In looking at various postings from those who have applied for an AOS under the VWP, I still can't figure out why this loophole exists. Is it for people who come to the US under a fiance visa who get married and then Adjust Status - but that's not entry under the VWP.

So this option is made available to those who come to the US as aninnocent tourist, get seduced by a fantastic American, fall in love, get married, and then decide to do an AOS - leaving a good job behind in the UK?

Am I missing something here? It seems like the AOS is just a big carrot being dangled.

Well, I seem to have found an interesting answer to my question:

http://fpc.state.gov/documents/organization/10087.pdf

I didn't read the whole lengthy document, but the very first paragraphs seem to be talking about unauthorized aliens in the USA. Is that your scenario?

Rene

It doesn't have to be quite that dramatic (seduced, fantastic, fall in love, etc...) but yes. AOS is for those who came to the USA as a non-immigrant, who had no intention of remaining in the USA when they entered the USA.

It's all about one's intent at the time they enter the USA.

Rene

Rene's got it right. It's all about intent when the alien enters the US. At the AOS interview, the question becomes, "How can you prove you didn't intend to stay in the US?" Answer = you can't, insofar as it's impossible to prove a negative. At that point, your future depends solely on the officer's whim to either believe you or not. It's a risk. Some people have a high risk tolerance... others don't. Some people prefer not to gamble on their future... others throw caution to the wind.

It's all about risk tolerance... and the prospect of facing a possible lifetime ban from the US. Some people feel luckier than others.

Ian

I've always assumed it's for genuine changes of circumsrances, unexpected pregnancies, serious illnesses etc.

In other words, someone comes to the USA as a visitor, intending to leave within 90 days....and then decides to stay and adjust status later, after having arrived.

Same thing we are saying.

Rene

People are reading too much into this.

The visa waiver procedure did not come into existence until 1987 when the 1986 IRCA legislation took effect. And even then, it was just a "pilot program" which kept being renewed. [One year, the sunset actually took effect. Inasmuch as it was anticipated that the legislation would be renewed, INS simply instituted a policy of exercising its power to waive visas and not fining the airlines. For two months there were no summary exclusions possible] It was finally made permanent.

It must be borne in mind that the visa waiver was designed for countries [with the exception of Ireland] in which the overwhelming number of tourist admissions came to the US for tourism and actually left in a timely fashion. Even then, people from those countries would obtain visas with ease and they were valid "indefinitely" for multiple entries and were granted without charge.

It must be further borne in mind that a visa waiver admission is in the "B-1/2" categories. At that time, the concept of "preconceived intent" had been introduced as being a "negative discretionary factor" for adjudicating adjustment applications. However, the existence of a US Citizen spouse is a strong countervailing "positive discretionary factor." See Matter of Cavazos, 17 I&N Dec 215 (BIA 1980) as later clarified by Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981). [WARNING -- there is a fine line between preconceived intent and misrepresentation and many of the minions of the Dark Forces do not recognize that line].

When the VW was instituted, the statutory language included a parenthetical exception of the VW restrictions for "immediate relatives." [BTW, the IR classification also includes parents and minor children.] It strikes me that Congress was simply being consistent with existing law on adjustment of B-1/2 aliens.

As of late, several people tried litigation to obtain green cards based upon marriage. Most of these cases were not "clean." The statute is pretty clear that the courts had no jurisdiction to address the VW adjustments in the first place.

However, there is a rubric that "bad facts make for bad law." The 9th Circuit case of Karla Freeman had incredibly sympathetic facts which lead to a published case in her favor. To be quite frank, Freeman was badly reasoned. Every other Court of Appeals faced with the issue declined to follow Freeman. Rather than outright overruling Freeman, the 9th Circuit "distinquished" it in the Momeni case. However, this was based upon "jurisdictional" grounds of right to review -- if one got married and filed for adjustment within 90 days of admission.

To lawyers who litigate in the courts, it is known that jurisdiction is often the primary issue. In fact, in all Federal litigation, it is required that jurisdiction be addressed. Unfortunately, some of the minions of the Dark Forces read a substantive component into Momeni. So some applicants were confronted with the local DHS offices saying "Sorry, the courts say we cannot give you a green card and must remove you." It is quite common for the Dark Forces to read a judicial "may" as "must."

Bottom line -- quite often, it is the "law of unintended consequences" that kicks in.

It's for people who are in my situation (I know I've left my story around the forums quite a bit, but I think it's really important for some people to gain knowledge from it) - I had been in a long distance relationship for years with an American citizen (I'm a UK citizen), and one time when I came over to visit, he asked me to marry him.
Now in this situation it can be very dangerous - we decided to go the visa express route and adjust my status from the visa waiver program and were extremely lucky that we were approved. I would not recommend this to anyone, because if you are denied, you have no chance of an appeal and face being barried from America for however many years. Going through the process and knowing that is terrifying - trust me, it would be so much easier to use a spousal or fiance visa to obtain residency.

Yes - I've been becoming more educated on the AOS via VWP risks. We meet with some professionals next week.

I have yet to see a post where the couple was denied the AOS and then Banned for life. I'm curious to see the statistics...not that I ever could.

Folks don't tend to come back and post their bad news.

There is this post from 2008. The poster in this one was in Sacramento.

It has become quite problematical in San Diego.