Repeat visits to girlfriend in USA

Replies: 23 - Last Post: Dec 9, 2012 1:56 PM Last Post By: megaera

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Dec 3, 2012 5:30 PM
Posts: 24

Whether or not a particular application for Adjustment of Status is "illegal" or not is for USCIS to decide. In the OP's case I wouldn't recommend it, but the previous replies stating that one can't adjust on the VWP are factually incorrect. Additionally, entering on a B2 when he intends to marry and adjust status has the exact same fundamental legal issues as if he did it on the VWP (lying about his presumed immigrant intent). The only "right" ways to do what he wants are the K-1 or CR-1 route.

And yes there are plenty of reasons for why one eligible for the VWP should apply for a visa, but in the OP's circumstances (apparently unemployed and with an American girlfriend), he's likely to be rejected which will cause more headache if he wants to travel on the VWP in the future. To a consular official, his fact pattern screams "Will work illegally and/or try to adjust status."

Edited by: Powerlurker

bzookaj

Dec 3, 2012 6:15 PM
Posts: 5,224

Whether or not a particular application for Adjustment of Status is "illegal" or not is for USCIS to decide

Actually, given that they are tasked with enforcing the law, it is for them to decide.
However, case law does indicate that spouses may adjust status (I wish the State Department would put that on their website), assuming they are not under a removal order.

entering on a B2 when he intends to marry and adjust status has the exact same fundamental legal issues as if he did it on the VWP

You're allowed to marry on the VWP or B2. There is nothing wrong with that.
The issue arises with the intention to immigrate to the US.

And yes there are plenty of reasons for why one eligible for the VWP should apply for a visa, but in the OP's circumstances (apparently unemployed and with an American girlfriend), he's likely to be rejected which will cause more headache if he wants to travel on the VWP in the future. To a consular official, his fact pattern screams "Will work illegally and/or try to adjust status."

The OP has an issue, and that has been repeatedly noted.
But you made a general statement well beyond the scope of the OP's case. Your general statement is, as I said before, utter crap.

SoloHobo

Dec 3, 2012 6:43 PM
Posts: 9,914

Well when my wife was here from China on a MBA/Work Visa, she had a extra 30 days to use the Visa after it Expired, to be a Tourist and then leave, but the legal counsel we sought suggested we not raise eyebrows and inquiries and get married while she in the country as a Tourist, but on the MBA/Work Visa prior to its regular expiration date. So thats what we did.

tiltedflipcurves

Dec 3, 2012 6:52 PM
Posts: 899

Whether or not a particular application for Adjustment of Status is "illegal" or not is for USCIS to decide
. Actually, given that they are tasked with enforcing the law, it is for them to decide.

If I read right, you're both saying the same thing, but b is missing p's point. Which, I take is, is that it's not advocating illegality to suggest that someone put in an application that might be denied. It's not bad faith or illegal to submit a truthful application that will fail. If it doesn't meet standards, USCIS will say so, and it's not unreasonable to take an honest shot and count on them to sort it out.

nutraxfornerves

Dec 3, 2012 7:27 PM
Posts: 6,599

You cannot change to another status while you are in the US under the VWP. Period. From the US State Dept.

Visitors applying for entry under this program are allowed to remain 90 days (no extensions granted) and may not change their status.

From Customs & Border Protection

In addition, VWP visitors may not file an application to change status to an immigrant or another nonimmigrant classification or extend their stay beyond the 90-day timeframe.

There are a couple of exceptions. If there is an emergency (for example, you are hospitalized on day 89) you may be granted an extension. You can apply for a change of status if you seek political asylum.

bzookaj

Dec 4, 2012 5:52 AM
Posts: 5,224

You cannot change to another status while you are in the US under the VWP. Period.

That's what I thought, until I found Freeman v. Gonzales.

The good stuff:

Specifically, § 1255(c)(4) provides that a VWP visitor may seek to adjust her status to that of a permanent resident through an immediate relative petition, the procedure invoked by the Freemans. See Faruqi v. Dep’t of Homeland Security, 360 F.3d 985, 986-87 (9th Cir. 2004) (noting that VWP visitors are eligible “for adjustment of status . . . on the basis of either (1) an immediate relative petition or (2) an application for asylum.”); see also 8 C.F.R. § 245.1(b)(8).

nutraxfornerves

Dec 4, 2012 8:10 AM
Posts: 6,599

Interesting. And I vaguely remember running across that when looking up stuff about marrying while in the US on the VWP.

the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.

jayeonthrontree

Dec 9, 2012 12:16 PM
Posts: 129

In truth, are you planning to get married and stay in the USA? Because if you are, you're supposed to get a fiancee visa.
I did not - I came to the USA as a tourist, my guy proposed, and a few days later we were married. Adjustment in status was a snap, and a stamp to allow me to work happened immediately.
On previous trips, I had explained that I was visiting my boyfriend, and got a lot of questions. Helped that I had an excellent job at home, return tickets, credit cards and all. My story held up because it was true.
In your case, Immigration doesn't really care if someone will vouch for your reputation. It isn't that they're concerned that you're not a good guy - it's that you're a guy who's going to overstay.

Good luck,

megaera

Dec 9, 2012 1:56 PM
Posts: 15,791

This might be a daft question, but could she visit you in the UK next time? Or could you meet in a third country? My now husband (American) and I (British) did the LDR thing for more years than I care to think about, and used to alternate trips - US, UK, somewhere else - so that we had a reasonable amount of time together, but didn't visit one country so often that it rang alarm bells about sneaky immigration.

Alternatively, if you do want to get married and move to the US, then get a fiance visa for the next trip over, as others have said.