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 8th 2010 12:36 am

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 8th 2010 12:40 am

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 8th 2010 12:46 am

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 8th 2010 12:52 am

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 8th 2010 12:58 am

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 1:39 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 1:42 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 4:14 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 5:51 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 7:52 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 8:00 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 8:03 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 8:08 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 5:24 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 5:33 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?

Noorah101 Jun 8th 2011 5:35 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9419480)
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."

There is a fee for the I-130. There is a fee for the I-485. There is a biometrics fee. There is no fee for the I-131 or I-765 if filed together with the I-485.


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?
Do the instructions on either the I-130 or I-485 ask for it?

Rene

Wolfy Jun 8th 2011 5:36 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 8969012)
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:

This is a very wise choice! And attempting to adjust status is not even worth the heartbreak if refused, I would file or at least collect all the info you require for the I-130 petition whilst he is there. :thumbsup:

Noorah101 Jun 8th 2011 5:37 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by meauxna (Post 9419504)
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?

It seems he didn't overstay. From what I can tell, he went home on time on his last VWP visit, then came over again on a new VWP visit, which he is on currently, and is now adjusting status within the current 90-day visit (not really a wise thing to do).

But I totally agree, they really should consult with an immigration attorney before filing anything, if they haven't done so already.

Rene

Shellytime Jun 8th 2011 5:44 pm

Re: VWP Entry and Adjustment of Status
 
When I spoke with the immigration attorney he stated that there really was no need to have one because we have been married more then 2 years and it should be rather cut and dry, so no, I did not proceed further with him. He did not overstay his 90 days the last time, nor is he in breach of doing so this time. As for researching my area, no, I haven't gotten that far yet I'm afraid. I thought that I was to submit all of the forms at once, including the medical, to the Chicago lockbox... is that wrong?

Shellytime Jun 8th 2011 5:56 pm

Re: VWP Entry and Adjustment of Status
 
There are individual fee's for each form on the USCIS website, including the G-325A. For the I-485 and G-325A the total is $1070 from what I have read so far.

Sorry, I can't seem to get the quote feature right - user error most likely ;)

Noorah101 Jun 8th 2011 6:02 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9419568)
There are individual fee's for each form on the USCIS website, including the G-325A. For the I-485 and G-325A the total is $1070 from what I have read so far.

Sorry, I can't seem to get the quote feature right - user error most likely ;)

There is no fee for the G-325A.

Go to www.uscis.gov, Forms, and look at the cover page for the I-130 and I-485. The fees are listed there.

Don't look at the individual fees for the I-131 and I-765, as there are no fees for that when included in an AOS package, which is what you're doing.

Not sure what you're referring to when you say "researching my area", but you are correct that all the forms, fees, and medical get sent in one package to Chicago. The address is on the I-485.

Rene

Shellytime Jun 8th 2011 9:45 pm

Re: VWP Entry and Adjustment of Status
 
The I-131 (Application for Travel) is required as well for the AOS packet? Does that allow him to go state to state or into Canada or something? Sorry, this one confuses me.

Research my area was in reference to this post:

"meauxna
Have you researched how to approach your case based on where you live?

There is a USCIS office in Detroit, which I assumed I may have to use at some point during the process, unless I misunderstood what was being said, which is definitely a possibility.

Noorah101 Jun 8th 2011 10:03 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9420085)
The I-131 (Application for Travel) is required as well for the AOS packet? Does that allow him to go state to state or into Canada or something? Sorry, this one confuses me.

The AP document allows him to leave the USA without abandoning the AOS process. He doesn't need AP to travel state to state, but he would need it for Canada, yes.

If he has overstayed at all, he shouldn't use AP or leave the USA at all (depending on the length of overstay).


There is a USCIS office in Detroit, which I assumed I may have to use at some point during the process, unless I misunderstood what was being said, which is definitely a possibility.
The AOS package gets mailed to the lockbox in Chicago. Eventually you will have an AOS interview at your local office in Detroit.

Rene

Shellytime Jun 8th 2011 10:36 pm

Re: VWP Entry and Adjustment of Status
 
So even if he has no plans of leaving while awaiting approval for AOS, it's a nice to have, and if there is no fee when filing it with the other documents, it makes sense to just do it. Thank you again for your help!

S Folinsky Jun 9th 2011 12:41 am

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Noorah101 (Post 9420124)
If he has overstayed at all, he shouldn't use AP or leave the USA at all (depending on the length of overstay).

Rene: In the exercise of extreme paranoia and conservatism, several immigration attorneys I respect quite highly take the position that use of AP is something to be avoided. One attorney I know says he does not like position taken by our brethren in the bar that AP is "like candy."

I can't say that I disagree.

That said, those self-same attorneys believe that there is one circumstance where the person's position is arguably improved -- the VWP entrant.

Can't say that I disagree with that also.

No advice is given nor intended. But those lawyers are several who I really respect and are worth listening to.

meauxna Jun 9th 2011 1:27 am

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9420085)
Research my area was in reference to this post:

"meauxna
Have you researched how to approach your case based on where you live?

There is a USCIS office in Detroit, which I assumed I may have to use at some point during the process, unless I misunderstood what was being said, which is definitely a possibility.

I posted that because different immigration districts are handling VWP/AOS cases slightly differently from each other.

The question is more 'to file or not to file' but it seems you're past that.
All combined filings go to the one same address.

Shellytime Jun 9th 2011 3:47 pm

Re: VWP Entry and Adjustment of Status
 
Would I enter my children (hubby's step children) for number 17 on the I-130?

"List husband/wife and all children of your relative"

ian-mstm Jun 9th 2011 4:16 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9421992)
Would I enter my children (hubby's step children) for number 17 on the I-130?

No. The question specifies: "... all children of your relative". You are not your relative... you are you! :)

Ian

Shellytime Jun 9th 2011 4:23 pm

Re: VWP Entry and Adjustment of Status
 
:lol: All of this paperwork and I'm beginning to forget who I am...I just didn't know if step-children would be considered relatives of my relative :confused:

S Folinsky Jun 9th 2011 4:40 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by ian-mstm (Post 9422074)
No. The question specifies: "... all children of your relative". You are not your relative... you are you! :)

Ian

Notionally speaking, the petitioner's children are the beneficiary's step-children. That said, there would be "no harm, no foul" in this situation IMHO.

blackg Jun 9th 2011 11:47 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9421992)
Would I enter my children (hubby's step children) for number 17 on the I-130?

"List husband/wife and all children of your relative"

As it says Allien relatives, which means beneficiary own children, not the petitioner biological children in other words put your step children names, date of birth and the country. Putting thier names there does not mean that they will be immigrating to the US based on this single I-130 form.

ian-mstm Jun 10th 2011 12:40 am

Re: VWP Entry and Adjustment of Status
 

Originally Posted by blackg (Post 9422984)
As it says Allien relatives, which means beneficiary own children, not the petitioner biological children in other words put your step children names...

Umm... they are not her stepchildren, and she is not the alien... or the beneficiary.

Ian

Shellytime Jun 10th 2011 12:57 am

Re: VWP Entry and Adjustment of Status
 
Currently I just have my name listed as his wife, as there is no biological connection between him and my children... is that sufficient??

blackg Jun 10th 2011 9:13 am

Re: VWP Entry and Adjustment of Status
 

Originally Posted by ian-mstm (Post 9423070)
Umm... they are not her stepchildren, and she is not the alien... or the beneficiary.

Ian

Thought the OP husband "beneficiary" have children from previous relationship. In this case the OP just need to put her name "SPOUSE" and no need to include her children.

Regards.

S Folinsky Jun 10th 2011 1:21 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9423088)
Currently I just have my name listed as his wife, as there is no biological connection between him and my children... is that sufficient??

General comment: the question about spouse and children are there for informational purposes only -- it identifies either "following to join" relatives or possible future beneficiaries of the person to immigrate off the I-130.

It pays to remember that the I-130 is a GENERIC relative visa petition.

To be pedantic, the definition of "child" in the Immigration & Nationality Act is not limited to biological children. In fact, some biological children are not within the definition of "child" for immigration purposes. Step-children are within the immigration definition of "child."

The immigration definition of "child" is not congruent with the common definition of child. OP is perfectly reasonable in not putting her own children in that question despite the fact that they do fit within the immigration definition of "child" of her spouse.

So, in the words of the late, great Chick Hearn: "No harm, no foul." We may close the refrigerator door on this one.

Shellytime Jun 14th 2011 1:55 am

Re: VWP Entry and Adjustment of Status
 
Consider the refrigerator closed on that subject :thumbup:

Next question: Between the I-130, I-131, I-485 and I-864 there are 3 of the 4 that require passport photos, and although I am assuming that one set of 2 photos of each of us is required, but I just want to be sure.

And one more question: Hubby does not have an I-94 with the new electronic registration, but his I-94 information is requested on multiple forms... what to do?

I know I ask a lot of questions -- sorry :( But it sure is nice to have some great folks that know what their talking about.

Michellica

Noorah101 Jun 14th 2011 2:11 am

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9430843)
Next question: Between the I-130, I-131, I-485 and I-864 there are 3 of the 4 that require passport photos, and although I am assuming that one set of 2 photos of each of us is required, but I just want to be sure.

Treat each application as a separate application. Provide as many photos as that application requires, then move on to the next application.


And one more question: Hubby does not have an I-94 with the new electronic registration, but his I-94 information is requested on multiple forms... what to do?
"none".

Rene

S Folinsky Jun 14th 2011 2:15 am

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9430843)
Consider the refrigerator closed on that subject :thumbup:

Next question: Between the I-130, I-131, I-485 and I-864 there are 3 of the 4 that require passport photos, and although I am assuming that one set of 2 photos of each of us is required, but I just want to be sure.

And one more question: Hubby does not have an I-94 with the new electronic registration, but his I-94 information is requested on multiple forms... what to do?

I know I ask a lot of questions -- sorry :( But it sure is nice to have some great folks that know what their talking about.

Michellica

It sounds like that the "Jello is still jiggling and butter is still soft." :D However, the I-485 has long been used for people who do not have I-94's and the answer is "none."

"The trouble is all inside your head she said to me. The answer is easy if you take it logically. I'd like to help you in your struggle to be free." Paul Simon.

Shellytime Jun 14th 2011 5:27 pm

Re: VWP Entry and Adjustment of Status
 
On the I-485 instructions it asks for a copy of my marriage certificate - would a photo copy be sufficient?

Noorah101 Jun 14th 2011 6:01 pm

Re: VWP Entry and Adjustment of Status
 

Originally Posted by Shellytime (Post 9432285)
On the I-485 instructions it asks for a copy of my marriage certificate - would a photo copy be sufficient?

Yes. Bring the original to your AOS interview.

Rene


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