Same Sex Marriage.

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Feb 24th 2014, 10:09 am

#16

ian-mstm

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Joined: Aug 2002

Location: Kentucky

Posts: 38,865

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

Thousands of couples AOS (many from VWP) and have zero issues, the few that do usually have some major red flag in their case that leads to the denial, not the VWP entry or any overstay.

Can you guarantee to this couple that things won't blow up in their face? Go ahead... make the guarantee! Otherwise, I suggest you not be so cavalier with someone else's life!

Ian

Feb 24th 2014, 10:10 am

#17

Pulaski

Joined: Dec 2001

Location: Dixie, ex UK

Posts: 52,558

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

I'm sorry but advising someone to go through a process that splits the couple apart and can take over a year to be processed is bad advice when they can make use of a perfectly legal, faster process (AOS) that would allow them to stay together during the process.

So long as the petitioner is a USC, the beneficiary entered legally and is not inadmissible due to some kind of criminal history AOS is just as 'guaranteed' as a K1/CR1 (they can be denied as well...)

Thousands of couples AOS (many from VWP) and have zero issues, the few that do usually have some major red flag in their case that leads to the denial, not the VWP entry or any overstay.

If you want to run the risk that's up to you, but advising someone else that "there is no risk" when that is factually incorrect, is unconscionable.

Feb 24th 2014, 10:13 am

#18

Noorah101

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Joined: Apr 2003

Location: Phoenix, Arizona

Posts: 58,687

Noorah101 has a reputation beyond repute

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

Thousands of couples AOS (many from VWP) and have zero issues, the few that do usually have some major red flag in their case that leads to the denial, not the VWP entry or any overstay.

Yes, that "red flag" exists when the Adjudicating Officer believes there was immigrant intent at the POE when the visit arrived on the VWP....further complicated by an overstay. There might not have been intent at the POE...but if the officer even thinks there might have been, the AOS can be denied.

Of course, whether a couple chooses to take that risk of AOS denial or not, is up to them. But it is in no way "guaranteed" to be approved. Personally, I'd rather spend 8 months apart and have less risk of a permanent ban from the USA. But that's just me.

See this link: http://britishexpats.com/forum/showthread.php?t=651746

Rene

Feb 24th 2014, 10:16 am

#19

Jerni

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Joined: Dec 2013

Posts: 250

Re: Same Sex Marriage.

Quote:

Originally Posted by ian-mstm

AOS from the VWP is allowed only if there was no intent to stay to adjust status upon entry to the US. You tell me... how do you prove there was no intent? Answer = you can't! End of story. There is also an additional complication here - she has already overstayed on the VWP, which sends the clear message that US immigration rules and regulations are of little value.

Overall, your advice is seriously flawed, and should be ignored. Why? Because if the AOS is denied for any reason whatsoever there is absolutely no recourse. Any rights she might otherwise have had were signed away when she entered the US on the VWP.

Ian

I disagree. As I posted elsewhere intent alone cannot be used as a reason to deny AOS. Plus, it is not up to the applicant to prove there was no intent, it is up to USCIS to prove there was. As you say that is extremely difficult which is why you'll find next to zero cases of AOS being denied solely due to intent.

As long as she is married to a USC, overstay is irrelevant.

There are also many hundreds of successful AOS from VWP on sites like VisaJourney. Trakkit has a 70 page thread on same-sex couples adjusting again many from long term VWP overstays.

As I posted, OP should have a consult with a lawyer, it would be unfair to themselves to dismiss AOS due to some misinformation.

Feb 24th 2014, 10:17 am

#20

Michael

Lost in BE Cyberspace

Joined: Jun 2008

Location: San Francisco Bay Area

Posts: 10,678

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

Thousands of couples AOS (many from VWP) and have zero issues, the few that do usually have some major red flag in their case that leads to the denial, not the VWP entry or any overstay.

If there was "no risk", everybody would adjust status but yet thousands annually go the K-1/CR-1 route.

It also depends on which district they reside in. Several year ago, I believe 100% of people that entered on the vwp, overstayed, and adjusted status in the 9th district were denied the adjustment of status. I'm not sure how the 9th district is currently handling vwp overstays.

Feb 24th 2014, 10:21 am

#21

Jerni

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Joined: Dec 2013

Posts: 250

Re: Same Sex Marriage.

Quote:

Originally Posted by Pulaski

If you want to run the risk that's up to you, but advising someone else that "there is no risk" when that is factually incorrect, is unconscionable.

Where did I say there was no risk?

Feb 24th 2014, 10:22 am

#22

Noorah101

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Joined: Apr 2003

Location: Phoenix, Arizona

Posts: 58,687

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

Plus, it is not up to the applicant to prove there was no intent, it is up to USCIS to prove there was.

I disagree. USCIS does not have to prove there was intent. All the officer has to do is believe there was.

Quote:

As long as she is married to a USC, overstay is irrelevant.

I disagree again. Did you read the link I posted?

Quote:

As I posted, OP should have a consult with a lawyer...

I agree.

Rene

Feb 24th 2014, 10:24 am

#23

Jerni

Forum Regular

Joined: Dec 2013

Posts: 250

Re: Same Sex Marriage.

Quote:

Originally Posted by Michael

It was an office in San Diego and they were told to stop denying them by USCIS.

Feb 24th 2014, 10:24 am

#24

ian-mstm

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Joined: Aug 2002

Location: Kentucky

Posts: 38,865

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

I disagree.

I'm sure you do... I don't care! Your premise is faulty, therefore so are your conclusions.

Quote:

There are also many hundreds of successful AOS from VWP on sites like VisaJourney.

Respectfully, I suggest you have found the source of your faulty premise.

Ian

Feb 24th 2014, 10:26 am

#25

Jerni

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Joined: Dec 2013

Posts: 250

Re: Same Sex Marriage.

Quote:

Originally Posted by Noorah101

I disagree. USCIS does not have to prove there was intent. All the officer has to do is believe there was.

I disagree again. Did you read the link I posted?

I agree.

Rene

It's all in the USCIS Adjudicators Field Manual.

Feb 24th 2014, 10:31 am

#26

Noorah101

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Joined: Apr 2003

Location: Phoenix, Arizona

Posts: 58,687

Re: Same Sex Marriage.

Quote:

Originally Posted by Jerni

It's all in the USCIS Adjudicators Field Manual.

OK. Now that the OP has heard both sides of the coin, it is up to them to consult with an immigration attorney and follow the path they choose.

I'm closing this thread, as it will just become a back and forth pro-con VWP to AOS discussion, of which there are already plenty.

Rene
Moderator