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Lisa011

Overstayed Visa Waiver married to U.S Citizen

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I came to the U.S when i was 12 years old with my parents, I've stayed in the U.S ever since

I recently got married to a u.s citizen we have been together for 5 years, We just filed my papers for me to become permanent resident and will soon recieve our interview appointment

I'm very scared that I will be denied? and get deported

I have a clean record never been arrested

If i were to be deported and voluntarly leave what are my options as far as my husband petitioning for me to come back to U.S

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I think i can relieve you,

my neighbors have a simular situation.. He´came from argentina when he was 5 years old, overstayed the visa ever since.

Since you are a child, you cant make your own decisions, they might let you get away with it.thats what happened to him, he married a us girl and is immigrated now,..

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Hi! Welcome to VJ!

Come on over to this forum (for people adjusting FROM non-K visas) and you'll find lots of discussion on the issue of VWP (Visa Waiver Program)and overstay.

http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

The short story is that we're not sure what USCIS is doing with VWP overstays. Things are changing as we speak and what used to be the norm is not the norm any more. Normally, any overstay is forgiven when married to a US citizen, but VWP people waive their right to a hearing on entering and are considered immediately deportable once they overstay (this may be different for you because you were 12 years old). USCIS always "could" just deport VWP overstays and not adjudicate any petitions, but they didn't actually start to act on that ability until the last few years.

I must say that I am sorry for your situation. It is not your fault your parents brought you here at 12. But I am just going to stick with facts here. There is still a chance that you will be approved at your interview; it depends right now on which state you live in. Some recent cases of VWP overstay have been approved, and others have been put on indefinite hold pending some further clarification from the higher-ups at USCIS.

If you do get denied (I sincerely hope you don't) then you husband would file a CR-1/IR-1 visa and have to file 2 waivers, one for the deportation you would get, and another for the overstay. (Your time here from 12 years to 18 years does not count, but I am assuming you are older than 18).

Every case is unique, and I don't know what the decision will be, especially considering your age upon entry. A lawyer could argue that you did not knowingly waive your right to a hearing when you were 12 years old.

Hope the AOS goes well! Good luck!

Edited by Harpa Timsah

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Lisa,

"When you were 12 years old," doesn't tell us much. Maybe you are now 52 years old now, like me, in which case the VWP didn't exist when you were 12, back in 1970.

The key here is to know a) your current age and b) whether you arrived with a B2 or as part of the Visa Waiver Program.

Edited by Just Bob

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Thank you everyone for the positive posts

its a big relief to hear about others peoples cases similar to my situation that have been approved.

@Harpa Timsah- Do you know what USCIS offices in the u.s have been denying people with this situation?

I came to the us when i was 12 in 2000

now i'm 21 years old,

I honestly did not know i was here illegally until about 17 years of age.

I came here as a child Graduated school here, the U.S is the only home i know of being that i came here at such early age.

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Thank you everyone for the positive posts

its a big relief to hear about others peoples cases similar to my situation that have been approved.

@Harpa Timsah- Do you know what USCIS offices in the u.s have been denying people with this situation?

I came to the us when i was 12 in 2000

now i'm 21 years old,

I honestly did not know i was here illegally until about 17 years of age.

I came here as a child Graduated school here, the U.S is the only home i know of being that i came here at such early age.

I know exactly how you feel. My family and I moved here in 1991. I'm 30 now. I got married a year and a half ago and recently filed for AOS. We had our interview today and unfortunately for us, the IO didn't make a decision. She had a problem about me working when I'm not supposed to be. Our lawyer explained to her that it's supposed to be forgiven but she didn't budge. She wants to discuss it with her supervisor first. So now we are waiting for the results. I honestly don't know what's going to happen. Our lawyer told us not to worry but how can we not? Just like you, the U.S is the only home I know. I grew up here. But its out of our hands now. It really depends on who you get on the day of your interview. Good luck on everything. Try to stay positive and don't lose hope. That's all I've been doing. :)

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Just to recap:

12 to 18 does not matter.

18 you started accumulating illegal presence so you now have a 10 year bar if you leave and seek to re enter.

Until recently adjusting in such circumstances would not have been a major issue. Things have changed, not something to contemplate without a lawyer. You may be lucky, you may be not.

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I know exactly how you feel. My family and I moved here in 1991. I'm 30 now. I got married a year and a half ago and recently filed for AOS. We had our interview today and unfortunately for us, the IO didn't make a decision. She had a problem about me working when I'm not supposed to be. Our lawyer explained to her that it's supposed to be forgiven but she didn't budge. She wants to discuss it with her supervisor first. So now we are waiting for the results. I honestly don't know what's going to happen. Our lawyer told us not to worry but how can we not? Just like you, the U.S is the only home I know. I grew up here. But its out of our hands now. It really depends on who you get on the day of your interview. Good luck on everything. Try to stay positive and don't lose hope. That's all I've been doing. :)

Yea, Great Advise. Que Sera Sera.

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Adverse factors, such as overstay, preconceived intent, unauthorized working, are not "forgiven" automatically, they are taken into account when they determine the persons case. (at their discretion)

In exercising its discretion, USCIS will balance the adverse and favorable factors concerning the alien's application.

To many adverse factors and they can deny the application. In most cases, one adverse factor does not rise to the level of getting a denial - however there are some cases where one adverse factor was enough ( such as "intent to use the marriage for immigration purposes only") - but you really have to work to get that.

Personally - I do not like using the word "forgiven" in this way, I prefer "overlooked" :whistle:

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Adverse factors, such as overstay, preconceived intent, unauthorized working, are not "forgiven" automatically, they are taken into account when they determine the persons case. (at their discretion)

In exercising its discretion, USCIS will balance the adverse and favorable factors concerning the alien's application.

To many adverse factors and they can deny the application. In most cases, one adverse factor does not rise to the level of getting a denial - however there are some cases where one adverse factor was enough ( such as "intent to use the marriage for immigration purposes only") - but you really have to work to get that.

Personally - I do not like using the word "forgiven" in this way, I prefer "overlooked" :whistle:

I agree that "forgiven" is not the correct word to use. It implies that the intending immigrant has somehow offended the immigration officer, and now needs the forgiveness of the IO in order to get a green card. I'd go even farther then "overlooked" and say that it's "irrelevant".

Normally, being out of status or working without authorization would prevent someone from adjusting status - dead stop. The INA specifically says these will disqualify an applicant out of hand. The INA also says that these specific disqualifiers don't apply to an immediate relative of a US citizen. It really has nothing to do with whether the IO has the authority to forgive or not forgive. The INA says it's not a relevant factor.

Now, if USCIS is changing their interpretation of the INA such that overstay and/or working without authorization are no longer irrelevant, but simply not an automatic disqualifier, then that would be news indeed. A great many K1's don't file for AOS until after their I-94 has expired because there has always been an assumption that the overstay could not be used to deny their AOS.

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