Bernard

If my husband applies for my permanent residency while I enter
the United States using I-94W (Visa waiver program),
can I stay in the United States while I wait for I-130 and I-485
to process?

Any idea how long the petitions will take?

Your advice is appreciated.

Sincerely,
Tina

Mrtravel

Bernard wrote:
    >
    > If my husband applies for my permanent residency while I enter
    > the United States using I-94W (Visa waiver program),
    > can I stay in the United States while I wait for I-130 and I-485
    > to process?

It is illegally to enter the US under the waiver, if this is your
intention.
The legal way is to get the proper visa to enter the US.
If you are already in the US, then you might be OK in filing depending
on circumstances.

Since you are already married to a citizen, you must make sure you have
enough evidence when entering the US to show that you do NOT intend to
stay.

    >
    > Any idea how long the petitions will take?

A few months to a few years.

Folinskyinla

Hi:

I get the feeling that you are asking from outside the United States. If so, you are playing with fire and other people, including me, will be hesitant to answer lest they be acused of aiding and abetting visa fraud.

Ron

Mrtravel's remark is correct. However, study up on the process and make an
informed decision. There is beau coup discussion on the NG about doing what
you propose, and many couples have gone that route and had no problems. The
benefit is obvious, but you need to fully understand the risks involved.


"Bernard" wrote in message
news:[email protected]...
    > If my husband applies for my permanent residency while I enter
    > the United States using I-94W (Visa waiver program),
    > can I stay in the United States while I wait for I-130 and I-485
    > to process?
    > Any idea how long the petitions will take?
    > Your advice is appreciated.
    > Sincerely,
    > Tina

Bernard

Hello, I do not think it is illegal to enter the States
with I-94W and then file the I-130. I mean, I think it is
allowed for a person holding the I-94W to file the I-130
petition, IF he or she is an immediate relative of a US citizen.
I include part of the USC below.

Assuming it is legal to do the above, the questions are:
(1) do people have any idea how long the I-130 and I-485
may take, and
(2) can the person with the I-94W remain in the US while
the petitions are pending.

Thank you for any insight.

Cheers,
Bernard

-------

TITLE 8--ALIENS AND NATIONALITY

CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF
JUSTICE

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE--Table of Contents

Sec. 245.1 Eligibility.
[...]
(b) Restricted aliens. The following categories of aliens are
ineligible to apply for adjustment of status to that of a lawful
permanent resident alien under section 245 of the Act, unless the
alien establishes eligibility under the provisions of section 245(i) of the
Act and Sec. 245.10, is not included in the categories of aliens
prohibited from applying for adjustment of status listed in
Sec. 245.1(c), is eligible to receive an immigrant visa, and has an
immigrant visa immediately available at the time of filing the
application for adjustment of status:
[...]
(8) Any alien admitted as a Visa Waiver Pilot Program visitor
under the provisions of section 217 of the Act and part 217 of this chapter
other than an immediate relative as defined in section 201(b) of the
Act;
-------
-------
INA: ACT 201 - WORLDWIDE LEVEL OF IMMIGRATION 1/

Sec. 201. [8 U.S.C. 1151]
[...]
(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens
described in this subsection, who are not subject to the worldwide
levels or numerical limitations of subsection (a), are as follows:

[...]

(2)(A)(i) Immediate relatives. - For purposes of this subsection, the
term ``immediate relatives'' means the children, spouses, and parents
of a citizen of the United States, except that, in the case of
parents, such citizens shall be at least 21 years of age.
[...]
-------

Folinskyinla

Hi:

This has been discussed at length and ad nauseum on this NG and elsewhere.

It is ILLEGAL to enter on an EW with the intention of getting married and then filing for adjusting status.

However, if you GET AWAY with step one, then the AOS can be granted. And that is assuming that NO affirmative misrepresentations were made at time of entry. Misrepresentation if a BAR to adjustment. There is also the issue of "preconcieved intent" -- the law is clear that this is a negative DISCRETIONARY factor -- as such it is not an absolute bar. The case law holds that marriage to a US citizen is a positive discretionary factor which outweighs the negative discretionary factor.


If the intentional evasion of the immigrant process fails at the POE, as it sometimes does, then, the subsequent visa process is screwed up.

If the intentional evasion of the immigrant process includes a LIE to a BCPB official at the POE, then there is a bar.

YOU may be of the "opinion" it is "legal" -- you are wrong. It is playing with fire.

Bernard

Thanks for the messages. May be I should do some more research.

May be we should provide more information about us.
I am a naturalized US citizen, landed Canadian immigrant.
My wife is a Dutch citizen, land Canadian immigrant.

We have been living in Canada for the last five years
and have been married (in Canada) for four years.

I was laid off recently and there is a good chance
we will need to move back to the States for a new position.

We read the following on the I-485 form:

-----------------------------------------------------------------------
Persons Who Are Ineligible.

Unless you are applying for creation of record based on
continuous residence since before January 1, 1972,
or adjustment of status under a category in which special
rules apply (such as asylum adjustment, Cuban adjustment,
special immigrant juvenile adjustment or special immigrant
military personnel adjustment), you are not eligible for
adjustment of status if any of the following apply to you:
[...]
you were admitted to the U.S. as a visitor under the Visa Waiver
Pilot Program, unless you are applying because you are an immediate
relative of a U.S. citizen (parent, spouse, widow, widower or
unmarried child under 21 years old);
-----------------------------------------------------------------------

So we went looked up the USC and it seems to say the same thing.

Does it boils down to "intent"? Meaning, when you are entering
by I-94W, you are not supposed to apply for change of status?

The how comes it is not ineligible?

I guess I am a bit confused because I am getting the impression
that people are saying that "not illegal" is not the same as "legal".

Thank you again for your kind help.

Cheers,
Bernard

Paulgani

The message/post originated from Canada, specifically, southeastern Ontario.

Paulgani

"Folinskyinla" wrote in message
news:[email protected]...
    > Originally posted by Bernard
    > > If my husband applies for my permanent residency while I enter
    > > the United States using I-94W (Visa waiver program),
    > > can I stay in the United States while I wait for I-130 and I-485
    > > to process?
    > >
    > > Any idea how long the petitions will take?
    > >
    > > Your advice is appreciated.
    > >
    > > Sincerely,
    > > Tina
    > Hi:
    > I get the feeling that you are asking from outside the United
    > States. If so, you are playing with fire and other people,
    > including me, will be hesitant to answer lest they be acused of
    > aiding and abetting visa fraud.
    > --
    > Certified Specialist
    > Immigration & Nat. Law
    > Cal. Bar Board of Legal Specialization
    > Posted via http://britishexpats.com

Paulgani

"Bernard" wrote in message
news:[email protected]...
    > military personnel adjustment), you are not eligible for
    > adjustment of status if any of the following apply to you:
    > [...]
    > you were admitted to the U.S. as a visitor under the Visa Waiver
    > Pilot Program, unless you are applying because you are an immediate
    > relative of a U.S. citizen (parent, spouse, widow, widower or
    > unmarried child under 21 years old);
    > -----------------------------------------------------------------------
    > So we went looked up the USC and it seems to say the same thing.
    > Does it boils down to "intent"? Meaning, when you are entering
    > by I-94W, you are not supposed to apply for change of status?
    > The how comes it is not ineligible?
    > I guess I am a bit confused because I am getting the impression
    > that people are saying that "not illegal" is not the same as "legal".

There are 2 separate issues. One is "can you enter the U.S.?", and the
second is "once you enter, can you AOS?" Don't confuse them.

Basically, it is illegal to do #1, if your intent is to do #2. However, if
you are successful at #1, then you will be successful at #2. Get it?

Read this:

*****

It is illegal to enter the U.S. as a tourist (via. B1/B2, Visa Waiver, or
Canadian Waiver), with a preconceived intent to immigrate by marrying and
filing for AOS. It is NOT illegal to enter the U.S. as a tourist if your
intent is to depart the U.S. after a temporary visit, but you change your
mind and decide to marry and file AOS AFTER your arrival in the U.S.

An INS official will attempt to determine your intent at the Port of
Entry. Should you be determined to have "immigrant intent", you *will* be
denied entry to the U.S., and you *could* be subjected to Expedited
Removal, which entails a 5 year ban to reentry. Note, there is NO appeal
of the POE official's decision.

Should you successfully enter the U.S., you will be permitted to AOS,
*regardless of your original intent* at the POE. Case law binds the INS
to grant AOS if having "preconceived intent to immigrate" at entry is the
only negative equity in your application. However, if it is determined
that you made "material misrepresentations" at the POE in order to achieve
an entry, you will be denied AOS.

*****

Paulgani

Bernard

And your point is...?

Bernard

"paulgani" wrote in message news:...
    > The message/post originated from Canada, specifically, southeastern Ontario.
    >
    > Paulgani
    >
    > "Folinskyinla" wrote in message
    > news:[email protected]...
    > >
    > > Originally posted by Bernard
    > > > If my husband applies for my permanent residency while I enter
    > > > the United States using I-94W (Visa waiver program),
    > > > can I stay in the United States while I wait for I-130 and I-485
    > > > to process?
    > > >
    > > > Any idea how long the petitions will take?
    > > >
    > > > Your advice is appreciated.
    > > >
    > > > Sincerely,
    > > > Tina
    > >
    > > Hi:
    > >
    > > I get the feeling that you are asking from outside the United
    > > States. If so, you are playing with fire and other people,
    > > including me, will be hesitant to answer lest they be acused of
    > > aiding and abetting visa fraud.
    > >
    > > --
    > > Certified Specialist
    > > Immigration & Nat. Law
    > > Cal. Bar Board of Legal Specialization
    > >
    > >
    > > Posted via http://britishexpats.com

Folinskyinla

Hi:

Fascinating. I now wonder if the reference to the I-94W and the visa waiver was a ruse since Canadians don't fall under that program at all.

They are exempt from visas by regulation [except for E & K's] and do a regular I-94 if they do one at all.

Let's leave this guy well enough alone -- its his funeral if he screws up, not ours.

meauxna

<skipping Folinskyinla's excellent advice...>


Bernard/Tina, the point is, please *do* do a little more research on this subject. Everything you care to know about how this group in general feels about it and why we care from where you post.
Specifically, it is illegal to enter the US on a VW/Canadian VW with the intent to marry and adjust status. To the point enough?

Bernard

Sorry, I have always been under the impression that people
on this NG are nice and reasonable.

If you believe what I had said to be untrue, I am sorry.
I can only say I had not said a word that is not true.

I had told you that I am a naturalized US citizen,
Canadian landed immigrant; and my wife is a Dutch citizen,
Canadian landed immigrant.

I had also said we had been living in Canada for the
last five years and were married for four years (in Canada).

Go back to the thread and check this, please.

My wife will not be entering the US under I-94W
with the intention of immigrating "by marrying".
We are married for four years already.

All I asked in the beginning is if people know
how long the petition of I-130 and I-485 may take.

Thank to the person who answered "a few months
to a few years".

The reason I ask is that I do not know what
are the proper things to do and what are not.

What is that people seem to imply that I want
to sneak through and not obey the laws, when
trying to find out what the laws dictate
is exactly the reason I am asking such things.

Really, why are you guys and gals all so suspicious?

Bernard

Bernard

Thanks again. Will need to do more research for sure.
We had asked my aunt to consult an immigration lawyer.

We thought we were able to find out exactly what
should be done by looking at the US Code and INA
and by posting questions on NG like this one.

We also thought there was a distinction between
someone "getting married" and someone "married already".

Understand the issue on "intent" now. Thanks to all.

Again, please do not misunderstand our intention
and please trust that we had made no attempt
to provide any false information or deceive anyone.

Good day.

Bernard

meauxna wrote in message news:...
    > Originally posted by Bernard
    > > And your point is...?
    > > "paulgani" wrote in message news:news:...
    > > > The message/post originated from Canada, specifically,
    > > southeastern Ontario.
    > >
    >
    > <skipping Folinskyinla's excellent advice...>
    >
    >
    > Bernard/Tina, the point is, please *do* do a little more research on
    > this subject. Everything you care to know about how this group in
    > general feels about it and why we care from where you post.
    > Specifically, it is illegal to enter the US on a VW/Canadian VW with the
    > intent to marry and adjust status. To the point enough?