Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.
Your wife can come here on the ESTA as a visitor intending to return home and while here change her mind and stay and file for adjustment of status. But clearly that is not the care because she came here on orders so it was with the intent to immigrate that she entered. That can create an issue of fraud and misrepresentation at her entry because she had already had her immigrant petition approved when she came here.
Matter of Cavazos, 17 I&N Dec.215 (BIA 1980)
That case held that the presumption of immigrant intent does not apply to immediate relatives if adjust ment is filed within 60 days.
However, that does not mean that the USCIS cannot look at other facts and they have many resources available to investigate whether there was a fraud or misrepresentation to the CBP when questioned at entry. So for example, if the CPB officer asked your father why he was coming and if he was going back home and he answered "yes" but had abandoned all his ties to his home country then the USCIS could consider his statements as being a misrepresentation or fraudulent. So the adjustment could be denied on that basis and not on the immigrant intent issue.
I don't see under her situation with having had the I-130 filed and approved in Germany to avoid the presumption of misrepresentation when she entered saying she was just coming for a visit.
They don't give her a break as a military spouse.
I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.