Golojones

Hi all.

On Friday my wife of 3 years (US citizen - we both live in UK) got a job in Chicago with an April start date.

We have a 6 month old daughter, who I'll be caring for once we move.

We don't have time to go through consular processing before we go for me (British citizen).

Can I get into the country on a tourist visa or ESTA and apply for change of status as soon as we arrive?

All the info we've read has been a bit 'grey', but the info with the I-485 seems to say a spouse can enter on an ESTA and apply for change of status.

Any advice much appreciated! We're hoping this is a fairly simple situation, but just need some reassurance.

Thanks in advance.

Pulaski

It is possible, but involves you lying to immigration that you are only visiting the US if/when you enter on the VWP. If things don't go smoothly for you when you attempt to change to a spouse visa, you risk being deported and banned from returning for a period of years no matter that your spouse is a USC resident in the US. Proceed with extreme caution, especially as you appear to be contemplating a deliberate and premeditated breach of US immigration law.

You are not going to get much reassurance here. ..... Ian will probably be along later to explain things for you in his inimitable style.

Noorah101

Hi and Welcome to BE!

Whether you have time or not, that is the process. Fortunately, because your USC wife has already been living in the UK (I assume more than 6 months), the I-130 can be filed directly to London, and the whole process only takes 4 - 6 months (as opposed to the normal 8 - 10 when the I-130 is filed in the USA). This IS the fastest route to an Immigant Visa. You are very lucky to be able to take advantage of it.

It is illegal to enter the USA as a tourist when your real intent is to remain and adjust status (AOS). Whether you choose to follow that illegal route is up to you. Just be aware of the consequences if your AOS gets denied. If it gets denied, you will be removed from the USA, most likely with a ban from returning. Just make sure your USC wife is OK with relocating back to the UK if this happens...or be prepared to live apart.

Link, please?

Your situation is very simple indeed, you are correct. Rest assured that you already have in hand the quickest way to immigrate to the USA. Have your USC wife file the I-130 immediately to London to start the ball rolling on your Immigrant Visa. She moves to the USA in April, starts working, and that makes it even easier because she won't have to prove intent to domicile in the USA, and she will have income to show on the I-864 affidavit of support...two very big bonuses for you! Then around July - August-ish you can join her in the USA.

If your daughter is already a USC, she can go with Mom in April, or can stay with you and move over when you do.

Rene

christmasoompa

A very similar situation in this recent thread - http://britishexpats.com/forum/showthread.php?t=824588

I just hope you take the news that what you're planning is not great and that you should rethink better than that guy did!

Good luck.

Golojones

Thank you both.

Is there no allowance for short notice moves for US citizens and their families - given that this situation must crop up regularly around job offers etc?

Link to advice on form, point 11 on page 2.

http://www.uscis.gov/sites/default/f...i-485instr.pdf

Advice from us citizenship/immigration services - certain people able to apply for green card inside us?

http://www.uscis.gov/green-card/gree...ive-us-citizen

See 'one step process'

Noorah101

No.

Going to look at your links now.

Rene

Pulaski

Here's another thread re a couple, albeit in a very different situation to you, who decided they could "wing it". He's already been banned from the US, with 8½ years still to go, and she's about to be banned from the UK.

Noorah101

OK, the link above, I agree, makes it sound like it's OK. However, it doesn't go into great detail to discuss the "intent" issue. I believe it assumes the foreign spouse is ALREADY in the USA and decides to adjust status. That's different than having the intent to adjust status while still outside the USA (which is not allowed).

Notice it says "certain people are eligible....". Those "certain people" they are talking about, are people who are already inside the USA, who did not have prior intent to adjust status. You do not fall into that category.

Rene

Pulaski

"Certain people" would be those already legally in the US on another visa, such as L1-A, H1-A, O-1, etc., or otherwise entered the US and did NOT anticipate changing status. It does not mean that anyone already in the US is entitled to convert to a spouse visa.

Pulaski

...... That's different than having the intent, while still outside the USA, to enter the USA and change status (which is not allowed). ....

[Right, Rene?]

Golojones

Surely that point 11 covers 'intent' by saying that you cannot apply for change of status on a visa waiver UNLESS you are a spouse.

The only reason you would get an ESTA with the intention of applying for change of status is under this point surely, otherwise you'd be risking all the mentioned problems?

Noorah101

Correct. Although it could also mean someone who entered the USA as a visitor, intending to return, but then changed their mind once inside the USA.

The main sticking point is that one should not have the intent to remain in the USA, prior to entering the USA.

Rene

Noorah101

Yes, thanks for the better wording.

Rene

Noorah101

No.

No.

One should not have the intent, while still outside the USA, to adjust status once inside the USA. The point you refer to above is assuming the VWP visitor is already inside the USA and has now changed their mind and wants to stay....AND has a USC relative.

I certainly agree that the paragraph you point to is badly worded, or is lacking further information about "intent".

Also, one should not be reading I-485 instructions while outside the USA at all. The I-485 is for someone who is already inside the USA and decides to adjust status. Not for someone currently outside the USA. For anyone currently outside the USA, the I-485 is not a form they should be looking at, as it doesn't apply to them (unless it's a K-1 visa applicant who is looking ahead to what happens after arrival on the K-1 visa).

Rene

Pulaski

Yes, thank you. I was editing/ enhancing my response while you were adding your post.