damoclessword

Hi all,

I'm a USC engaged to a UKC. She is here on VWP, and she is now 11 days into overstay (long story...). Ive read about 50 postings here, but most seem to be geared towards people who already married during VWP overstay. We would like to get married and live in the US, and we are seeking your advice on how best to do this. It seems to me that the options are:

1. Marry immediately, then I-130 + I-485, in a location that is not deporting overstayed AOS's
2. She leaves immediately, we apply for fiance visa and then she returns
3. I go to UK and marry there, then we apply for her green card

Background: 3.5 year relationship began in US college, continued during her OPT and 2 VWP visits

I do not currently make 125% of the poverty line for 2 people, but I am contracted to make 40k/year starting in September. Her family is independently wealthy.

How do you recommend that we proceed? Also, is it correct to assume that if she returns to UK, barring a fiance visa, she will likely be denied entry (B2) for a period of years?

Thank you very much!

fatbrit

Marry now, file the 130 for an IR1, she leaves before 180 days of overstay, she returns to the US on an IR1 and becomes a PR. You shouldn't be apart for more than 3 months or so. Your earnings will be adequate when they are required.

Eric S

First of all, you might want to read this thread: http://britishexpats.com/forum/showthread.php?t=651746

Secondly, you may want to talk to an immigration lawyer before you start the AOS process, if you decide to do that.

Thirdly, you should probably be posting in the Marriage Based Visas forum. But I bet a moderator will come along soon and move this thread over.

- Eric S.

Noorah101

Probably not a good idea, considering she's already overstayed and you're not even married yet. Plus you can't choose where your AOS interview will be. It will be where you live.

Yes, this is one possibility. She won't be able to use the VWP ever again, and it will be difficult for her to get a tourist visa, so you'll have to go visit her if you want to see each other during the K-1 visa process.

There is time and expense involved in getting you the correct visa to marry in the UK, but it's doable, if you really want to marry in the UK instead of the USA. She won't be applying for her green card from overseas, it will be an Immigrant Visa. As with option 2, you will have to go visit her during the visa process.

You forgot Option 4, which fatbrit has recommended (although I don't agree with having her continue to overstay). Marry now in the USA and then file an I-130 towards her Immigrant Visa. She returns to the UK and then when she gets the Immigrant Visa in hand, she comes to the USA and becomes a US PR upon entry.

I recommend Option 4.

It will be difficult for her to get a tourist visa, yes. She overstayed in the USA which means her track record isn't good. She has a USC love interest, another strike against her. It doesn't matter whether it will be a period of years, though, she should have the K-1 visa in hand in under a year, if that's the way you go.

Rene

ian-mstm

+1. This is your best course of action. Marry now and file an I-130 (but not an I-485). Then she leaves ASAP and returns with an immigrant visa. Every other course of action is more expensive, takes longer, and/or increases your risk.

Ian

jeffreyhy

I agree with Rene and Ian. And as to the subject of your post, how best to marry is not the important issue. The important issue is how best to pursue immigration. Although many people seem to equate them, marriage and immigration are two different things.

Regards, JEff

fatbrit

Why the ASAP? She's already bunt the VWP, so she can't really burn it any more. As long as she leaves before the 180 overstay mark, outcome should be the same.

mariposah

I would go with number 1, seeing that USCIS are now adjudicating VWP AOS with no problem.

She has already overstayed so just file the I-130/I-485/I-765/I-864 and be done with it.

The only drawback is if denied you wont be able to appeal but as long as your application is put together properly then there is no reason that would happen.

All the best.

Noorah101

Actually, USCIS is now cracking down harder than ever on VWP AOS cases, especially those filed AFTER the overstay!

That "only" drawback is a huge one, though. In addition to not being able to appeal, it also includes being banned from returning to the USA in the future.

And it has nothing to do with a properly put together package. It has to do with what the interviewing officer believes the intent was at the POE.

Rene

discoviking

I would not touch option 1 with a 10 foot pole. I vote for option 4.

mariposah

I have a lot of respect for you and your advise having been a lurker on this board for years but in this case you are dead wrong!

USCIS have released memos to all Districts stating that they are now adjudicating VWP overstays as normal. At a time after the various District court rulings there was a serious problem with VWP overstays but the Solicitor general and USCIS recently clarified this situation for all D/O's and made it clear that they retained jurisdiction over VWP overstays and are now adjudicating those overstays in the same way as they adjudicate other visa overstays. It has actually been posted in your sticky (which is now out of date).

http://www.uscis.gov/USCIS/Outreach/...%20_040711.pdf

You can read from page 5.

To the OP because you are not able to appeal your decision if you take the first route that you asked about, it is prudent to make sure your package is well put together. This means every single thing needs to be in order; if you have a foreign birth certificate, make sure that it is translated. If you have a change of name, make sure you have the documentation to attest for that. If you sponsor hasn't filed taxes for 15 years, make sure that they are filed. As long as that package is iron clad as relates to evidence, you will limit the RFE's(requests for evidences) that you may get and be able to go through the AOS process with limited issues.

Yes the HUGE drawback is you can not appeal a denial, but with a bonafide marriage and lack of intent in your initial entrance, there is a good possibility that you will be fine. Since the memo was published, I have not heard of one VWP adjudication that was denied.

I know a lot of VWP overstay entrants who have recently been successfully approved for their LPR's and on interview, the IO did not ask them one thing about their VWP entrance or overstay.
The VWP entrants who were on hold are being adjudicated and have their green cards ordered.

I do not know any entrants who are being held in abeyance in this time(And that may be because I do not know any who are in removal proceedings)

All the best with the choice you choose to make. As I always say knowledge is power.

ps. I know the San Diego was flat denying and the USCIS guidance should have changed that but based on their stance in the past, I would need to know of actual VWP adjustments that have occurred. I do not know of any.

Thanks.

S Folinsky

Hi:

Read that memo again. Within the bar I am known for having edited the old military acronym of "FTA" to immigration law as a the method of statutory construction used by the government [Hint: substitute "alien" for "army."]

Danger still lurks.

meauxna

Moderator Note:

General discussion posts regarding the recent VWP/AOS information from USCIS has been moved to the discussion thread for that topic: VWP Entry and Adjustment of Status: New Decision

Please leave this thread for discussion of the OP's question.



mariposah, I'm sure you realize the tempest this discussion can brew. I appreciate that you have some knowledge and seem to have done some reading on the topic. Since you are new to the group and many of us have gone over this together in the past, it makes sense to get to know each other and positions on the topic. Because there are very few actual black/white facts about this topic, I'm sure we'll appreciate reading your perspectives on this complex topic.

Rumplestiltskin

+1 for option 4.

I pretty much went with option 1 with the exception that we married while the VWP was still current, then overstayed before adjusting. But I wouldn't recommend this as it took over 7-years and cost some $12k! With hindsight I could have avoided this pain.

@mariposah: I believe the USCIS stance is to process overstays in the same way as they did prior to last years hold. I was told that I was about to be approved last year then got placed in a stagnant pile while a decision was pondered over as to who had juristriction over such cases. Last week I received my Green Card. If however it would have been USCIS' decision to deny me then it would have been that denial that I would have received.

mariposah

Yea. Did you file initially in PA? I know that PA was one of the states that was placing VWP overstays on hold so Im not surprised you got your LPR. The other entrants that I know of never had another interview or letter to explain. They just got a letter in the mail stating that their card was in production. Congrats for you! I was trying to find your thread because I wanted to see how you managed to spend $12k! Thanks.