Married under visa waiver

[FrancescoBD 0]

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

I mean I haven't overstayed the 180 day period.

Edited October 31, 2010 by FrancescoBD

[JimVaPhuong 4,863]

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

I think it would be extremely beneficial for you to ask your attorney when was the last time he submitted an AOS application for a VWP overstay, and what was the result. The situation at the field offices is very dynamic, and many of these policy changes have come about very recently. If it's been more than a few months since he's submitted an AOS application for a VWP overstay then you should recommend he check with AILA and see what's been going on at your local field office lately. This is one of those situations where prior experience may not be of much use unless it was very recent experience.

I wouldn't presume that your attorney automatically knows what's going on. An immigration attorney in California would probably spend the bulk of their time on cases involving immigrants from Latin America. They probably don't get a lot of VWP AOS cases.

[silvana.toma 15]

You don't receive an I-94W anymore. The information it would have contained are now in the ESTA system. You also agreed to the same terms of entry when you used the ESTA system to enter the US. You won't need an I-94W number for the I-485.

Yes. You were not processed for readmission, but were admitted as a continuation of your previous admission.

Whatever your legal name is at the time you submit the paperwork, that's the name you must use. Hopefully, the marriage certificate clearly shows your names prior and subsequent to the marriage. As Vanessa mentioned, if you get a hard headed IO then this might cause you some grief. Hopefully not.

Now a question - you entered using the VWP in July. It's now October. Has your VWP authorized stay expired, or is it about to expire soon? If you don't get your AOS petition accepted before your VWP authorized stay expires then you may be in for some hot water. Your AOS petition is accepted on the day USCIS generates the I-797C notice of acceptance.

Some recent cases in several federal appeals court districts have established that a VWP entrant who overstays is immediately deportable - no appeal, no hearing in front of an immigration judge. As a result, USCIS field offices in some districts have been denying AOS applications for VWP overstays and issuing an order of deportation. Some VJ members have been saying that their AOS application has been put on hold, apparently pending a uniform policy directive from the director of USCIS.

If you are not absolutely certain that your AOS application will be accepted by USCIS before your VWP entry expires then you should know you could be taking a serious risk by trying to adjust status. Not only could your AOS application be denied, but you could be deported. The deportation would result in a 10 year ban from the US. The situation is still very fluid, and the results seem to depend on which federal appeals court district you live in, at least right now.

Here is a recent lawyer's article about this situation at the San Diego field office, but what is going on at that office is apparently going on at many other USCIS field offices:

http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

There are plenty of similar articles you can find, if you spend a little time with google.

If you think there is any chance your AOS application will not be accepted before your VWP stay expires then you probably should not risk it. Return home and your USC spouse can file for a spousal visa. There is much less risk by following the normal immigrant visa process.

I am in the same situation, came here in July, and my B2 visa expires in january 2011, and i am preety sure that the moment you file for AOS you case is pending, meaning you are allowed to stay in the country till they give you a yes or a no.

I might be wrong, but a lot of people on this forum assured me it's like this, as i asked myself that specific question.

[Harpa Timsah 13,258]

You are right but Francesco didn't enter with a visa... he entered with on the visa waiver program... ie... no visa. That's the issue here. That's what "VWP" stands for.

[FrancescoBD 0]

I think it would be extremely beneficial for you to ask your attorney when was the last time he submitted an AOS application for a VWP overstay, and what was the result. The situation at the field offices is very dynamic, and many of these policy changes have come about very recently. If it's been more than a few months since he's submitted an AOS application for a VWP overstay then you should recommend he check with AILA and see what's been going on at your local field office lately. This is one of those situations where prior experience may not be of much use unless it was very recent experience.

I wouldn't presume that your attorney automatically knows what's going on. An immigration attorney in California would probably spend the bulk of their time on cases involving immigrants from Latin America. They probably don't get a lot of VWP AOS cases.

That's true. I'm gonna ask him about this and I'll also show him the various articles I found.

I was just now on the AILA website eventhough you can't read the entire article you can still read this from the archive

"CA3 on VWP Waivers and Removal Orders (Updated 5/6/10)

CA3 held that, although petitioner was once statutorily eligible for marriage-based adjustment of status, he may not, after expiration of his 90-day VWP stay, adjust his status as a defense to removal. (Bradley v. Attorney General of the United States, 04/29/10). AILA Doc. No. 10052933."

[JimVaPhuong 4,863]

That's true. I'm gonna ask him about this and I'll also show him the various articles I found.

I was just now on the AILA website eventhough you can't read the entire article you can still read this from the archive

"CA3 on VWP Waivers and Removal Orders (Updated 5/6/10)

CA3 held that, although petitioner was once statutorily eligible for marriage-based adjustment of status, he may not, after expiration of his 90-day VWP stay, adjust his status as a defense to removal. (Bradley v. Attorney General of the United States, 04/29/10). AILA Doc. No. 10052933."

You can find the entire transcript of the Bradley case online. You don't need to go through the AILA database for it. Of course, you won't get the fascinating AILA commentary about the case.

Bradley wasn't the first case where a federal circuit court of appeals came to this conclusion. Momeni was probably the landmark case, in this regard. In that case, the court was quite explicit:

"There are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them."

http://caselaw.findlaw.com/us-9th-circuit/1448616.html

The bottom line is that these court cases have given USCIS the green light to deny AOS petitions from VWP overstays and just order their deportation, and a number of field offices are apparently doing exactly that.

[JimVaPhuong 4,863]

I am in the same situation, came here in July, and my B2 visa expires in january 2011, and i am preety sure that the moment you file for AOS you case is pending, meaning you are allowed to stay in the country till they give you a yes or a no.

I might be wrong, but a lot of people on this forum assured me it's like this, as i asked myself that specific question.

You don't have a problem. You entered with a visa, which means you have a right to due process if your AOS petition is denied. You can file a motion to have it reopened, submit an administrative appeal, submit an appeal with an immigration judge, submit an appeal to the Board of Immigration Appeals, and even appeal in the federal district court system. The government has to go through a process to remove you from the US - they can't just summarily order you deported.

The OP entered using the Visa Waiver Program which, among other things, requires them to waive any right to review or appeal of any decision by an immigration officer. This means a rookie border patrol officer could say "You're deported", and that would be the end of it - no review, and no appeal - they would have to leave the US. This also means a USCIS immigration officer can order them deported without having to go through the regular removal proceedings process. When they overstay their VWP entry, that's what IO's at some USCIS field offices have been doing, and the courts have upheld this practice.