Strict Reading of Visa Rule Trips Up More Couples

[SuperDuper! 230]

How are things going for you Kitty? Last I read you were trying to get a Canadian Passport?

[Sven 0]

Umm no, they did not screw it up. It was supposed to stop the 90 day time frame when they did submit the paperwork. Please, the USCIS called me a CUSTOMER. I paid them a ton of money, and they can not find out that I did not send in one single document? They won't even issue a working permit and call you for an interview when you don't turn that form in. But that's what they did in this case.

It seems like no body here has read the article... I realize they forgot the form, but USCIS went ahead and ISSUED them a working permit AND called them for an interview and THEN the interviewer told them about it and THEN they did submit it correctly, again. How is deportation justified? It is not. USCIS is the one who needs to be hold accountable here. Sorry. That is what this is about. It's not like they forgot a form, ignored everything else, and just didn't care enough about it.

Edited May 16, 2010 by Sven

[belinda63 3,022]

I did read the article and yes USCIS should have sent an RFE but the point is the people violated immigration law by him coming to the US on the VWP with the intent to immigrate. That is fraud plain and simple. And what does him being a white Christian have to do with anything?

[sachinky 464]

And yes the way it sounds the Courts are finally trying to close the VWP express to AOS which makes me very happy.

If this true, then more power to it.

Sure, USCIS screwed up but then again, maybe this couple shouldn't have been entering on the VWP with intent to AOS. That, btw, is visa fraud.

[Rebecca Jo 1,962]

I found this interesting:

"Under the appeals court’s decision, the larger issue remains. 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".

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

[Kittyfang 6]

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

I've read this before, but didn't understand it all the way trough... For example, I am in the 6th circuit and from Canada (not a VW country, but almost). Is this affecting me? Am I pretty much SOL regarding the AoS since I have an overstay?

[trailmix 77]

I've read this before, but didn't understand it all the way trough... For example, I am in the 6th circuit and from Canada (not a VW country, but almost). Is this affecting me? Am I pretty much SOL regarding the AoS since I have an overstay?

Canada is not a VWP country - not even "almost" - these rulings have nothing to do with your situation that I can see.

Edited May 16, 2010 by trailmix

[Kittyfang 6]

Canada is not a VWP country - not even "almost" - these rulings have nothing to do with your situation.

Got it, thank you.

[Rebecca Jo 1,962]

I've read this before, but didn't understand it all the way trough... For example, I am in the 6th circuit and from Canada (not a VW country, but almost). Is this affecting me? Am I pretty much SOL regarding the AoS since I have an overstay?

These are courts decisions, not changes in the law. As such they are called 'case law' and judges can use these decisions to justify their own conclusions on a matter. Tricky business that and is one reason why lay-people shouldn't conjecture about legal matters.

You did not enter on the VWP so this particular decision (in my lay-persons opinion)does not affect you.

I have no idea the details of your case and even if I did I would not conjecture as to the outcome of it.

[VanessaTony 3,567]

Umm no, they did not screw it up. It was supposed to stop the 90 day time frame when they did submit the paperwork.

Yes they did. The clock didn't stop because they DIDN'T send the CORRECT paperwork. They screwed it up by not reading the instructions and not sending the right forms.

It seems like no body here has read the article... I realize they forgot the form,

It seems like YOU didn't read the article.. or at least you didn't understand it. Are you sure you realise they forgot a form? Because above you said they didn't screw up... and if not sending in the correct paperwork ISN'T screwing up then I don't know what is...

but USCIS went ahead and ISSUED them a working permit AND called them for an interview and THEN the interviewer told them about it and THEN they did submit it correctly, again.

No-one is saying USCIS didn't stuff up, they did too.. but things happen

How is deportation justified? It is not. USCIS is the one who needs to be hold accountable here. Sorry. That is what this is about. It's not like they forgot a form, ignored everything else, and just didn't care enough about it.

Deportation is justified for several reasons:

1. They BRAZENLY abused the VWP. He came over, they got married, they LEFT and he re-entered with CLEAR intent to AOS

2. They didn't submit the correct paperwork. It's all there in black and white. It's not that hard..

3. Even if the forms were confusing they could have hired a lawyer. They didn't and now he's in trouble

4. Even if they didn't have the MONEY for a lawyer, a quick google would have helped them out too.

USCIS stuffed up, no-one's saying that, BUT these people stuffed up. They couldn't even file the paperwork correctly after so easily breaking the law.

It's completely obvious that they just thought it would all "just work out". It's obvious they didn't do their research and that they thought the law didn't apply to them (it's pretty clear on the VWP stuff that AOSing isn't permitted).

Even if you ignore the AOS stuff, he broke the VWP laws by overstaying. His 90 day clock doesn't really "stop" until he's had his greencard approved. He's paused yes, but his AOS was denied and therefore the overstay time counted. I know that if my AOS isn't approved (and I came over on a K1), then any time past my I-94 date counts as overstay. My clock isn't really paused, it just won't matter when my AOS is approved. I also know that I can't apply for AP if I'm passed 6 months from my I-94 expiration (even with AOS pending) or if it's approved after that 6 months deadline, because if I leave the country then I get a ban. If the clock really WAS paused then that 6 month thing wouldn't matter... Until the GC is approved nothing is certain. His GC wasn't approved because they didn't submit the right paperwork therefore he had overstayed his time and was deportable.

Edited May 16, 2010 by Vanessa&Tony

[cappucino 1]

"In practice, however, a more lenient law has long governed the way immigration authorities treat foreigners who marry American citizens: Even if they overstayed, as long as they originally entered the country legally, they had been allowed to “adjust” their status to permanent resident."

My reading of this is that, yes, it could affect anyone, regardless of the circumstances of the overstay. I hope that my understanding of this part is not true. I subscribe to a newsletter from a firm that reports on topics like this, if they have anything pertinent to this story in the next one, I will report back.

[Rebecca Jo 1,962]

USCIS didn't "stuff up" by issuing an EAD to this gentleman. It's an interim benefit derivative of the I-485 and has nothing to do with the I-130.

And the clock for accruing overstay time IS stopped while a petition is in adjudication and the applicant remains in the US. For every applicant. Based on the outcome of the petition though, the clock can be 're-wound'.

[Vivi6 12]

USCIS is the one who needs to be hold accountable here. Sorry. That is what this is about. It's not like they forgot a form, ignored everything else, and just didn't care enough about it.

This is about 2 presumptuous people that think that only because they have PHds (and probably because they are white and Christian) they can get around the Law. I think it's pretty clear that you CAN marry a USC of course but you have to take certain routes. They are long, expensive, sometimes I feel they are unfair, but you are moving to a new country so you want to respect the laws, right? the scope of a TOURIST visa is to be a TOURIST. Not to get married. I know sometimes stuff happens and people do get married on a tourist visa, but these people obviously wanted the shortcut, and they got screwed. It's sad, but the USCIS had all the elements for deportation.

[Darnell 8,478]

Yay ! He's leaving the country ! My tax dollars at work! (and yours)

Go TeamUSA !!!

[Kathryn41 3,205]

Last two posts split off to form separate topic on "Tax Dollars and Illegal Aliens" in Off Topic Forum here: http://www.visajourney.com/forums/topicso/256734-taxes-dollars-and-illegal-aliens/ so as not to derail this thread with a separate issue