Ranjini

Only an immigration lawyer can answer those questions. By looking at your case and your particular circumstances. There are somethings one can do by one's self. For somethings you need an immigration lawyer. I think this just one such case.
Marrying and then adjusting status while on a tourist visa is something I would not attempt without hiring a lawyer. These are the conclusions I have come to and my humble opinion only....

Rete

The following is my take on it:

Believe it is called "preconceived intent"

In other words if it an act of fraud to knowingly enter the US with the preconceived intent to marry and remain to adjust status. The act is fraudulent, if I understand it properly, regardless of whether not the agent asked you if you have this intent.

The act of marrying is not fraud or illegal. Nor is the act of remaining to adjust status from a tourist visa or a VWP entry as evidenced by the I-485 form itself. The illegal act is the intent or preconceived intent.

Now how does the USCIS prove your preconceived intent? Or will they even bother to try to do so? Will you be passed over and waved through the AOS process with nary a blimp on the radar? Luck of the draw in most cases I'm assuming.

Rete

HunterGreen

Actually, I'm not really asking for a probable outcome. I am interested in the outcome, yes. What I'm looking for, is Lawbook Immigration A-Z, page 2,026, paragraph 314(xy)(z), section f. And there it will say ''it is illegal to come to the US on the VWP already married to, or with the intent to marry, a USC and adjust status to permanent resident from there'.
Of course that would probably be too simple .

And I agree with you LP, that there probably ARE no cold hard facts, and that every case is based on everyones particular circumstances, like Ranjini said. And I agree with Rete, crap shoot, luck of the draw... you name it.
But somewhere there has to be the ultimate guideline, the base for all of this. And that's what I'm trying to find, without any emotions towards this particular case anymore. They have the stress of worrying about getting approved or being deported, others have the stress of being apart... pick your poison, depending on what your morals, standards and circumstances are. Then live with the outcome.

Elaine

Ranjini

Let me know if you find it, Elaine. Because I'm much like you in that I will not rest until I find answers. But law in general, to my mind, appears to be vague and often open to interpretation. Most cases therefore appear to be decided by precedent. So I'm guessing it's the same with immigration law. Which is why there is business out there for lawyers, IMHO.
If you are serious about this, perhaps a law library may be a good place to start....

CalgaryAMC

Some people - I am one - are convinced that VWP AOS is the rule rather than the exception.

I have no evidence for this, just a hunch, and my hunch is that the vast majority of people are a) completely ignorant of the law, b) not willing to wait even if they aren't ignorant and c) have little concern for the consequences.

My second hunch is that the overwhelming majority will probably adjust without any problems whatsoever.

I'd love to see a statistic on it.

Ranjini

Which I suspect, is the view of the majority here. As long as there aren't the obvious red flags. But the OP, I think, is looking for something more substantial than a mere hunch.

lpdiver

I see you are looking for the applicable section of the Code Of Federal Regulations. Even then how the law is actually applied (what really matters) is often open to interpetation. This is where a competent EXPERIENCED attorney (in your type of case) is invaluable.

CalgaryAMC

And the "conclusions [you] have come to and [your] humble opinion only" are certainly more verbose, if not more substantial.

In any event, we can do no more than speculate, because there are no figures published on this.

Ranjini

Yep. And that's my final answer, too

HunterGreen

I am, and I intend to. I'll either find what I'm looking for, or prove it doesn't exist.

Elaine

HunterGreen

It is, and I accept that. I just want what they're interpreting from. Am I getting annoying yet?

I would like to make extra clear that this is not MY case, nor my type of case.
By the way, the people in this case said they consulted with several immigration lawyers. They didn't say they consulted with GOOD ones though.

Elaine

Ranjini

Good girl Now I really like someone who knows her own mind. I hope it doesn't prove elusive like the search for the Holy Grail

Ranjini

They obviously did not consult Shusterman. Maybe they should:
http://shusterman.com/marriage.html
Go to this link and and read the final paragraph of "If Marriage Occurs Outside the US"
Good luck,
Ranjini

CalgaryAMC

All right, here's my go at it:

First the VWP

The pertinent legislation is section 217 of the INA. Subsection (a)(1) states that section 101(a)(15)(B) of the INA is to be used to determine non-immigrant. The pertinent words in section 101(a)(15)(B) are "having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure."

Now, onto the matter of AOS.

Section 245(c)(4) forbids AOS based on entry under the VWP but makes a specific exception for immediate relatives.

Fine, so there is no question that the person is eligible to adjust status. But that does not mean that a violation of 217(a)(1) has not occurred, nor does section 245(c)(4) provide any waiver of 217(a)(1).

So, you are left with the situation of being legally able to adjust status but at the same time in possible violation of section 217(a)(1). Note that it is not the marriage that is the problem, getting married is irrelevant and goes completely unmentioned in 101(a)(15)(B), it is the intention of abandoning your foreign place of residence that is the illegal part.

So, how's that?

HunterGreen

That's real good. And actually, that's where I got also, thinking about it in my mind. Reading it here like you posted it, made a little light go off in my head though, that didn't go off when I just THOUGHT about it. That THIS is where the interpretation of the law starts.
The conflicting information made me think there MUST be something more detailed in the law about immediate relatives AOS'ing from the VWP, and that's what I went looking for. Now I realize there might not be... because this is where the draw begins. This is where the lawyers play a big role, it is what they convince the USCIS, in any specific case, of what's most important. The good lawyers probably will get AOS for their clients.
Hmmmmmmmm LOL. Holy Grail here I come.

I suspect there might be a few people out there who are laughing their behinds off if they followed my train of thought throughout this thread, because they knew where it would lead all along... *grin* Did I mention yet that I love this sort of stuff?

Elaine