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philcav

frustrated beyond belief

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I came here in 2006 on a VWP, to Ga and applied for greencard a few months later. During that time I got married to a US citizen. I applied for AOS and work permit but both were denied. I havent been able to get a SSN, and no one explained how easy it would have been to change my license over within 30 days of arriving here. My wife and me were forced to come to texas, and now we have been trying to reapply, but our lawyer has not been doing much at all to help and it has dragged on and on. It has put a huge strain on our marriage as i havent been able to get a social in three plus years ive been here. Which means i cant drive , make any money or have access to any of the basic rights, and i have been married to a citizen for over three years. I just want to get a work permit so I can take care of my family. Can u help. The i485 was denied. My files have been lost and our lawyer cant find i130 has been approved.. I just want to know whats my best action to get this sorted out FAST.

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Filed: Citizen (apr) Country: Iran
Timeline

If the AOS was denied the first thing you need to check is if you are in removal proceedings. There is no appeal from a denial of AOS from the VWP not that it would matter since the appeal time is way past. You can try to re-file the AOS but I don't think you will be very successful. Good luck and maybe someone with better advise will come along.

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Belinda is right-no appeal is allowed if you are under the Visa Waiver Program, hence its name.

On what basis did you attempt to adjust status if you hadn't been married yet and entered on VWP?


Naturalization

9/9: Mailed N-400 package off

9/11: Arrived at Dallas, TX

9/17: NOA

9/19: Check cashed

9/23: Received NOA

10/7: Text from USCIS on status update: Biometrics in the mail

10/9: Received Biometrics letter

10/29: Biometrics

10/31: In-line

2/16: Text from USCIS that Baltimore has scheduled an interview...finally!!

2/24: Interview letter received

3/24: Naturalization interview

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Belinda is right-no appeal is allowed if you are under the Visa Waiver Program, hence its name.

On what basis did you attempt to adjust status if you hadn't been married yet and entered on VWP?

OP said they married "During that time I got married to a US citizen. I applied for AOS "


if you gave your info (receipt #s, full name, etc) to anyone on VJ under the guise that they would "help" you through the immigration journey with his inside contacts (like his sister at USCIS) ... please contact OLUInquiries@dhs.gov, and go to http://www.whitehouse.gov/contact to report anything suspicious. Contact your congressman and senator's offices as well.

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Hi Phil,

I don't want to sound like I'm putting you off, but I'm not sure that this particular place on this website (if this DIY website is appropriate at all) is a good place to find the expertise you need.

There is another forum just below ours on this same visa journey site which is for people who are adjusting from other visas. This forum is where people who entered on family based visas (K- visas) can swap experiences about the adjustment process - from those visas. One forum down is for people who are adjusting from other visas, or the VWP, like you. Their basis for adjustment is also family based, but the process is different, thus, the different forums. They have the expertise there to hopefully answer your questions.

Secondly, as mentioned previously, the previous denial of your AOS may turn out to be a big problem for you, and I think you should consider at least a consultation with an immigration lawyer. As your previous AOS was denied and you're out of status on your VWP entry there are a lot of sort of "special cases" going on here and availing yourself of at least a consultation with a qualified Immi lawyer could be the best thing you could do in this situation.

All the best!


K-1:

January 28, 2009: NOA1

June 4, 2009: Interview - APPROVED!!!

October 11, 2009: Wedding

AOS:

December 23, 2009: NOA1!

January 22, 2010: Bogus RFE corrected through congressional inquiry "EAD waiting on biometrics only" Read about it here.

March 15, 2010: AOS interview - RFE for I-693 vaccination supplement - CS signed part 6!

March 27, 2010: Green Card recieved

ROC:

March 1, 2012: Mailed ROC package

March 7, 2012: Tracking says "notice left"...after a phone call to post office.

More detailed time line in profile.

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Filed: Citizen (apr) Country: Australia
Timeline

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for**

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OP said they married "During that time I got married to a US citizen. I applied for AOS "

No, this is what the OP said, "I came here in 2006 on a VWP, to Ga and applied for greencard a few months later. During that time I got married to a US citizen."

If he married her before he did the AOS, then he wrote an incorrect sentence.

OP, did you marry the US citizen before you applied or after?


Naturalization

9/9: Mailed N-400 package off

9/11: Arrived at Dallas, TX

9/17: NOA

9/19: Check cashed

9/23: Received NOA

10/7: Text from USCIS on status update: Biometrics in the mail

10/9: Received Biometrics letter

10/29: Biometrics

10/31: In-line

2/16: Text from USCIS that Baltimore has scheduled an interview...finally!!

2/24: Interview letter received

3/24: Naturalization interview

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Filed: K-1 Visa Country: Vietnam
Timeline

Normally, when an AOS is denied they give you 30 days to file an appeal. However, VWP entrants cannot appeal the decision, so they are usually given a notice of intent to begin removal proceedings instead. Any chance you got that notice and that's why you were "forced" to move to Texas?

Unfortunately, you are unlawfully present in the US. After four years, there is little doubt that you are in removal proceedings. It's even possible that you have already been deported in absentia. The odds of USCIS accepting another AOS petition from you is close to zero. Unless your attorney has some tricks up his sleeve that I'm not aware of, my guess is that he's not dragging his feet - he's milking you for cash because he knows you can't win. Because of the VWP entry, you had one shot at getting a green card - you failed.

The only way I think you're going to get a green card now is return to your home country, your spouse files for an IR1 visa, and when you are denied at the consulate interview your spouse submits an I-601 hardship waiver application. Your only other option is to sue USCIS in a federal appeals court, but the track record for VWP entrants winning cases like these is abysmal. Your odds with a spousal visa and hardship waiver are much better. You'll need an immigration lawyer who is experienced with these waivers.

Good luck.


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: K-1 Visa Country: Wales
Timeline

Nicely put.


“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: Citizen (apr) Country: Canada
Timeline

You have a few options, but none of them are quick.

If you'd like to clear up some of the questions listed on here, that might help your case

In the mean time, you can file an FOIA to figure out if you've been put in removal proceedings (common after an AOS denial) or you've been deported in absentia. This will seriously hinder your future in the US because if you have been deported in absentia, you'll want to find out if you are a deportation absconder.

It is unlikely another AOS will be successful since nothing in your case has changed excpet an excessive amount of time and a move to Texas. I suggest your wife files the I-130 while listing that the interview will take place in your home country. You then depart from the US for the interview (You can leave earlier but in all honesty it won't make a difference) and you will be denied (very likely but again, depends on the results of the FOIA). At this point you can submit your waiver for inadmissability which shows how your wife will suffer 'extreme' hardship if you are not returned to the US and how she cannot move to your country. If successful, you can return to the US as a permanent resident.

http://www.state.gov/m/a/ips/

Laural Scott is a fantastic lawyer who specializes in inadmissability. She also offers free chats on wednesdays so you can ask immigration related questions. Regardless, you'll need a good lawyer

http://scottimmigration.net/

Good luck


USCIS
August 12, 2008 - petition sent
August 16, 2008 - NOA-1
February 10, 2009 - NOA-2
178 DAYS FROM NOA-1


NVC
February 13, 2009 - NVC case number assigned
March 12, 2009 - Case Complete
25 DAY TRIP THROUGH NVC


Medical
May 4, 2009


Interview
May, 26, 2009


POE - June 20, 2009 Toronto - Atlanta, GA

Removal of Conditions
Filed - April 14, 2011
Biometrics - June 2, 2011 (early)
Approval - November 9, 2011
209 DAY TRIP TO REMOVE CONDITIONS

Citizenship

April 29, 2013 - NOA1 for petition received

September 10, 2013 Interview - decision could not be made.

April 15, 2014 APPROVED. Wait for oath ceremony

Waited...

September 29, 2015 - sent letter to senator.

October 16, 2015 - US Citizen

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No, this is what the OP said, "I came here in 2006 on a VWP, to Ga and applied for greencard a few months later. During that time I got married to a US citizen."

If he married her before he did the AOS, then he wrote an incorrect sentence.

OP, did you marry the US citizen before you applied or after?

ok we got married march 2nd, and applied after that. My VWP was valid till 13th march. We were turned down due to missing information that had been requested. There was nothing about having any time to leave on the denial letter i received. And I thought overstaying became irrelevant when married to US citizen. The reason we came to Texas was because of my wifes children, and the process was still pending when we moved here. The lawyer we hired said it would be a straitforeward case to reapply, and once everything was in place i would have ead in a few months, so i dont understand all the advise im getting on here like i have to go back as i dont have any choice. The reason we want another lawyer is because this one was not getting things done fast. We were advised to wait till we had found out if our i-130 had been approved, and she could find no evidence of the form. She also said they had lost my files that were supposed to be in GA, when she had asked for them to be transfered. As far as I understand you can re apply again, and she said the status thing would be fine as long as i didnt get caught for any offense. I was hoping i could get some clarification on this site but it seems to be out of most peoples juristriction. I do appreciate the time people have taken to reply.

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Filed: K-1 Visa Country: Vietnam
Timeline

ok we got married march 2nd, and applied after that. My VWP was valid till 13th march. We were turned down due to missing information that had been requested. There was nothing about having any time to leave on the denial letter i received. And I thought overstaying became irrelevant when married to US citizen. The reason we came to Texas was because of my wifes children, and the process was still pending when we moved here. The lawyer we hired said it would be a straitforeward case to reapply, and once everything was in place i would have ead in a few months, so i dont understand all the advise im getting on here like i have to go back as i dont have any choice. The reason we want another lawyer is because this one was not getting things done fast. We were advised to wait till we had found out if our i-130 had been approved, and she could find no evidence of the form. She also said they had lost my files that were supposed to be in GA, when she had asked for them to be transfered. As far as I understand you can re apply again, and she said the status thing would be fine as long as i didnt get caught for any offense. I was hoping i could get some clarification on this site but it seems to be out of most peoples juristriction. I do appreciate the time people have taken to reply.

The overstay cannot be used as a reason to deny the AOS application because you are the spouse of a US citizen. The problem is the VWP entry. Because of the VWP entry they can simply refuse to accept the AOS application and begin removal proceedings because you are deportable. According to this attorney, about half of the USCIS offices are doing exactly that:

http://www.cavanaughlegal.com/adjustment-of-status-aos/adjustment-of-status-green-card-through-marriage/

The article also mentions two significant precedent cases in the 3rd and 9th circuit courts of appeal where it was determined that only a VWP entrant who has not overstayed is not immediately deportable at the discretion of USCIS. This is a relatively new approach that USCIS is taking with VWP entrants. If your attorney is keeping current then they should know this.

It's been over three years since your first AOS petition was denied. When USCIS denies an AOS petition they don't just sit on their hands and wait for you to submit another petition however many years later you decided to do this. They give you a limited amount of time to leave the US on your own, after which they start removal proceedings. People who don't enter using the VWP have the option of appealing, or petitioning to have the case reopened, or even submitting a new petition after correcting the reason for the denial. You waived your right to any of those options when you entered using the VWP. That's why I said VWP entrants are not given a second chance at AOS. I can give you a long list of VWP entrants who have gone to court to try to get an AOS denial overturned - very few have succeeded. You can begin with this one:

http://www.ca6.uscourts.gov/opinions.pdf/07a0329p-06.pdf

The circumstances are very similar to yours. Vincent Lacey entered using the VWP. Three days before the VWP stay expired he married Jacqueline Darnell - a US citizen. Darnell filed an I-130 and Lacey filed an I-485. The I-130 was approved. The I-485 was denied because he had inadmissible drug convictions in his home country. A few months later agents from ICE showed up at their door to arrest Lacey for deportation on the grounds that he'd overstayed his VWP entry. He couldn't file an appeal with USCIS, so he filed an appeal with the 6th circuit court of appeals. They dismissed it claiming the "no contest" clause of the VWP did not give them jurisdiction over USCIS. When reading the case, don't focus on the reason his AOS was denied - it's irrelevant, and the court even said it was irrelevant. Focus on the reason he was being deported - he overstayed his authorized stay, and he waived his right to appeal because of the VWP. Nobody - not even a federal appeals court - could stop USCIS from deporting him.

If USCIS has already begun removal proceedings against you (which is highly likely) then they won't adjudicate a new AOS petition until you address the removal. However, as a VWP entrant you cannot appeal the removal, which puts you between a rock and a hard place. It's distinctly possible that if you file another petition then your denial letter could be delivered by ICE agents, like they did to Lacey.

You don't have to believe anything I'm telling you, but at LEAST raise these questions with your attorney. It really sounds to me like he's soft-soaping 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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Filed: K-1 Visa Country: Wales
Timeline

“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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