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Filing i130 and i485 whilst in the US under ESTA / visa waiver

Filing i130 and i485 whilst in the US under ESTA / visa waiver

Old Apr 24th 2015, 1:38 pm
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Default Filing i130 and i485 whilst in the US under ESTA / visa waiver

Hi everyone

I hope this is the right section to ask, but I'm after some advice.

Background

My wife and I have been married 6 years. She is the US citizen and has been in the UK legally for a number of years. Both our children and dual US/UK citizens. I am a UK citizen. Edit: We were married in the US under licence and have the certificate for evidence

Question

As we are visting family in the US we can see that my father in law, who lives alone, is finding it more and more difficult to be on his own due to health issues. Unfortunately this is also true of other family members one who isn't long for this world. If my wife and I file both an i130 and i485 whilst I'm in the US under ESTA 1. Is this legal and 2. Once filed am I legally allowed to stay in the US pending the results of the application?

I wouldn't want to risk this being illegal and resulting in deportation and a ban for me, as this will make an already bad situation worse as I'll not be able to be with my family in the US

Looking at some websites / other forums it seems no one has ever asked this question before.

I appreciate any advice on this
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Old Apr 24th 2015, 2:33 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

It is illegal to enter the USA as a visitor if your real intent is to stay and adjust status to permanent resident.

Your wisest choice, since your wife lives in the UK, is to file the I-130 directly to London, which ultimately gives you an immigrant visa. This is the shortest process for you, which only takes about 6 months or so.

You will want to research Immigrant Visa, DCF, and Filing I-130 in London.

Rene
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Old Apr 24th 2015, 3:14 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Hello Rene

Thanks for replying. Our intent was to go and have a nice family holiday, never to adjust.

Its more due to circumstances we feel we can't leave my father in law alone

6 months maybe to late to help him, I don't know what to do, I don't want to leave my family

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Old Apr 24th 2015, 4:08 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

If you are already in the USA, and you did not intend to stay and adjust when you entered the US POE, you can file for AOS, yes.

That said, whenever one does an AOS from VWP, one runs the risk that the interviewing officer won't believe you had no intent, and could deny the AOS, but it seems this is rare. But it's something to keep in mind.

I'm curious, though. .. you are wanting to AOS to live permanently in the USA, right? Your post sort of sounds like you just want to stay until these elderly folks pass away (or temporarily). If you do an AOS, you should plan to stay in the USA at least the next 3 to 5 years, long enough to become s USC yourself.

Also, after filing AOS, there will be a period of about 3 months where you can't leave the USA without abandoning the AOS process; don't you have any ties in the UK that need attention the next several months? A job, a home, etc?

Rene
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Old Apr 24th 2015, 4:11 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by ChrisDawg
Hello Rene

Thanks for replying. Our intent was to go and have a nice family holiday, never to adjust.




What did you mean then? You asked if once you filed the papers you could legally stay in the US.

In immigration terms you are then trying to adjust from the status of being a visitor to one of being a permanent resident.

As said, having the intent of entering the US on the VWP and then adjusting to to a more permanent residency is illegal.

You can go on vacation to the US for up to 90 days. Would this not be long enough?
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Old Apr 24th 2015, 4:13 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by Noorah101
It is illegal to enter the USA as a visitor if your real intent is to stay and adjust status to permanent resident.

Your wisest choice, since your wife lives in the UK, is to file the I-130 directly to London, which ultimately gives you an immigrant visa. This is the shortest process for you, which only takes about 6 months or so.

You will want to research Immigrant Visa, DCF, and Filing I-130 in London.

Rene
At what point in the filing of the I-130 in London does one need to submit one's passport? Immediately one files?
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Old Apr 24th 2015, 4:16 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by SanDiegogirl
At what point in the filing of the I-130 in London does one need to submit one's passport? Immediately one files?
No. At the end, during the visa interview.

Rene
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Old Apr 24th 2015, 4:31 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by SanDiegogirl
What did you mean then? You asked if once you filed the papers you could legally stay in the US.

In immigration terms you are then trying to adjust from the status of being a visitor to one of being a permanent resident.

As said, having the intent of entering the US on the VWP and then adjusting to to a more permanent residency is illegal.

You can go on vacation to the US for up to 90 days. Would this not be long enough?
Sorry I didn't explain very well.

We are currently on holiday visiting family. This was our intention.

Since we have been here 8 days of 14, my father in law has fallen I'll after suffering a mini stroke. My wife's now worried to leave him on his own, he has no family in the area and she wants to be there for him

That brought about the question I asked.
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Old Apr 24th 2015, 4:34 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by Noorah101
If you are already in the USA, and you did not intend to stay and adjust when you entered the US POE, you can file for AOS, yes.

That said, whenever one does an AOS from VWP, one runs the risk that the interviewing officer won't believe you had no intent, and could deny the AOS, but it seems this is rare. But it's something to keep in mind.

I'm curious, though. .. you are wanting to AOS to live permanently in the USA, right? Your post sort of sounds like you just want to stay until these elderly folks pass away (or temporarily). If you do an AOS, you should plan to stay in the USA at least the next 3 to 5 years, long enough to become s USC yourself.

Also, after filing AOS, there will be a period of about 3 months where you can't leave the USA without abandoning the AOS process; don't you have any ties in the UK that need attention the next several months? A job, a home, etc?

Rene
Hi René

Yes we have our home and jobs, but if I can legal stay the jobs would be quit and the house sold I suppose!

I just weighing up the options. Going via London's process that 6 to 10 months before my wife and I can be with her sick father. I'm looking for best of both worlds, one where we can be here for dad and it not be illegal

I'm starting to wonder if that's even possible
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Old Apr 24th 2015, 5:07 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by ChrisDawg
Sorry I didn't explain very well.

We are currently on holiday visiting family. This was our intention.

Since we have been here 8 days of 14, my father in law has fallen I'll after suffering a mini stroke. My wife's now worried to leave him on his own, he has no family in the area and she wants to be there for him

That brought about the question I asked.
Originally Posted by ChrisDawg
Hi René

Yes we have our home and jobs, but if I can legal stay the jobs would be quit and the house sold I suppose!

I just weighing up the options. Going via London's process that 6 to 10 months before my wife and I can be with her sick father. I'm looking for best of both worlds, one where we can be here for dad and it not be illegal

I'm starting to wonder if that's even possible
Statically probably well over 90% are approved for AOS as long as there isn't anything negative in their background (criminal record, etc.) and yours will likely be even higher since circumstance changed with her father becoming ill which may give credence that there wasn't intent. A one time consultation with an immigration lawyer may be advisable.
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Old Apr 24th 2015, 5:07 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by ChrisDawg
Going via London's process that 6 to 10 months before my wife and I can be with her sick father. I'm looking for best of both worlds, one where we can be here for dad and it not be illegal

I'm starting to wonder if that's even possible
Just an observation, your wife can be with her father and stay as long as she wants and you can come and go on the vwp for short visits.

What is the doctor's prognosis?
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Old Apr 24th 2015, 6:16 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

A long time ago I had a client who was a businessman from Taiwan who made frequent business trips to the US, On one trip, he married his long time US citizen girlfriend and then left timely. On his next trip, they filed the I-130/485 and requested advanced parole [this was before you did it via the I-131]. With parole in hand, he then leaves the US in a timely fashion. He returns one week before the interview. Adjudicator is bent out of shape -- the lawyer mentions that he was admitted for sixty days and left within that time, just like he was supposed to. Lawyer points out the Hosseinpour case that mere filing for adjustment is not a violation of non-immigrant status. Case approved.
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Old Apr 24th 2015, 7:19 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Originally Posted by ChrisDawg
Going via London's process that 6 to 10 months before my wife and I can be with her sick father.
To clarify, your wife and children are US citizens and can remain in the US without incident. You, however, require paperwork - and that will take time!

Ian
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Old Apr 24th 2015, 7:36 pm
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Default Re: Filing i130 and i485 whilst in the US under ESTA / visa waiver

Thank you everyone for the replies

We are going to seek advice from an immigration lawyer, just to make sure

Thank you all again, very helpful advice
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