Overstayed Visa Waiver married to U.S Citizen

[JimVaPhuong 4,863]

When you marry an US Citizen, and apply for Adjustment of Status (I130, I485) the law says very clear that all "penalties" are waived (if you are an VWP overstay that is), ofcourse, you have to had applied before being detained and even though it's very clear that "just by applying you have not changed status", that's where all of this started messing everything up... ( the cases taken to court related to this type of problems)

You are correct on your point of view also but I know that I am also correct on mine... what you described is what I called "the trick under their hat".

Your point of view is what they starting using to deny applications recently in some Districts, my point of view it's what other thousands of people have used for years to get thru the system without being deported. They do contradict each other.

I agree with the thinking that the law will be turning to a non wanted direction on this type of cases since it's very clear that they are trying to get rid of anybody out of status... the numbers speak for themselves.

That's actually not what the law says. It says that you must not have worked illegally or have unlawful immigration status at the time you submit the AOS application, but that specifically does not apply to an immediate relative of a US citizen. There is nothing about penalties being waived or anything being forgiven. If that were the case you could marry a US citizen after years of unlawful status, and then leave the US without facing any sort of ban because your overstay "penalty" would have been waived. Of course, that doesn't happen. They simply cannot use the overstay as the basis for denying AOS to an immediate relative of a US citizen. It doesn't affect any other aspect of immigration law.

The AOS in these cases is not being denied because of the overstay, so there's no conflict in the law. What is happening is a change in policy and not a change in law. USCIS has always had the authority to order the deportation of anyone who overstays a VWP entry. Up until relatively recently, they were using their discretion not to do so when someone submitted an AOS application after marrying a US citizen. This is changing.

Whether or not this is unwanted probably depends on who you ask. Many people, myself included, think that allowing an immediate relative of a US citizen to adjust status while merely visiting the US has too much potential for abuse. I also believe it provides an unfair advantage to people who happen to be from countries where it is relatively easy to get a visa or other entry pass to the United States, while forcing everyone else to go through the process to obtain a fiancee or spousal visa. USCIS, and their prior incarnation INS, has always taken the same position. Prior to precedent cases in the 1980's, they would routinely deny adjustment of status if they believed their was preconceived intent to immigrate. Those precedent cases took that option away from them. Now they need evidence of material misrepresentation to go along with the preconceived intent.

As I mentioned before, the VWP provides the highest possible potential for abuse because it allows someone to skip the visa process entirely.

Personally, I would like to see the law modified so that an immediate relative of a US citizen can only adjust status in the US if they've already obtained the appropriate type of visa, or if there is a compelling humanitarian reason not to make them return to their home country and go through the visa process.

[Lisa011 6]

Does anyone know how the 10yr bar works ?

Are you banned from entering the u.s or are you banned from leaving the country you came from?

[Deputy Purple 1,294]

Does anyone know how the 10yr bar works ?

Are you banned from entering the u.s or are you banned from leaving the country you came from?

Banned from entering the US

[JimVaPhuong 4,863]

Does anyone know how the 10yr bar works ?

Are you banned from entering the u.s or are you banned from leaving the country you came from?

You're banned from entering the US. The US government has no control over your movements outside the US.

[newlyweds2010 208]

You're banned from entering the US. The US government has no control over your movements outside the US.

and it wouldn't care less.

[Used to be broken 143]

That's actually not what the law says. It says that you must not have worked illegally or have unlawful immigration status at the time you submit the AOS application, but that specifically does not apply to an immediate relative of a US citizen. There is nothing about penalties being waived or anything being forgiven. If that were the case you could marry a US citizen after years of unlawful status, and then leave the US without facing any sort of ban because your overstay "penalty" would have been waived. Of course, that doesn't happen. They simply cannot use the overstay as the basis for denying AOS to an immediate relative of a US citizen. It doesn't affect any other aspect of immigration law.

The AOS in these cases is not being denied because of the overstay, so there's no conflict in the law. What is happening is a change in policy and not a change in law. USCIS has always had the authority to order the deportation of anyone who overstays a VWP entry. Up until relatively recently, they were using their discretion not to do so when someone submitted an AOS application after marrying a US citizen. This is changing.

Whether or not this is unwanted probably depends on who you ask. Many people, myself included, think that allowing an immediate relative of a US citizen to adjust status while merely visiting the US has too much potential for abuse. I also believe it provides an unfair advantage to people who happen to be from countries where it is relatively easy to get a visa or other entry pass to the United States, while forcing everyone else to go through the process to obtain a fiancee or spousal visa. USCIS, and their prior incarnation INS, has always taken the same position. Prior to precedent cases in the 1980's, they would routinely deny adjustment of status if they believed their was preconceived intent to immigrate. Those precedent cases took that option away from them. Now they need evidence of material misrepresentation to go along with the preconceived intent.

As I mentioned before, the VWP provides the highest possible potential for abuse because it allows someone to skip the visa process entirely.

Personally, I would like to see the law modified so that an immediate relative of a US citizen can only adjust status in the US if they've already obtained the appropriate type of visa, or if there is a compelling humanitarian reason not to make them return to their home country and go through the visa process.

Its kind of a mixed bag of mixed messages on this .. on the one hand they are denying the AOS cases and at the same time working with USCIS on Ombudsman recommendations to adjudicate I130 and I601 together prior to the petitioner leaving.

While I think you are right that there is a distinct advantage that some exploit on the AOS after VWP .. I don't see how they could have difficulty proving "preconcieved intent to immigrate" when the person never leaves and applies for AOS, with the exception of very short romances.. which would then have difficulty with bona fides issues.

[sachinky 464]

Allowing an immediate relative of a US citizen to adjust status while merely visiting the US has too much potential for abuse. I also believe it provides an unfair advantage to people who happen to be from countries where it is relatively easy to get a visa or other entry pass to the United States, while forcing everyone else to go through the process to obtain a fiancee or spousal visa. USCIS, and their prior incarnation INS, has always taken the same position. Prior to precedent cases in the 1980's, they would routinely deny adjustment of status if they believed their was preconceived intent to immigrate. Those precedent cases took that option away from them. Now they need evidence of material misrepresentation to go along with the preconceived intent.

As I mentioned before, the VWP provides the highest possible potential for abuse because it allows someone to skip the visa process entirely.

Personally, I would like to see the law modified so that an immediate relative of a US citizen can only adjust status in the US if they've already obtained the appropriate type of visa, or if there is a compelling humanitarian reason not to make them return to their home country and go through the visa process.

Right on.

[Rebecca Jo 1,962]

Personally, I would like to see the law modified so that an immediate relative of a US citizen can only adjust status in the US if they've already obtained the appropriate type of visa, or if there is a compelling humanitarian reason not to make them return to their home country and go through the visa process.

Why?

[JimVaPhuong 4,863]

Why?

I thought I explained it in my previous post. Allowing someone to adjust status while merely visiting the US provides an unfair advantage to people from countries where it's relatively easy to get a visitor visa or use the VWP. I don't believe US immigration law should provide any unintended advantage to people from first world countries, while providing a disadvantage to people from third world countries. It's bad enough that the consulates use their discretion to do this. I believe that everyone who wants to immigrate to the US should have to go through the same visa process.

[Rebecca Jo 1,962]

I thought I explained it in my previous post. Allowing someone to adjust status while merely visiting the US provides an unfair advantage to people from countries where it's relatively easy to get a visitor visa or use the VWP. I don't believe US immigration law should provide any unintended advantage to people from first world countries, while providing a disadvantage to people from third world countries. It's bad enough that the consulates use their discretion to do this. I believe that everyone who wants to immigrate to the US should have to go through the same visa process.

Jim, you know as well as I the reasons consulates in third world countries use "their discretion". It's because their discretion is backed up by years of evidence of visa fraud via marriage. Even if all aliens wishing to live in marital bliss in the US had to seek permission from abroad to do so, you'll not change the fact that consular processing for beneficiaries from low-fraud countries won't be easier.

[JimVaPhuong 4,863]

Jim, you know as well as I the reasons consulates in third world countries use "their discretion". It's because their discretion is backed up by years of evidence of visa fraud via marriage. Even if all aliens wishing to live in marital bliss in the US had to seek permission from abroad to do so, you'll not change the fact that consular processing for beneficiaries from low-fraud countries won't be easier.

I don't dispute the reasons that consulates in third world countries make it difficult. In fact, I think it's entirely justified. I do, however, think it's unfortunate for those who are not primarily motivated by a desire to immigrate, which I believe is a substantial percentage even in the highest fraud countries. I certainly don't think that providing an overly difficult hurdle at the consulates in high fraud countries justifies providing a loophole that essentially constitutes a fast-track green card process for people in low fraud countries. When a consular officer interviews someone for a tourist visa they aren't usually evaluating the bonafides of a relationship with a US citizen, and when someone travels to the US on the Visa Waiver Program there is no consular interview at all.

The division of authority in the immigration process presumes that a consular officer, who lives and works in the beneficiary's country, might be better at sniffing out immigration fraud than a desk jockey at USCIS because they would have an inherent understanding of what constitutes a "reasonable person" in that country when evaluating the bonafides of a relationship. Allowing someone to adjust status while visiting the US says that someone is implicitly trusted enough to skip the entire visa process simply because of the country they come from. This might be justified if there were virtually no visa fraud in VWP countries, but this isn't the case.

[Brother Hesekiel 2,235]

If I had any say in this, I would allow a sponsor to step in for a visitor. The sponsor has to be a USC and put a $1K refundable deposit down for getting a B2 visa issued for the beneficiary. If the visitor leaves in time, the deposit is returned. If the visitor does not leave as promised once the I-94 expires, the sponsor is charged with a $20K fine, payable to the United States Government. If the sponsor fails to pay, he or she is going to jail until the visitor is found and has been deported.

[Rebecca Jo 1,962]

I don't dispute the reasons that consulates in third world countries make it difficult. In fact, I think it's entirely justified. I do, however, think it's unfortunate for those who are not primarily motivated by a desire to immigrate, which I believe is a substantial percentage even in the highest fraud countries. I certainly don't think that providing an overly difficult hurdle at the consulates in high fraud countries justifies providing a loophole that essentially constitutes a fast-track green card process for people in low fraud countries. When a consular officer interviews someone for a tourist visa they aren't usually evaluating the bonafides of a relationship with a US citizen, and when someone travels to the US on the Visa Waiver Program there is no consular interview at all.

The division of authority in the immigration process presumes that a consular officer, who lives and works in the beneficiary's country, might be better at sniffing out immigration fraud than a desk jockey at USCIS because they would have an inherent understanding of what constitutes a "reasonable person" in that country when evaluating the bonafides of a relationship. Allowing someone to adjust status while visiting the US says that someone is implicitly trusted enough to skip the entire visa process simply because of the country they come from. This might be justified if there were virtually no visa fraud in VWP countries, but this isn't the case.

Well, Jim, I don't think the VWP was created to facilitate a fast-track green card process. Historically I think it was created to spur tourism amongst friendly nations? I'd wager you that nearly all who enter on the VWP go back to their homeland. If we were belly-up at a bar having this conversation, I'd bet you a drink that 99% of them go home, and wouldn't live here if you paid 'em. And I would further wager you that you're off in your assertions about marriage fraud from VWP countries. Sure, it happens. But there has to be a low rate of fraud, period, for a nation to be on our favored list. Countries have lost the privilege in the past.

Aliens who have been legally inspected can adjust to permanent residence based upon marriage to a USC. The law doesn't say just VWP entrants. It says anyone who has been legally inspected and who otherwise has not violated the terms of their visa and/or entry. VWP entrants are supposed to go home. We've advised people on these forums for years that adjusting from the visa waiver was a "do you feel lucky" scenario, firstly because of the intent of VW travel itself, and secondly because the right to appeal an adverse decision has been waived. You and several others on this community are recently loudly talking about recent adverse rulings against VWP entrants who attempt to adjust via marriage. Your cries are not without merit, but my research finds others not quite so willing to sound the death knell - yet. I give to you two links from the place I go when I really want to get smart about immigration - britishexpats.com.

http://britishexpats.com/forum/showthread.php?t=651746

http://britishexpats.com/forum/showthread.php?t=680996

At any rate, the law, at the moment, allows this type of adjustment without an alien having to go through a spousal/fiance visa process. As long as we have states who will issue a marriage license to a "blended" USC/non-USC couple, I don't see the federal government being able to pull off a restriction that says such couples must have approval from the Feds to marry. And I do think this is what would have to happen for you to get your wish. First-world European countries (such as Great Britain)have been able to pull off this kind of restriction, but they don't have those pesky little things like states rights and the Constitution. I think you'd have a hard time making it fly that a legally inspected alien shouldn't be allowed to adjust to permanent resident in order to live in marital bliss with his US partner. Uninspected, yes. But a legal entrant? No I don't think so.

Finally, let it be known that I am no proponent of this method of "immigration" to the US. We had the visa waiver on our side but still opted for a visa. I really dislike it when I see questions on this board by persons who intend to circumvent the system. I hate it because I see it as a strike against the visa waiver program itself, and I fear some sort of repercussion from DHS down the road. I really, really, really dislike the fact that aliens adjusting via marriage from within our borders don't need to produce a police report from their home country. I've seen "visa waiver couples" (for lack of better terminology) who filed for a visa but whose dreams of a life in the US were dashed because of the alien's minor criminal past - something they could have avoided by adjusting from within. So suffice it to see that I'd like to see the playing field leveled for persons who choose this path. But I don't believe forcing married couples to process from abroad is - well, necessary. I mystically and naively think such a policy would fly in the face of what is good about personal freedoms in the US.

[JimVaPhuong 4,863]

Well, Jim, I don't think the VWP was created to facilitate a fast-track green card process. Historically I think it was created to spur tourism amongst friendly nations? I'd wager you that nearly all who enter on the VWP go back to their homeland. If we were belly-up at a bar having this conversation, I'd bet you a drink that 99% of them go home, and wouldn't live here if you paid 'em. And I would further wager you that you're off in your assertions about marriage fraud from VWP countries. Sure, it happens. But there has to be a low rate of fraud, period, for a nation to be on our favored list. Countries have lost the privilege in the past.

Aliens who have been legally inspected can adjust to permanent residence based upon marriage to a USC. The law doesn't say just VWP entrants. It says anyone who has been legally inspected and who otherwise has not violated the terms of their visa and/or entry. VWP entrants are supposed to go home. We've advised people on these forums for years that adjusting from the visa waiver was a "do you feel lucky" scenario, firstly because of the intent of VW travel itself, and secondly because the right to appeal an adverse decision has been waived. You and several others on this community are recently loudly talking about recent adverse rulings against VWP entrants who attempt to adjust via marriage. Your cries are not without merit, but my research finds others not quite so willing to sound the death knell - yet. I give to you two links from the place I go when I really want to get smart about immigration - britishexpats.com.

http://britishexpats.com/forum/showthread.php?t=651746

http://britishexpats.com/forum/showthread.php?t=680996

At any rate, the law, at the moment, allows this type of adjustment without an alien having to go through a spousal/fiance visa process. As long as we have states who will issue a marriage license to a "blended" USC/non-USC couple, I don't see the federal government being able to pull off a restriction that says such couples must have approval from the Feds to marry. And I do think this is what would have to happen for you to get your wish. First-world European countries (such as Great Britain)have been able to pull off this kind of restriction, but they don't have those pesky little things like states rights and the Constitution. I think you'd have a hard time making it fly that a legally inspected alien shouldn't be allowed to adjust to permanent resident in order to live in marital bliss with his US partner. Uninspected, yes. But a legal entrant? No I don't think so.

Finally, let it be known that I am no proponent of this method of "immigration" to the US. We had the visa waiver on our side but still opted for a visa. I really dislike it when I see questions on this board by persons who intend to circumvent the system. I hate it because I see it as a strike against the visa waiver program itself, and I fear some sort of repercussion from DHS down the road. I really, really, really dislike the fact that aliens adjusting via marriage from within our borders don't need to produce a police report from their home country. I've seen "visa waiver couples" (for lack of better terminology) who filed for a visa but whose dreams of a life in the US were dashed because of the alien's minor criminal past - something they could have avoided by adjusting from within. So suffice it to see that I'd like to see the playing field leveled for persons who choose this path. But I don't believe forcing married couples to process from abroad is - well, necessary. I mystically and naively think such a policy would fly in the face of what is good about personal freedoms in the US.

I'm not remotely suggesting that the VWP be done away with, nor the ability for a foreigner to marry in the US. What I'm suggesting is that everyone who wants to immigrate to the US based on marriage to a US citizen should be required to go through the same application and interview process, and people who are fortunate enough to be able to get a visitors visa or use the VWP should not get special consideration.

When Congress allowed that an immediate relative of a US citizen could apply for adjustment of status if they were in the US they intended it to be used in exceptional circumstances. They were clear that it was not simply an alternative to the immigrant visa process. This is why most non-immigrant visas and entry passes have a statutory requirement that the alien have residence in a foreign country that they have no intention of abandoning. INA section 101 mentions this requirement 8 separate times for various different classes of visas. The BIA effectively took the teeth out of this requirement by saying that the preconceived intent was indeed a violation of immigration law, but not serious enough on it's own to warrant denying adjustment of status to an immediate relative. This precedent opened to the door to abuse of section 245(a). Even attorneys routinely recommend that aliens from a country where a B2 is relatively easy to obtain simply come to the US, marry, and adjust status, rather than bothering with the immigrant visa process. This puts the CBP in the position of having to detect the intent at the time of entry, because if CBP doesn't stop them then they are pretty much scott free once they've been admitted.

Again, my complaint with the current system is not so much that it's being abused, which it clearly is. I honestly believe that it should be faster and easier for any US citizen to bring their fiancee or spouse to the US. I just don't believe it's fair that the de-facto fast track route to a green card is available only to those fortunate enough to live in particular countries. I realize that it wasn't the intention of Congress to create a fast track route to a green card, but that is precisely what this has become. That, in itself, would not be a bad thing if the process weren't selective based solely on the immigrant's country of origin.

[Rebecca Jo 1,962]

I'm not remotely suggesting that the VWP be done away with, nor the ability for a foreigner to marry in the US. What I'm suggesting is that everyone who wants to immigrate to the US based on marriage to a US citizen should be required to go through the same application and interview process, and people who are fortunate enough to be able to get a visitors visa or use the VWP should not get special consideration.

When Congress allowed that an immediate relative of a US citizen could apply for adjustment of status if they were in the US they intended it to be used in exceptional circumstances. They were clear that it was not simply an alternative to the immigrant visa process. This is why most non-immigrant visas and entry passes have a statutory requirement that the alien have residence in a foreign country that they have no intention of abandoning. INA section 101 mentions this requirement 8 separate times for various different classes of visas. The BIA effectively took the teeth out of this requirement by saying that the preconceived intent was indeed a violation of immigration law, but not serious enough on it's own to warrant denying adjustment of status to an immediate relative. This precedent opened to the door to abuse of section 245(a). Even attorneys routinely recommend that aliens from a country where a B2 is relatively easy to obtain simply come to the US, marry, and adjust status, rather than bothering with the immigrant visa process. This puts the CBP in the position of having to detect the intent at the time of entry, because if CBP doesn't stop them then they are pretty much scott free once they've been admitted.

Again, my complaint with the current system is not so much that it's being abused, which it clearly is. I honestly believe that it should be faster and easier for any US citizen to bring their fiancee or spouse to the US. I just don't believe it's fair that the de-facto fast track route to a green card is available only to those fortunate enough to live in particular countries. I realize that it wasn't the intention of Congress to create a fast track route to a green card, but that is precisely what this has become. That, in itself, would not be a bad thing if the process weren't selective based solely on the immigrant's country of origin.

Well, you know, if it weren't for politics, war, and allegiances, we probably wouldn't have the visa waiver, which leads to the "fast track".

I don't consider the BIA rulings you refer to as "taking the teeth" out of the INA. The intent of IRCA in 1986 was to cut down on fraudulent immigration to the US. It seems to me this particular batch of case law takes the common sense approach that if the marriage looks legitimate to the AO, then no fraud was perpetrated. Conditional residency was supposed to take out any "fast track to a greencard". I personally think there is far more abuse of the system at this stage.

I used to get really stirred up about people who adjusted via the visa waiver. I guess it just doesn't bother me anymore. As I see it, they are still following the legal path. It's a different path than we took, but so what? By far I believe they take a riskier path than we did. So that's on them and not me. I don't consider the "speed" they gain to be worth my angst.

I will put the smack-down on anybody I believe is plotting it.