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Overstayed Visa Waiver married to U.S Citizen

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Depends on what type of immediate relative you are. A child of a US Citizen who has a claim to US citizenship through the parent who is in the US without the passport/Birthcertificate could be deported unless they can prove it but any ban would be futile as that child would be entitled to come right back in on a US passport.

AS A US CITIZEN (hence the US Passport), so I counter your point by stating that they are not deportable because they are a US Citizen not because they are the immediate relative of a US Citizen. This is an important difference.

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AS A US CITIZEN (hence the US Passport), so I counter your point by stating that they are not deportable because they are a US Citizen not because they are the immediate relative of a US Citizen. This is an important difference.

If a child is in the USA and has a claim to US Citizenship through father or mother, that child can walk into a postoffice with the parent and apply for a US passport. That child may have entered the US through a B1 visa or on the Visa Waiver program but he can STILL get his passport within the US as long as the parent is a USC who has spend the required time in the US.

But thats according to the state department. UCIS will try to say otherwise.

Ahhhh this was fun.

Thanks all

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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Filed: Country: Germany
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I live in IL does any one know is this is one of the states that are flat out denying all visa waiver overstays?

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: AOS (pnd) Country: Uruguay
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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!!!

Lisa, I am going thru this right now (i already have done my Biometrics and have to wait for the interview), my sister went thru it, her present boyfriend is getting her citizenship as we speak (he went thru the same situation) and my best friend -since childhood- is also getting his citizenship as soon as he gets the 600 something needed...guess what? he also came on a VWP, actually, we all came "on the same boat" and there was no problem for any of them.

If you would like to wait until I pass the interview to have another confirmation... I'll be glad to let you know of the outcome...

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I live in IL does any one know is this is one of the states that are flat out denying all visa waiver overstays?

That would be the 7th Circuit, but I don't know how they handling VWP Overstays, your Immigration Lawyer should know though...

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Filed: IR-1/CR-1 Visa Country: Belarus
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I live in IL does any one know is this is one of the states that are flat out denying all visa waiver overstays?

Illinois is the 7th circuit and the Bayo case which was mentioned earlier in this thread was decided by the 7th circuit.

BAYO Case Discussion

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Illinois is the 7th circuit and the Bayo case which was mentioned earlier in this thread was decided by the 7th circuit.

BAYO Case Discussion

Ouch! That's not good for you Lisa... Sorry.

If you would like to wait until I pass the interview to have another confirmation... I'll be glad to let you know of the outcome...

Your results don't matter to her unless you also live in Illinois...

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Filed: Country: Germany
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Ouch! That's not good for you Lisa... Sorry.

Your results don't matter to her unless you also live in Illinois...

I also heard that 9th circuit states are denying vwp

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: AOS (pnd) Country: Uruguay
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To everybody on this thread:

Situation: overstayed VWP married to a US citizen.

I have spoken to 2 different lawyers and they confirmed that they are denying this type of cases/applications in San Francisco and San Diego.

USCIS position to/answer to a "Lawyers Association" it's that they will be sending an "Official Memo to all Agencies" with the resolution for such cases.

At this point, I know for sure that the Miami office and the Charlotte, NC office are not denying, but I don't think the "official memo" it's gonna be good news. Both of the lawyers that I talked to told me that the best thing to do is to apply ASAP if you live close to an office where they are not denying them because there is not telling on when the "memo" will come out or what it will say...

This is a very new situation (started since july) that goes against their own laws, the trick that they have under their hat it's that the immigration officer's final decision cannot be appealed if you came on a VWP and overstayed, so even though they are going against the law, they "win"... both of these lawyers told me that since NOBODY has taken them to court, they can keep doing such things... And that if somebody does takes them to court, the court process will be a long one and during the whole course of such you will stay on under the same "status" situation.

Technically, under the current law, this type of cases can not be denied because of the VWP overstay, so there is a chance that such memo will be good news...

It's time to start praying...

Lisa: If I were you, I will call every lawyer you find on the yellowpages and ask them if immigration is denying cases with your situation where you will have your final interview at, if they are, move to Miami ASAP and apply...

Best of luck!!

Edited by raffy
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I also heard that 9th circuit states are denying vwp

The Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have published decisions on the Visa Waiver Program and eligibility for adjustment of status.

AILA Link

You can see what district you are in on this map :

US Districts

Or here

Wiki Info

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 is a very new situation (started since july) that goes against their own laws, the trick that they have under their hat it's that the immigration officer's final decision cannot be appealed if you came on a VWP and overstayed, so even though they are going against the law, they "win"... both of these lawyers told me that since NOBODY has taken them to court, they can keep doing such things... And that if somebody does takes them to court, the court process will be a long one and during the whole course of such you will stay on under the same "status" situation.

Technically, under the current law, this type of cases can not be denied because of the VWP overstay, so there is a chance that such memo will be good news...

You are incorrect to say that this goes against the law. One of the conditions of the VWP is that you waive your right to any appeal (which includes Judicial Review), THAT IS THE LAW they're using for the Denials. Also under the law once you are out of status you are immediately deportable, that is the law they're using to detain the VWP Overstayers if they attend an interview) and expedite their removal.

You can't challenge them in court as this has already been challenged and the Appeals Courts have agreed with USCIS. Any new challenges are being refused as the courts don't have jurisdiction per the already mentioned rulings that agree with USCIS's position on the VWP Overstay. The only hope is for one of the current cases to get to the US Supreme Court and have the existing rulings overturned.

Edited by Bob 4 Anna
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Filed: IR-1/CR-1 Visa Country: Belarus
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Technically, under the current law, this type of cases can not be denied because of the VWP overstay, so there is a chance that such memo will be good news...

It's time to start praying...

Best of luck!!

Here is where when I was reading the Bayo decision they were drawing the distinction at the 90 mark after entry on the VWP, in other words if you have gotten married and applied for AOS within the 90 day window before your VISA expired then they indicated it would not be a problem?

Of course in the OP case.. that question is not in play. If she had married within 90 days of her turning 18.. might have something to work with? .. just another twist :)

I think generally.. the direction USCIS is going in is not positive and driven by the fever of the public debate regarding immigration. Also its easy to get the numbers up for deportations in these types of cases since there is no legal recourse for the VWP folks.. so there is no impediment to quick deportation. I suspect if Republicans take the house and or senate things will get worse and not better in this regard.

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Filed: AOS (pnd) Country: Uruguay
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You are incorrect to say that this goes against the law. One of the conditions of the VWP is that you waive your right to any appeal (which includes Judicial Review), THAT IS THE LAW they're using for the Denials. Also under the law once you are out of status you are immediately deportable, that is the law they're using to detain the VWP Overstayers if they attend an interview) and expedite their removal.

You can't challenge them in court as this has already been challenged and the Appeals Courts have agreed with USCIS. Any new challenges are being refused as the courts don't have jurisdiction per the already mentioned rulings that agree with USCIS's position on the VWP Overstay. The only hope is for one of the current cases to get to the US Supreme Court and have the existing rulings overturned.

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.

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Filed: AOS (pnd) Country: Uruguay
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This lawyer also has copies of denials from USCIS on his website, so he's not making it up. People have been denied for VWP overstay. It's that simple.

I emailed today the Attorney who published the article and asked him this:

Mr. Jacob: I read an article that you published were it says that the San Diego office is denying cases were the applicant is married to an US citizen and is an overstayed VWP (stayed over 90 days).

Could you give me any information about this situation if is still happening, and could you tell me where do you have knowledge that its happening?

His answer was:

Sergio

My information is from several cases that I filed for my clients. We currently have 7 cases pending in San Diego 4 denied and the rest are still pending. The ones that were denied I appealed and the appeal is also pending. The current situation is that we are waiting for guidance from Washington as to how to handle such cases. Once they get the word they will decide how to act.

============================================

Jacob J. Sapochnick, LL.M, Attorney

Law Offices of Jacob J. Sapochnick, Immigration Lawyers

1552 Sixth Avenue, Suite 5

San Diego, CA 92101 U.S.A.

He basically told me the same as another 3 Attorneys have told me: there is going to be a memo on how to proceed...

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Lisa,

after following this thread (wasn't it a great idea to come here?) I see three possible ways to handle this:

1) File ASAP for AOS and hope for the best

2) "Move" to another State, at least on paper, where currently VWP cases involving overstay are being approved

3) Wait for comprehensive immigration reform. You've waited so many years already, you can wait another 2 or 3 years.

There is no perfect path here right now. All of them are inconvenient in their own way. Given the information you received here, I would suggest you talk to your immigration attorney and see what he or she says.

I wish you the best of luck. You can always P.M. me if you have a question which you do not want to ask openly.

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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