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Lawyer has advised to file from New York instead of New Jersey

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I wonder, like Jim said, if your lawyer is confusing the WVP issue with your issue. It was pointed out in the NYTimes that the 3rd circuit (including NJ) but NOT the 2nd circuit (including NY) is scrutinizing applicants from VWP overstay differently than they used to... with the possibility of denial/deportation. However, you say you are adjusting from a visit visa (I take this to mean B-2) and not a Visa Waiver Program, so this does not apply to you. We successfully adjusted from B-2 in Newark with an interview of 8/17, just about 2 months ago. Like the others said, ask which case your lawyer is talking about. Also, how often does your lawyer work with this type of immigration case. It's totally possible he has some inside information, but if I'd have to, I'd bet the mortgage that he is confused with the VWP issue. Good luck.

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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I wonder, like Jim said, if your lawyer is confusing the WVP issue with your issue. It was pointed out in the NYTimes that the 3rd circuit (including NJ) but NOT the 2nd circuit (including NY) is scrutinizing applicants from VWP overstay differently than they used to... with the possibility of denial/deportation. However, you say you are adjusting from a visit visa (I take this to mean B-2) and not a Visa Waiver Program, so this does not apply to you. We successfully adjusted from B-2 in Newark with an interview of 8/17, just about 2 months ago. Like the others said, ask which case your lawyer is talking about. Also, how often does your lawyer work with this type of immigration case. It's totally possible he has some inside information, but if I'd have to, I'd bet the mortgage that he is confused with the VWP issue. Good luck.

Thanks - this is helpful - I am the US citizen and my wife is on a B2 - and was issued an an I-94 valid for 6 months when she entered the US back in July. Therefore she is not an overstay but still subject to WVP restrictions. The court case in question is 'Bradley VS Holder, Third Circuit Court' Click Here for Details

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. - Click for Details here

This is where things get a little grey - It seems like if we were to file from NJ - our process could be significantly delayed and if not approved we would have no right to appeal and my wife could face deportation.

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Hey Quick

i am confused--if she entered with a B2, then why does VWP apply??

@ Magical - I guess I am the one who is confused - you are correct - the VWP does not apply - thanks

I guess I need to get clarification if the delay in processing AOS applies to cases other than VWP - Does anyone here know?

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Filed: Citizen (apr) Country: Mexico
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Newark is slower than many of the local offices--often 30 days slower--but I am not aware of any delays beyond that. Working with the people in the Newark office, however, has been very easy--they are polite, cheerful, and seem to want to help rather than hinder. Even their InfoPass group gets high praise, and my personal experience with them was outstanding. Read this link--it should encourage you and make you think twice about stretching the truth in NY.

Good luck

http://www.visajourney.com/reviews/index.php?cnty=&cty=Newark+NJ&dfilter=5

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Thanks - this is helpful - I am the US citizen and my wife is on a B2 - and was issued an an I-94 valid for 6 months when she entered the US back in July. Therefore she is not an overstay but still subject to WVP restrictions. The court case in question is 'Bradley VS Holder, Third Circuit Court' Click Here for Details

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. - Click for Details here

This is where things get a little grey - It seems like if we were to file from NJ - our process could be significantly delayed and if not approved we would have no right to appeal and my wife could face deportation.

Go ahead and file for AOS in NEW JERSEY. Your wife came on a tourist visa, not on VWP and she is still in status. The court case mentioned above has nothing to do with your situation, you have absolutely nothing in common with it. Bradley's AOS application from VWP was initially denied because of failure to appear at the interview and after that everything fell apart. Things are not that complicated in your case, but they could be if you want them to be (per example, filing the application in New York). A lot of people on this forum applied for AOS from a tourist visa. Good luck!

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Thanks - this is helpful - I am the US citizen and my wife is on a B2 - and was issued an an I-94 valid for 6 months when she entered the US back in July. Therefore she is not an overstay but still subject to WVP restrictions. The court case in question is 'Bradley VS Holder, Third Circuit Court' Click Here for Details

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. - Click for Details here

This is where things get a little grey - It seems like if we were to file from NJ - our process could be significantly delayed and if not approved we would have no right to appeal and my wife could face deportation.

Yeah, as I think you realize now, you are NOT subject to VWP restrictions. She entered on a B-2 and is still in status (even if she was out-of-status she is fine). B-2 is a VISA and has a right to the appeals process (which is the key difference between that and a WVP non-visa). She is NOT VWP. You CAN appeal on a B-2 (and unless you have some fishy background it shouldn't go that far).

I was just playing detective and wondering if your lawyer was confused, as the only reason I could think of was a NYTimes article that said that NJ was giving people adjusting from VWP a problem, and not NY. (This is a complicated and separate issue, related to the waiver of the appeals process). That was widely read by lawyers and lay people alike. While it's possible your lawyer is really spot-on and reads the published court proceedings... I thought this article might be a better culprit. Whatever the culprit is, we on this board have not seen anyone have any trouble adjusting from a B-2 visa based solely on the B-2 visa and not on some other issue... evidence of fraud basically. So, unless your lawyer has some secret inside information of something that has changed in the last two months (and this seems unlikely... such a drastic change would probably make some sort of noise somewhere) then I think he/she is confused.

Anyway, long story short... and the rambling... long day... you are NOT VWP... and the law states that you CAN adjust status from a B-2 visa. I don't know what your lawyer is on about. No difference between NY and NJ.

Good luck.

Link to NyTimes article (Remember this does NOT apply to your situation, but it's possible - remotely - that your lawyer got the idea from here, if not from the things you linked).

http://www.nytimes.com/2010/05/15/nyregion/15visa.html

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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Filed: IR-1/CR-1 Visa Country: China
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@ Magical - I guess I am the one who is confused - you are correct - the VWP does not apply - thanks

I guess I need to get clarification if the delay in processing AOS applies to cases other than VWP - Does anyone here know?

Wife is B2 ? OK !

For now - you really should contact USCIS, and get some case status.

Give USCIS a phone call, when they're open -

and (this is important)

Get an ISO (Immigration Service Officer), a Tier 2 worker - see/read/review http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#5

and

understand the difference between a Tier 1 Sub-Human and a Tier 2 Human.

Once you've made the distinction (ya, sorry, more cr@p to read, but it's from DHS, so it's official),

and figured out how to reach the ISO -

call !! keep calling until you get an ISO !!

and then ask

--casefile status

--Did the Immigration Officer at the Local Office lose the casefile?

--Did the Immigration Officer at the Local Office go on vacation?

--Did the Immigration Officer at the Local Office retire?

--What's the last 'action date' on my casefile?

--What's the last 'action status' on my casefile ?

--Why, after 2 months, is there still no final adjudication on my casefile?

--------------

Look, VJ is a web portal that focuses on 'DIY' -

so

if yer not paying attention to the 'D' (Doing is important here, btw) and 'Y' (ya, this really means YOU)

then I mostly worry about you, and any decision you've made to wait on postal notification.

Seriously, call.

Call Often.

and note

Casefile Status can change, whilst yer waiting on postal notification.

You Really Should Call, get an ISO, and try, really hard, to figure it out, with an ISO.

Can you make a plan Sunday, for 'what to do', for Monday?

Hope all is well !

Good Luck !

Sometimes my language usage seems confusing - please feel free to 'read it twice', just in case !
Ya know, you can find the answer to your question with the advanced search tool, when using a PC? Ditch the handphone, come back later on a PC, and try again.

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Go ahead and file for AOS in NEW JERSEY. Your wife came on a tourist visa, not on VWP and she is still in status. The court case mentioned above has nothing to do with your situation, you have absolutely nothing in common with it. Bradley's AOS application from VWP was initially denied because of failure to appear at the interview and after that everything fell apart. Things are not that complicated in your case, but they could be if you want them to be (per example, filing the application in New York). A lot of people on this forum applied for AOS from a tourist visa. Good luck!

Hey !

You Nailed IT !!!!!

I wish there was a points system here - I'd award you 1117 points.

Warmest Regards....

Sometimes my language usage seems confusing - please feel free to 'read it twice', just in case !
Ya know, you can find the answer to your question with the advanced search tool, when using a PC? Ditch the handphone, come back later on a PC, and try again.

-=-=-=-=-=R E A D ! ! !=-=-=-=-=-

Whoa Nelly ! Want NVC Info? see http://www.visajourney.com/wiki/index.php/NVC_Process

Congratulations on your approval ! We All Applaud your accomplishment with Most Wonderful Kissies !

 

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@ Magical - I guess I am the one who is confused - you are correct - the VWP does not apply - thanks

I guess I need to get clarification if the delay in processing AOS applies to cases other than VWP - Does anyone here know?

It sounds like your attorney is the one that's confused. I read both of your links (thanks much for the court transcript, by the way :thumbs: ) and I don't see any way this would apply to a B2 visa entrant. That doesn't mean you're completely out of the woods, but it does appear that your lawyer is basing his recommendation on a precedent case that's not applicable to your situation. I agree with magical - you should talk to another lawyer.

I do a have very small concern about a statement you made in an earlier post:

My wife is adjusting from a tourist visa to a resident based on spousal sponsorship (i.e. we are married and have been for 7 years) - and recently moved back to the US

I presume this means the B2 entry you referred to was when you "recently moved back to the us". Obvious, then, you were married at the time she entered with a tourist visa, yes? Was it your intention to file for her adjustment of status when she entered? If the answer is "yes", or if it's possible that USCIS could find evidence that the answer would be "yes", then you could have a potential problem. If they determine she had a preconceived intent to adjust status while in the US with a B2 visa, and further find evidence that she misrepresented her intent to any immigration officer, then they could deny her AOS and possibly ban her from the US for material misrepresentation. The evidence of preconceived intent could be as simple as entering the US with items indicating she was permanently moving to the US (perhaps documents in her bags that would be required for AOS and not required to visit the US). The evidence of misrepresentation could be as benign as answering a question from a CBP officer about the purpose of her visit.

I doubt the above scenario is what your attorney was worried about, as it wouldn't matter which USCIS field office handled your application.

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It sounds like your attorney is the one that's confused. I read both of your links (thanks much for the court transcript, by the way :thumbs: ) and I don't see any way this would apply to a B2 visa entrant. That doesn't mean you're completely out of the woods, but it does appear that your lawyer is basing his recommendation on a precedent case that's not applicable to your situation. I agree with magical - you should talk to another lawyer.

I do a have very small concern about a statement you made in an earlier post:

I presume this means the B2 entry you referred to was when you "recently moved back to the us". Obvious, then, you were married at the time she entered with a tourist visa, yes? Was it your intention to file for her adjustment of status when she entered? If the answer is "yes", or if it's possible that USCIS could find evidence that the answer would be "yes", then you could have a potential problem. If they determine she had a preconceived intent to adjust status while in the US with a B2 visa, and further find evidence that she misrepresented her intent to any immigration officer, then they could deny her AOS and possibly ban her from the US for material misrepresentation. The evidence of preconceived intent could be as simple as entering the US with items indicating she was permanently moving to the US (perhaps documents in her bags that would be required for AOS and not required to visit the US). The evidence of misrepresentation could be as benign as answering a question from a CBP officer about the purpose of her visit.

I doubt the above scenario is what your attorney was worried about, as it wouldn't matter which USCIS field office handled your application.

Yes , we have been married for 7 years when we returned to the US. She wasn't asked anything on re-entry but I understand this may still be construed as misleading the intent of reentry anyway. Our word against theirs I guess.

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Filed: K-1 Visa Country: Vietnam
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Yes , we have been married for 7 years when we returned to the US. She wasn't asked anything on re-entry but I understand this may still be construed as misleading the intent of reentry anyway. Our word against theirs I guess.

It's highly unlikely they would try to conjure up evidence against you, and it would be damned difficult to change the CBP record of entry after the fact without it also being noted in the system when the change was made. If the CBP officer had any suspicions at the time of entry that she might be intending to adjust status then he/she would have asked pointed questions about this, and maybe even sent her to secondary inspection where she would have been required to sign a statement about her intentions. Suspicion of preconceived intent, or that they will simply intentionally overstay, are probably the most common reasons people are sent to secondary inspection. The only other time a statement could have been obtained is at the visa interview. If no questions like this were asked then it won't be an issue at the AOS interview.

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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