-90 rule?
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Remember that I said its not a real rule, more of a guideline or rule of thumb. I doubt you'd have too much trouble if the medical was done shortly before the 60th day.
 
If you're so concerned about the 30-60-90 day rule then you could do as Rose_uw suggested and go the CP route (or K-3) ... If you want to be extra careful, I would suggest you only go ahead with the AOS if you have proof that your wife entered without immigrant intent (intended to maintain closer ties to another country, such as has a job there that she was going to return to, or property that she was going to come back to), and subsequently changed her mind. However, it's unlikely you'll be asked to prove this if you apply 60-90 days after her entry.
 
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