British Expats

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-   -   VWP Entry and Adjustment of Status (https://britishexpats.com/forum/us-immigration-citizenship-visas-34/vwp-entry-adjustment-status-692675/)

Shellytime Nov 7th 2010 11:36 pm

VWP Entry and Adjustment of Status
 
Hello everyone!

My UKC spouse is in the US and although he had every intention of leaving, we would like to try to keep him here permanently. We have been married for 2.5 years and my UK Visa just recently expired. His 90 days on VWP will expire on 12-1-10. If we applied for his AOS and I-130 within the next two days, what are the chances that he would be alright to stay while the Visa app is being processed? If he has to go back to the UK, how long will he have to stay over there before coming back in on VWP?

Any help is greatly appreciated thank you!

meauxna Nov 7th 2010 11:40 pm

Re: VWP Entry and Adjustment of Status
 
I am just wondering what info you gleened from the thread you posted into (I split your post out for discussion)?

Why didn't you file when you were living in the UK and decided to relocate?
What was your plan for immigrating your husband to the US? He was going to leave but now he's not?
There is some back story missing; it may have an impact on your choice.

Noorah101 Nov 7th 2010 11:46 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 8967806)
My UKC spouse is in the US and although he had every intention of leaving, we would like to try to keep him here permanently. We have been married for 2.5 years and my UK Visa just recently expired. His 90 days on VWP will expire on 12-1-10. If we applied for his AOS and I-130 within the next two days, what are the chances that he would be alright to stay while the Visa app is being processed?

You should have a consultation with an immigration attorney if you want to try adjusting his status from the VWP. There are risks involved that you should be aware of. Also, it's not a visa application that will be being processed if you go that route...it will be an adjustment of status.


If he has to go back to the UK, how long will he have to stay over there before coming back in on VWP?
That depends on when he goes back to the UK, and whether he incurs an overstay in the USA or not. It depends where you are in the process, when he goes back to the UK. If he does not overstay, and goes back to the UK, general rule of thumb is to stay outside the USA more than inside.

Rene

Shellytime Nov 7th 2010 11:52 pm

Re: VWP Entry and Adjustment of Status
 
Sorry if I have posted into the wrong thread - My children and I left the UK a year after we moved there. We were miserable and I could not find work in my field. We did not apply for his Visa because he had a year's solid work over there which he could not walk away from. A few months after we left, the company lost the contracts that they had, so he was out of work for what was supposed to be only a few months. He is here now on VW, leaving earlier then the 90 days because he was supposed to go back to work in the UK to complete the work that had been put on hold. Only just recently we have found that again everything is on hold...this is why we are only trying to do something now.

Our intention was to apply for his Visa after the first of next year, as we were told that he would not be able to enter the US while it was in process. We are prepared for time apart again if we have to, but with the serious change in circumstance we were hoping we could change that by applying for his AOS now.

Noorah101 Nov 7th 2010 11:58 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 8967823)
Our intention was to apply for his Visa after the first of next year, as we were told that he would not be able to enter the US while it was in process.

That is incorrect. He CAN visit the USA while the visa process is ongoing.


We are prepared for time apart again if we have to, but with the serious change in circumstance we were hoping we could change that by applying for his AOS now.
As long as you get legal counsel and you understand the problems if his AOS gets denied. Otherwise, I highly suggest having him return before the 90 days is up, file the I-130 tomorrow, and stick to the original plan.

Rene

ian-mstm Nov 8th 2010 12:39 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 8967806)
If we applied for his AOS and I-130 within the next two days, what are the chances that he would be alright to stay while the Visa app is being processed?

If you apply for AOS (Adjustment of Status), he won't actually be getting a visa (a visa is an entry document... he's already here). He will be adjusting his status from inside the US. You will need to file an I-130, I-864, and a G-325A. He will need to file an I-485, I-131, I-765, and a G-325A. You'll also need all the supporting documents that go with these forms, including photos and a medical (though, not 100% sure about the medical). If you can get this all together in 2 days, then I take my hat off to you! But, at any rate, you must file before his 90 days are up... and I certainly wouldn't wait that long!

You need to be aware that if his adjustment is denied for any reason whatsoever, he has NO right whatsoever to appeal that decision, and being married to a USC or having USC children will not help him at all. He will become immediately removable from the US.

Ian

Noorah101 Nov 8th 2010 12:42 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by ian-mstm (Post 8968769)
and a medical (though, not 100% sure about the medical).

Yes, he will need a full medical done, and the sealed results need to be included in the AOS packet.

Rene

Shellytime Nov 8th 2010 3:14 pm

Re: VWP Entry and Adjustment of Status
 
Thank you all for all of your feedback - I contacted an immigration attorney today just to better understand the potential circumstances that a denial could cause. I don't know if I would be able to get everything in order in time, and no matter what happens, we will NOT have him overstay his 90 days.

Now it's just getting the medical scheduled and seeing how quickly we can make that happen :blink:

ian-mstm Nov 8th 2010 4:51 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 8969012)
I don't know if I would be able to get everything in order in time, and no matter what happens, we will NOT have him overstay his 90 days.

Just so you know, there was a recent memo that indicated that if the AOS package was received after day 90, the adjustment would be summarily denied... so, if you don't think you can get everything to them in time, best not to take the chance.

Ian

crosscountryrider Nov 8th 2010 6:52 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 8969012)
Thank you all for all of your feedback - I contacted an immigration attorney today just to better understand the potential circumstances that a denial could cause. I don't know if I would be able to get everything in order in time, and no matter what happens, we will NOT have him overstay his 90 days.

Now it's just getting the medical scheduled and seeing how quickly we can make that happen :blink:

Hi,
also if you don't get the medical in time it's not a desaster.

You will need to sent all other AOS forms in time . Without a medical you will

receive a RFE and your case will stop processing BUT WILL NOT BE DENIED.

This can buy you some time to fill send your package within the 90 days.

But you have to send the medical results to USCIS within 30 days after you

received the RFE.

Good Luck
CCR

Noorah101 Nov 8th 2010 7:00 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by crosscountryrider (Post 8969307)
Hi,
also if you don't get the medical in time it's not a desaster.

You will need to sent all other AOS forms in time . Without a medical you will

receive a RFE and your case will stop processing BUT WILL NOT BE DENIED.

This can buy you some time to fill send your package within the 90 days.

I'm not so sure. I don't know for 100% sure, but it could be that USCIS does not consider the AOS package to be properly filed until it has all its components intact...which means responding to the RFE for the missing medical. If USCIS does not have a properly filed AOS package (including the medical) within the 90-day limit of the VWP, it *could* be denied. They won't know this, I imagine, until the interview of course.

Rene

meauxna Nov 8th 2010 7:03 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by crosscountryrider (Post 8969307)
Hi,
also if you don't get the medical in time it's not a desaster.

You will need to sent all other AOS forms in time . Without a medical you will

receive a RFE and your case will stop processing BUT WILL NOT BE DENIED.

This can buy you some time to fill send your package within the 90 days.

But you have to send the medical results to USCIS within 30 days after you

received the RFE.

Good Luck
CCR

Wow, I would be careful of that one, since the medical is initial evidence.

Considering the changes in *practice* that we've been seeing (remember, the law itself has not changed) I'd be wary of relying on this interpretation.
Sorry, just a more conservative approach.

crosscountryrider Nov 8th 2010 7:08 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Noorah101 (Post 8969321)
I'm not so sure. I don't know for 100% sure, but it could be that USCIS does not consider the AOS package to be properly filed until it has all its components intact...which means responding to the RFE for the missing medical. If USCIS does not have a properly filed AOS package (including the medical) within the 90-day limit of the VWP, it *could* be denied. They won't know this, I imagine, until the interview of course.

Rene

Hi Rene,
it maybe changed but when I did my AOS from VWP my attorney told me that this will work. But by any means if the OP can make it in time even better.

I am also not a lawyer and don't know the latest policies.

Kind regards
CCR

Shellytime Jun 8th 2011 4:24 pm

Re: VWP Entry and Adjustment of Status
 
Hello again, and thanks to everyone for the very valuable input and information that you have provided.

In a nutshell, we did not apply on his last visit due to the time constraints, so he went back to the UK. He has come over again on the VWP, as we were having some problems and weren't sure if we were going to move forward with the Visa app at all. After a bit of time, we have worked out our issues and know that the stress of another separation may be the end of us, so we just want to file now and get things moving. He has gone for his medical, and I am filling out the remaining forms now (I-130, I-485, I-765, G-235A and I-864) and will be sending them out tomorrow. With all of this I am trying to get my head around all of the fee's that must go out and found the insert below on the USCIS website.

"Please note that, if you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization on Form I-765 and/or advance parole on Form I-131. You may file these forms together. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence of the filing of an I-485. If you filed your Form I-485 prior to July 30, 2007, you must pay the fees associated with Forms I-765 and/or I-131 when you file."

Also, my husband did not bring his BC, and his family in the UK is not able to find it. Is this an absolute requirement for the I-485?

meauxna Jun 8th 2011 4:33 pm

Re: VWP Entry and Adjustment of Status
 
Have you contacted an immigration attorney yet? You said in early November that "no matter what happens, we will NOT have him overstay his 90 days." Have you researched how to approach your case based on where you live?


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