Married under visa waiver

[JimVaPhuong 4,863]

Thanks a lot for your anwer you really cleared out my doubts.

I still have a week before my Tourist Visa will expire.

We got married within the 90 days and I already have my medical exams and everything I need to fill out the application so maybe if I move fast enough I won't be applying as an overstayed waiver but as a still legal tourist in the US(I think).

Anyways I see how delicate and complex the whole situation is, so we are consulting with an attorney and we'll make sure that everything is ok and I won't get deported (hopefully).

Understand that the VWP is not the same as a tourist visa. A tourist visa requires an interview at a US consulate, allows the visa holder to visit the US for up to six months, and it doesn't come with a "no contest" clause like the Visa Waiver Program. Because of this, someone who enters with a tourist visa has the opportunity to request 'due process' in matters involving US immigration law. Someone who enters using the VWP gives up this opportunity, and agrees that any decision by any US immigration officer is not subject to review or appeal. This means any US immigration officer can, for good cause, order you deported and there will be nothing you can do to stop it. The five federal district appeals courts that have weighed in on the matter have agreed that overstaying your authorized stay by even one day is sufficient cause for an immigration officer to order your deportation.

You're not on a K1 visa, so it doesn't matter when you got married. It matters what your status is when USCIS accepts your petition to adjust status. If your authorized stay has expired at the time they consider whether to accept your petition, then they can opt instead to just order you deported for overstaying.

I mailed my wife's AOS package on May 25th. The receipt notice (the date USCIS accepted the petition) was dated June 3rd. That's 9 days. You don't have that much time left. There's a good chance your authorized stay will expire before your petition is accepted. If I were in your shoes, I wouldn't take the risk.

[FrancescoBD 0]

I need to be more carefull choosing my words, I apologize. I came here with the visa waiver program... And I agree with you if it means jeopardizing all the efforts we have made to be together I will go home and apply from there.

Anyhow, I am asking for professional help, I'll have an appointment with the attorney this monday. We'll decide what to do after the appointment.. Hopefully he'll assure us I can stay. We are really tired of being apart.

thank you all

[JimVaPhuong 4,863]

I need to be more carefull choosing my words, I apologize. I came here with the visa waiver program... And I agree with you if it means jeopardizing all the efforts we have made to be together I will go home and apply from there.

Anyhow, I am asking for professional help, I'll have an appointment with the attorney this monday. We'll decide what to do after the appointment.. Hopefully he'll assure us I can stay. We are really tired of being apart.

thank you all

If your attorney is honest then he'll tell you the same as you've been told here.

I wish you good luck, whatever you decide to do.

[FrancescoBD 0]

At the end we decided to take the risk.

We now have an attorney representing us, he's name is Arnold Jaffe. He told us that our case was risky but not impossible. Hopefully everything will go smoothly, I am still a little freaked out because of my overstay (it's been 2 days so far) and I am not sleeping so peacefully anymore.

We are trying to collect the documents for the affidavit and support, and we still need to take the pictures needed for the AOS but aside from that it seems we are all set.

Thank you all for helping us and thanks JimVaPhuong for your best whishes. I really hope everything will go in the right way.

[Max1gk 68]

Francesco,

I wish you good luck and the best; keep us updated!

un saluto,

Massimo

[Deputy Purple 1,294]

At the end we decided to take the risk.

Just so you know, an attorney will not be able to change the fact that if your AOS is denied you will be immediately deported. Since you are now an AOS overstayer you don't have any right to appeal so you won't get to file to re-open the case or appeal before and immigration judge and the appeals courts will refuse to hear your case saying they don't have jurisdiction.

An honest immigration attorney would explain this to you.

In the end you will have to return anyway but with a re-entry ban so now you will need a waiver which will mean eave more time separated from your wife.

[FrancescoBD 0]

Just so you know, an attorney will not be able to change the fact that if your AOS is denied you will be immediately deported. Since you are now an AOS overstayer you don't have any right to appeal so you won't get to file to re-open the case or appeal before and immigration judge and the appeals courts will refuse to hear your case saying they don't have jurisdiction.

An honest immigration attorney would explain this to you.

In the end you will have to return anyway but with a re-entry ban so now you will need a waiver which will mean eave more time separated from your wife.

I see where you're coming from. However, we were and we are already aware of the consequences in the case my AOS will be denied. I never said he didn't inform us about the risks and I believe it's really uncorrect to come to conclusions without knowing all the facts.

I appreciate your concern but we all know that people go through this proccess and sometimes they succeed, why not us then?!

Francesco,

I wish you good luck and the best; keep us updated!

un saluto,

Massimo

Grazie mille

Massimo

Anyways, our envolope is almost ready to be mailed. Monday it'll be closed and sent.

Edited October 29, 2010 by FrancescoBD

[Deputy Purple 1,294]

I appreciate your concern but we all know that people go through this proccess and sometimes they succeed, why not us then?!

I'll tell you why, because things have changed in that last few months. Since June/July of this year most of the USCIS Offices are denying AOS applications for WVP Overstayers and ordering the Alien spouses' immediate removal. California is in one of the Appeals Court Districts that agrees with USCIS that they don't have to even consider your AOS application and can order your removal AND you don't have any right to appeal their decision!

If you want to reduce your time apart then do a normal CR-1 Filing now (starts with just the I-130) and stay a few more months but leave before you've overstayed 180 days so no re-entry ban is incurred. Of course you still run the risk of being picked-up by ICE and deported.

This would allow you to stay for about 4 months, I-130 approvals are 5 - 7 months generally and most countries will have Embassy interview within a few months of that approval.

If this goes wrong for you then you'll be apart for over 1 year after you're deported.

If you do this right you can reduce that to around 5 months.

In the end the choice is yours but these recent changes in how USCIS is handling VWP Overstayers is directly impacting your situation in a very negative way.

[Myopia 93]

Since June/July of this year most of the USCIS Offices are denying AOS applications for WVP Overstayers and ordering the Alien spouses' immediate removal.

Oh really. Most. As in the majority. Really.

[JimVaPhuong 4,863]

Oh really. Most. As in the majority. Really.

I saw one lawyer blog a few weeks ago where the attorney was claiming that half of the field offices were doing this. I don't know where she got her stats. I don't think anyone really knows for certain.

[FrancescoBD 0]

I'm trying to find information about my specific case but all the articles I'm reading are about applicants under VWP with different stories.

I recently read this from the New York Times ARTICLE but their story is different from ours because they forgot to fill out the I-130.

Also I found this article written by an attorney in San Diego ARTICLE which is really vague.

I don't know, we started filling things up way before my overstay started, my medical examination is dated 10/4/'10. I know it may sound stupid but my overstay has recently begun so it's not like I overstayed months, shouldn't this be taken in consideration by uscis?

I think applications are treated differently depending on the case, don't you think?

My life would have been much easier back home I would have had my job and probably kept studying and I wouldn't have spent so many months without working and struggling with money...

I feel like that's a sacrifice they should keep in consideration.

What do you think? I know I am panicking and I am sorry about that but you're seriously the only people I can talk to right now that would understand.

Edited October 30, 2010 by FrancescoBD

[Deputy Purple 1,294]

The VWP Overstay is the determining factor.

California is in one of the Federal Court Districts that have ruled in favor of USCIS not allowing AOS on VWP Overstays.

Right now VWP Overstay AOS is being handled 3 different ways:

In areas covered by previously mentioned Federal Court Districts are denying AOS and ordering immediate removal (and you have no right to appeal).

The other areas are a toss-up as some are delaying adjudication on AOS for VWP Overstays until the head office issues a new official policy.

The remainder are still adjudicating AOS for VWP Overstays but this will stop when the new official policy is issued if it follows the majority of Federal Court Districts.

Like I said before, you can file the I-130 now and leave before you've hit 180 days of overstay without incurring a ban (but you won't be able to use VWP again (which is irrelevant once you get a Greencard), this will reduce your time apart and avoid needing a waiver to get back to her.

[JimVaPhuong 4,863]

I'm trying to find information about my specific case but all the articles I'm reading are about applicants under VWP with different stories.

I recently read this from the New York Times ARTICLE but their story is different from ours because they forgot to fill out the I-130.

Also I found this article written by an attorney in San Diego ARTICLE which is really vague.

I don't know, we started filling things up way before my overstay started, my medical examination is dated 10/4/'10. I know it may sound stupid but my overstay has recently begun so it's not like I overstayed months, shouldn't this be taken in consideration by uscis?

I think applications are treated differently depending on the case, don't you think?

My life would have been much easier back home I would have had my job and probably kept studying and I wouldn't have spent so many months without working and struggling with money...

I feel like that's a sacrifice they should keep in consideration.

What do you think? I know I am panicking and I am sorry about that but you're seriously the only people I can talk to right now that would understand.

What's vague about the article from the immigration attorney in San Diego?

" To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview."

Sounds pretty straightforward.

There was another lawyer blog (don't remember where I read it) confirming that the San Francisco office was doing the same thing.

Your AOS is considered "filed" on the day that USCIS accepts the application. This is the date they put on the first Notice of Action. It doesn't matter how long before that you began preparing the documents. If you are out of status on that day then you are a VWP overstay.

The length of the overstay is irrelevant, and they won't take it into consideration. Likewise, any personal sacrifices you've made are irrelevant, and they won't take them into consideration. There is simply no provision in immigration law for them to consider these things.

In my opinion (which won't buy you a cup of coffee) you shot yourself in the foot when you sent the AOS petition. If you had left when you were supposed to you would have had no problems with a CR1 visa. Now you face a serious risk of a summary order of removal, and a subsequent 10 year ban from the US. You'll need an I-212 waiver to overcome the ban. I sincerely hope this doesn't happen to you, but I fear it will.

Good luck!

[VanessaTony 3,567]

My opinion ---

1. If you haven't reached 180 days of overstay, leave before then and file for a CR-1 (before or after you leave, up to you). This is the safest option. No bans to overcome. Time apart yes but quicker to be together and cheaper in the long run (filing twice basically if you're denied).

2. If you HAVE reached over 180 days of overstay (but less than 365 days), you will get a 3 year ban on leaving, therefore you don't really have anything to lose by applying now and if you're denied. Same ban will apply (unless they actually deport you which is a 10 year ban.. leaving voluntarily is still only the 3 year).

3. If you have reached over 365 days you lose nothing by applying or even being deported. In both cases it's a 10 year ban... but I think there's another waiver involved if you're deported..

Either way.. I personally prefer option 1 if possible... it's just safer. It sucks sure, but it's safer.

**Edit - this is all worst case scenario... if you're approved that's great, but the risk is there and the risk is scary.

Edited October 31, 2010 by Vanessa&Tony

[FrancescoBD 0]

This monday we'll go to the lawyer with the articles and the information you guys gave me and we'll se what he says.

He must have an idea about what's going on.

I haven't overstayed yet... so I may go home and apply for the CR-1.

thank you all for your amazing help