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Overstayed Visa Waiver married to U.S Citizen

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Filed: K-1 Visa Country: Vietnam
Timeline

Sorry I didn't mean to use the term "forgiven". I didn't know the correct term. I'm so nervous about our case. I hope we get it approved. :(

Hi.

Your situation is different than the OP's. Your family came on a tourist visa and overstayed. If your AOS is denied then you have the option of using the appeals process, first through USCIS and then through the federal court system. The OP came on the visa waiver program and overstayed. There is a "no contest" provision for VWP entrants. They can't appeal any decision by an immigration officer. If their AOS is denied then the IO doesn't need to issue a recommendation for deportation and then wait out the appeals process - the IO can issue an order of deportation on the spot, and the OP can't appeal it.

Of course, this means that they have only once chance to adjust status, but the consequences are more far reaching than that. Several federal courts of appeal have determined that a VWP who overstays is immediately deportable since any immigration officer can issue the order to deport them - no review and no appeal. Some USCIS field offices have been refusing to accept an AOS application from VWP's with an overstay, and just ordering them to be deported. This can't happen to you because you entered with a visa. The appeals process is available to you.

12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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  • 3 weeks later...
Filed: AOS (pnd) Country: Uruguay
Timeline

If you overstayed and never left the country, you will not have a problem, being overstayed under a visa waiver program has a lot o benefits when it comes to getting your GC - the ONLY way to get them is by marrying a US Citizen if u are an overstayed VWP-

Now, its a whole different thing if you are "caught" by immigration: you have no rights at all, NOT EVEN voluntary departure, yes, they will take you in front of a judge but the judge will tell you what i just told you, he will dictaminate your sentence - deportation with 10 years of penalty- and then you will have to wait to be "removed".

The fact that you were 12 and didnt know your situation until 17 does not affect you at all now since you stayed knowing or not for over 180 days after ur 18 bday, so dont even bring it up, there is no need for it.

You are a very common case, and as i said, the only "solution" for overstayed VWP is getting married to an US Citizen.

The technical word that has wasted half of this forum posting in not "forgiven", "overlooked" or "irrelevant", the word is "waived"...

I know a lot of cases like yours, myself being one of them.

The good part about all of this: you mentioned that ur family came with you, well, once you become a Citizen, it takes about 6 months to get the papers for your parents...

Chill, it will be about 3 to 5 months for you to be "good" once you apply...

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Filed: K-1 Visa Country: Wales
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You might want to read the other posts

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Filed: AOS (pnd) Country: Uruguay
Timeline

No need to, i have known this since i arrived here over 15 years ago and i have wasted a lot of money on Lawyers to get the same answers. This is the same thing i am going thru right now and i know I am 1000% correct about it. I also know at least 10 to 15 people -friends- who has gone thru the same process.

CORRECTION: when i said "if you get 'caught' by immigration" i meant detained (arrested)

The answer to the second part "how can i come back if i get deported": at this point this will not happen to you unless they determine your marriage is fraudulent (fake) but in case u would like to know: the alien will be removed, given a penalty, etc, once outside the USA the husband/wife has to apply for a "pardon" based on "extreme hardship" - meaning the us citizen has to prove certain things such as emotional or economical hardship, etc- then, once that its approved - it takes about 6 to 10 months- the whole 485, 130 and 765 process starts.... This is a "rough" description of the process but it gives u a general idea, It will be at least a year to a year and a half before getting back to the states...

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  • 3 weeks later...
Filed: Country: Germany
Timeline

Hello

I came to the U.S when I was 12 on a Visa waiver from germany and have stayed in the u.s ever since

I'm now 22 years old married to a U.S Citizen, We filled out all the papers for The USCIS for Adjustment of status thru marriage to U.S Citizen

but just as my attorney was going to send these papers out He asked if i was 100% positive that I want to go thru with this. There has been recent denials to Visa waiver overstays

I'm on Pins and Needels right now, I just dont know what to do? there is a Chance that i Could get denied and have to get deported if that happens I will get the 10 yr ban Which i hear is really difficult to get a Hardship letter approved.

I Have a Clean record and Graduated school in the U.S maybe these are some good things for getting approved

So i dont know if I should go thru with this. or just wait and see if the law changes..

PLEASE let me know if you or any you know has gone thru this or is going thru this right now.

THANK YOU!!!

11/09/2010- Sent out I485, I-130, I-765 Applications Chicago Office11/14/2010- USCIS recieved my applications11/18/2010- Received Receipts11/29/2010- Received my biometrics appointment scheduled for 12/17/201012/17/2010- Biometrics Done01/07/2011- Interview Scheduled for Feb 7th.01/21/2011- Received Email saying EAD card production01/26/2011- Received Email again saying EAD card production01/31/2011- Received EAD Card in the Mail02/07/2011- AOS Interview - Green Card Approved!!!!02/08/2011- Received Email Card/Document Production11/30/2012- Mailed out I-75112/07/2012- Received NOA12/11/2012- Received Biometric Appointment letter

12/28/2012- Biometric Appointment

05/28/2013 - Approval Letter Recieved

06/19/13- 10 Year Green Card Recieved !!!! :)

04/25/2014- Mailed out N-400 Application

05/02/2014 - Recieved email from USCIS

05/05/2014-NOA Letter

05/23/2014- Biometrics Appointment

05/28/2014- Text/Email notification In Line for Interview

07/16/2014- Text/Email Scheduled for interview

07/21/2014- Text/Email Placed in line for interview scheduling. very odd scheduled for interview and then placed back in line again

07/22/2014- Text/Email Scheduled for Interview
07/28/2014- Received interview letter
08/26/14- Interview Appointment/ Citizenship test ( APPROVED :D )

08/27/14- Scheduled for Oath Ceremony

09/16/14- Oath Ceremony :goofy::dance:

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Filed: Country: Germany
Timeline

Hello

I came to the U.S when I was 12 on a Visa waiver from germany and have stayed in the u.s ever since

I'm now 22 years old married to a U.S Citizen, We filled out all the papers for The USICS for Adjustment of status thru marriage to U.S Citizen

but just as my attorney was going to send these papers out He asked if i was 100% positive that I want to go thru with this. There has been recent denials to Visa waiver overstays

I'm on Pins and Needels right now, I just dont know what to do? there is a Chance that i Could get denied and have to get deported if that happens I will get the 10 yr ban Which i hear is really difficult to get a Hardship letter approved.

I Have a Clean record and Graduated school in the U.S maybe these are some good things for getting approved

So i dont know if I should go thru with this. or just wait and see if the law changes..

PLEASE let me know if you or any you know has gone thru this or is going thru this right now.

THANK YOU!!!

11/09/2010- Sent out I485, I-130, I-765 Applications Chicago Office11/14/2010- USCIS recieved my applications11/18/2010- Received Receipts11/29/2010- Received my biometrics appointment scheduled for 12/17/201012/17/2010- Biometrics Done01/07/2011- Interview Scheduled for Feb 7th.01/21/2011- Received Email saying EAD card production01/26/2011- Received Email again saying EAD card production01/31/2011- Received EAD Card in the Mail02/07/2011- AOS Interview - Green Card Approved!!!!02/08/2011- Received Email Card/Document Production11/30/2012- Mailed out I-75112/07/2012- Received NOA12/11/2012- Received Biometric Appointment letter

12/28/2012- Biometric Appointment

05/28/2013 - Approval Letter Recieved

06/19/13- 10 Year Green Card Recieved !!!! :)

04/25/2014- Mailed out N-400 Application

05/02/2014 - Recieved email from USCIS

05/05/2014-NOA Letter

05/23/2014- Biometrics Appointment

05/28/2014- Text/Email notification In Line for Interview

07/16/2014- Text/Email Scheduled for interview

07/21/2014- Text/Email Placed in line for interview scheduling. very odd scheduled for interview and then placed back in line again

07/22/2014- Text/Email Scheduled for Interview
07/28/2014- Received interview letter
08/26/14- Interview Appointment/ Citizenship test ( APPROVED :D )

08/27/14- Scheduled for Oath Ceremony

09/16/14- Oath Ceremony :goofy::dance:

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If you do a search in Adjustment to Green card (Tourist) section, you will see threads of people that have gone through the process after overstaying a Visa Waiver and successfully adjusted. You will also find threads of people who did not successfully adjust.

Your lawyer is right. There is no guarantee that you will be approved and if you are not then you will be ordered to be deported with no right of appeal.

At this time you dont have much of a choice. I mean you can hope that there is a comprehensive immigration bill that will allow you to adjust freely with a forgiveness for overstaying the VWP but I dont know how likely that is.

Where are you located? What office is your local office?

Apparently some offices have had a memo stating that all AOS from Visa Waivers will be denied.

I honestly think it depends on what district you are in.

Sorry I couldnt help more but I am certain others will.

03/09/2011 AOS Application Sent.
03/11/2011 (Day 0) Application Received
03/16/2011 (Day 7) NOA 1 (Text Email)+ (Checks Cashed)
03/19/2011 (Day 10) Hard Copy of NOA 1
03/28/2011 (Day 19) Biometrics letter 4/8/2011
04/08/2011 (Day 30) Successful Biometrics for I-765/I-485
05/13/2011 (Day 65) EAD received in the mail
05/14/2011 (Day 66) Email confirming EAD approved (Case updated online TOUCH)
05/20/2011 (Day 72) SSN In the Mail.

09/08/2011 (Day 200 ) Email notification of Interview.
10/11/2011 Interview at 26 Federal Plaza, NY!
Interviewed and Am expecting RFEs!
10/13/2011 (Day ***) Received RFE-- Requesting that I provide documentation to prove I was never married in Uk or Illin
02/11/2012 (Day ***) Service request..Told its being reviewed by supervisor

24th March 2012!!!!!!!!!!! Email notifiying me of CARD IN PRODUCTION
03/26/2012 (Day 376) Emails confirming that my I-130 and I-485 have been approved.

4/2/2012 Green Card In Hand!

Unbelievable that my journey took this long but Im thankful

Next Stop Premed...Yup!

3/24/2014 Application for conditions to be removed

9/22/2014 APPROVED without interview.

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I've seen more folks get their waivers approved, versus denied. I think that since you were a minor when you arrived has a lot to do with it. Most of the denials were for adults who over stayed. Adjusting due to marriage is normally a sure fire approval, and I would say a solid 99% of the applications on here have had the overstay forgiven. Your lawyer, if he/she is a GOOD one, wouold know your chances best. Check out the AOS forum on this site, and check out other's experiences. You can see what apps are being denied, and which are being approved. Good luck!

IR-1/CR-1 Visa

Event Date

Service Center : California Service Center

Consulate : Manilla, Philipines

Marriage (if applicable): 2010-02-28

I-130 Sent : 2010-06-15

I-130 NOA1 : 2010-06-19

I-130 RFE :

I-130 RFE Sent :

I-130 Approved : 2010-08-03

NVC Received : 2010-08-10

Received DS-3032 / I-864 Bill : 2010-08-17

Pay I-864 Bill 2010-09-01

Receive I-864 Package : 2010-09-18

Return Completed I-864 : 2010-09-21

Return Completed DS-3032 : 2010-09-25

Receive IV Bill : 2010-10-05

Pay IV Bill : 2010-10-06

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Adjusting due to marriage is normally a sure fire approval, and I would say a solid 99% of the applications on here have had the overstay forgiven. Your lawyer, if he/she is a GOOD one, wouold know your chances best. Check out the AOS forum on this site, and check out other's experiences. You can see what apps are being denied, and which are being approved. Good luck!

This isn't true. Recently there have been a number of denials to VWP entrants who have an overstay. It's reckless to say otherwise. http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

To the OP: Yes, you could be approved. You might also be denied. If you are denied then you will have a 10 year ban and cannot appeal the decision. If you leave the country at any time (regardless of whether you try to adjust) you will automatically have a 10 year ban. If you are caught and are deported, you will have a 10 year ban. If you don't do anything, you will continue to live here illegally and will always have the stress of that on your shoulders. Make sure you weigh all the pros and cons before you decide. Realize that you are not guaranteed an approval, but you aren't guaranteed a denial either.

K-1

I-129F NOA1 : June 1, 2010

I-129F NOA2 : June 28, 2010

Interview Date : Sept 28, 2010

Wedding: Apr 16, 2011

AOS

Approved : July 25, 2011

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I was unable to edit my comment.

I just wanted to give you some more information.

This is an article of a man in NJ who wasn't allowed to adjust his status due to the VWP overstay BUT UCIS allowed him to adjust even after he had been arrected and jailed.

AOS After Overstay NJ

Six out of the Twelve circuits in the USA have ruled that VWP are not able to fight deportation once UCIS have decided that your application will be denied AND you will be deported.

In the Third Circuit, Citizenship and Immigration Services will no longer approve green cards based on marriage if the application is made more than 90 days after the foreign spouse entered on a visa waiver, officials said.

However the same article did note the following

But on April 22, a decision by the United States Court of Appeals for the Third Circuit in a separate case changed the legal landscape for such couples in New Jersey, Pennsylvania, Delaware and the Virgin Islands. Lawyers say the van Sanders are among thousands of couples who could be adversely affected by the decision, which leaves the foreign spouses no defense against deportation if immigration authorities, at their discretion, decide to expel them.

The decision echoes and sharpens recent rulings in 6 of the 12 regional circuits across the country (but not the one that covers New York), holding that after a 90-day stay, foreigners who enter the country under the visa-waiver program cannot fight summary deportation based on their marriages to American citizens.

Also you came at the age of 12. Who signed the visa waiver? Did you sign or your parents?

03/09/2011 AOS Application Sent.
03/11/2011 (Day 0) Application Received
03/16/2011 (Day 7) NOA 1 (Text Email)+ (Checks Cashed)
03/19/2011 (Day 10) Hard Copy of NOA 1
03/28/2011 (Day 19) Biometrics letter 4/8/2011
04/08/2011 (Day 30) Successful Biometrics for I-765/I-485
05/13/2011 (Day 65) EAD received in the mail
05/14/2011 (Day 66) Email confirming EAD approved (Case updated online TOUCH)
05/20/2011 (Day 72) SSN In the Mail.

09/08/2011 (Day 200 ) Email notification of Interview.
10/11/2011 Interview at 26 Federal Plaza, NY!
Interviewed and Am expecting RFEs!
10/13/2011 (Day ***) Received RFE-- Requesting that I provide documentation to prove I was never married in Uk or Illin
02/11/2012 (Day ***) Service request..Told its being reviewed by supervisor

24th March 2012!!!!!!!!!!! Email notifiying me of CARD IN PRODUCTION
03/26/2012 (Day 376) Emails confirming that my I-130 and I-485 have been approved.

4/2/2012 Green Card In Hand!

Unbelievable that my journey took this long but Im thankful

Next Stop Premed...Yup!

3/24/2014 Application for conditions to be removed

9/22/2014 APPROVED without interview.

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This isn't true. Recently there have been a number of denials to VWP entrants who have an overstay. It's reckless to say otherwise. http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

To the OP: Yes, you could be approved. You might also be denied. If you are denied then you will have a 10 year ban and cannot appeal the decision. If you leave the country at any time (regardless of whether you try to adjust) you will automatically have a 10 year ban. If you are caught and are deported, you will have a 10 year ban. If you don't do anything, you will continue to live here illegally and will always have the stress of that on your shoulders. Make sure you weigh all the pros and cons before you decide. Realize that you are not guaranteed an approval, but you aren't guaranteed a denial either.

Your lawyer, if he/she is a GOOD one, wouold know your chances best.

That's why I said the above. I was just stating that from past experience on here. MOST not ALL have been approved.

IR-1/CR-1 Visa

Event Date

Service Center : California Service Center

Consulate : Manilla, Philipines

Marriage (if applicable): 2010-02-28

I-130 Sent : 2010-06-15

I-130 NOA1 : 2010-06-19

I-130 RFE :

I-130 RFE Sent :

I-130 Approved : 2010-08-03

NVC Received : 2010-08-10

Received DS-3032 / I-864 Bill : 2010-08-17

Pay I-864 Bill 2010-09-01

Receive I-864 Package : 2010-09-18

Return Completed I-864 : 2010-09-21

Return Completed DS-3032 : 2010-09-25

Receive IV Bill : 2010-10-05

Pay IV Bill : 2010-10-06

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Filed: K-1 Visa Country: Vietnam
Timeline

This is a hot button topic on this forum right now, mainly because the policy does not appear to be uniform at all USCIS field offices. The responses you get are going to be informed opinion, at best.

You are technically subject to deportation right now. Any US immigration officer could issue an order to deport you. You would not be able to appeal the deportation on any basis other than an asylum application. Even filing an AOS application would not stop the deportation - this much has been made abundantly clear in numerous court rulings.

Before you can make an informed decision, you need to find out what your local USCIS field office has been doing with VWP overstays who try to adjust status. If your attorney has a lot of experience or stays in contact with other local attorneys then he should be able to tell you. If they have been routinely denying AOS petitions from VWP overstays then there's no reason to believe they won't do the same thing to you. If, on the other hand, they are approving some AOS petitions from VWP overstays then you don't really have anything to lose by trying. The worst that could happen is pretty much the same thing that would happen if ICE showed up at your door right now. The best is that your AOS would be approved.

If you do decide to submit an AOS petition then you should probably begin making plans for how you will handle it if the AOS is denied and you are ordered deported. Do you have somewhere you can live in your home country? Family or friends you can stay with? Your lawyer could also be helping your US citizen spouse begin preparing the hardship waiver request, or you might even consider hiring an attorney who specializes in these waiver requests.

Don't hold your breath waiting for the law to change. There will be no substantial changes in immigration law anytime soon. There isn't sufficient political will in Washington to make any changes right now. What may change are the policies for implementing the existing law, but right now those policies are shifting against you. Nearly half of the federal district appeals courts have already sided with USCIS in determining that a VWP overstay is immediately deportable. The only thing I could see that would reverse that trend is a Supreme Court decision, but it doesn't seem likely they would disagree with a substantial portion of the district courts.

12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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Filed: Other Timeline

Lisa,

I think I answered your question on Yahoo's immigration section a few days ago and referred you to the VJ forum. Do you still have that I-94W in your passport? Look at it and tell me what it reads.

There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all . . . . The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities, an intricate knot of German-Americans, Irish-Americans, English-Americans, French-Americans, Scandinavian-Americans or Italian-Americans, each preserving its separate nationality, each at heart feeling more sympathy with Europeans of that nationality, than with the other citizens of the American Republic . . . . There is no such thing as a hyphenated American who is a good American. The only man who is a good American is the man who is an American and nothing else.

President Teddy Roosevelt on Columbus Day 1915

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Filed: Country:
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Your lawyer, if he/she is a GOOD one, wouold know your chances best.

That's why I said the above. I was just stating that from past experience on here. MOST not ALL have been approved.

The problem is that in this case "VISA WAIVER PROGRAM OVERSTAY FILING FOR AOS" past experience has become irrelevant due to recent experience and Appeals Court rulings.

One year ago I would agree with you but today AOS from VWP Overstay is risky.

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AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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