rpjs

I think (and IANAL) that the difference is that the *only* way to adjust status on the VWP is after marriage whilst visiting, and then only if USCIS accept the intent was not present when the visitor entered and the AoS is filed within the 90 days etc.

As your husband is already married to you, he would have no legal way to attempt to adjust status whilst visiting you. That's my understanding at least.

ian-mstm

As you correctly surmise, there is no difference. Indeed, filing the I-130 should demonstrate that you intend to do things properly... but perhaps that's what your attorney is thinking of. Follow this line of reasoning for a moment... you file an I-130 that demonstrates your intent to do things properly. Your husband shows up at the border and asks permission to enter as he would whether or not the I-130 was filed. The border officer thinks to himself - "Okay, this guy's got a pending I-130 so he's going to do things properly so I should allow him to enter... but what if the I-130 is just a rouse so that I'll let him enter and then he goes on to stay anyway." If you look at it that way, I can see your lawyer suggesting caution... however, that is simply not the experience of the vast majority of travellers who have an I-130 pending. IMHO, your husband is still okay to visit.

Ian

ian-mstm

Sure he would. Adjusting from the VWP is just as easy/risky whether you're married beforehand or not. Being married makes it easier, in fact, because you don't have to bother with a wedding before you get started.

While the issue of prior intent still exists, being married when you enter the US makes no difference in the overall process.

Ian

meauxna

I anticipated a page back that you might have that question. This isn't a slam, but I encourage you to learn to read every word of your immigration stuff.. it generally all matters.

meauxna

There is also a pinned thread discussing visiting when a petition has been filed.

Bob

yup, bit of a typo on my part

midwestgirl

Ok, here's a new development that I would like to throw out here and see what you think:

My husband has to do some job training on an M1 visa in the states for work in the British Virgin Isles. His employer is actually sending him to be there, but the course will only be about 4 weeks. Still, he is going to be getting an M1 visa.....sooooooo, can he adjust his status in the US based on the fact that he is there on an M1 student visa, even if we initiate the I-130 while he is out of the country?

meauxna

There is a potential conflict here and you are now in lawyer territory for at minimum the M-1 application. There may be an issue with getting that visa OKd considering your other circumstances.

It is illegal to enter the US on a non-immigrant visa/visa waiver *with the intent of adjusting status*. This goes for tourist entries (discussed) as well as other non-immigrant entries.
The student visa application (M-1) will ask about family members in the US and the answer can impact the visa decision.

You should not attempt to self-DX this one; your husband should consider getting a legal consultation before applying for the M-1. He can ask the other questions then (altho, if he is going to be working in BVI he's not going to be any closer to being in the US with you?).

This only costs a couple hundred $$ and it sounds like you two could use the help in making a plan. Some couples/cases are just more complicated than others.

ian-mstm

It is illegal for him to enter the US with the intent to stay to adjust status unless he has the proper visa. I understand that you're anxious to get him to the US to live, but I would advise against the illegal route to do it.

Ian

midwestgirl

Thank you for the information, I want to assure you that we have no intention whatsoever of doing anything the sneaky way. I only asked about the M1 visa because I genuinely thought it might provide an alternative solution that would be more economical and at the same time, very legal. I'm glad this forum exists so I can ask about these sorts of things. I never even thought that getting his m1 for hi training would be difficult since we are married, but now I know! Worse comes to worse, he can do the training in Europe. Thanks for the clarification on everything. We just want to do this the right way so we can be together with a clear conscience, but not without researching every possibility first.