Visa waiver overstay aos through citizen

[urban1129 0]

This is my story im 19 years old a us citizen my other half is 17years old she turns 18 this march.2011 im confuse on what the lawyer told me and what i have hear and really dont know what to do . So far the lawyer told me that my fiance could be risking but we dont really know ..It would be like gambling with uscis. i live in nj and being told by the lawyer and some people being denied and that they being helding up the vw cases. till the uscis headquaters makes a decision on what to do. I dont really know how laws are know but i dont want my fiance to get deported we have a child. i know her for as long as i could remeber she is asmuch of a citizen as i am we being together ever since middle school she my best friend. i rather see her hear illegaly than be deported. and wait for an immigration reform, or the dream act or filled her papers and risk it. i also hear that in ny they are still allowing vw on discretion or so but not really sure.

1. since she a minor would she get the 10 year ban from comminng back to us.( lawyer told me that she would beause it only counts when ur under 16.)?

2.The only evidence that we have that she came legally is her mom stamp passport .(her mom lost her I-94w years ago and me only got get little brothers i-94w. But lawyer told us thers and application to get it back or so) what would happen if we dont get and i94w back can we still apply do we have enough evidence with the stamp passport and her little brothers i94w to convince them at the interview?

3.what are the chances or her adjusting her status with no problem and what would happen if we get denied?

4. what would be of our baby would she lose her mom and not grow up having a normal family with two loving parents?

5.what should we do? should we do it know or wait till uscis comes up with a decison on what to do with visa waivers overstay?

6. please give me any advice . i would really appreciate it anything would help . thank you.

[YuAndDan 153]

This is AOS from Visit Visa topic, moving...

Posting same question is several forums will get confused answers.

See duplicate: http://www.visajourney.com/forums/topic/289533-visa-waiver-overstay-aos-through-citizen/

Edited January 5, 2011 by YuAndDan

[YuAndDan 153]

Overstay tends to be forgiven when AOS is based on marriage to US citizen, no waiver involved.

Moving to AOS from visit visa forum..

[RichiJenny 14]

1 - so she has an overstay over 1 year. if so thats a ten year ban, but can be overcome with an i601 waiver which is filed after the denial of the visa.

2- i think you could contact the customs and border protection for info regarding that.

3 - its risky, some vwp overstayers are having removal proceedings filed against them. whether you decide to take the risk is up to you.

4 - if the child is a usc, it can remain in the us. the fact that its mom will be approved or denied is something that will have to be overcome. the child has a right to stay with you there, if the non-usc goes back to her home country and files, and is ultimately be denied - which she will be, then you have to file a hardship waiver to overcome the 10yr bar. as you have a child together, this will be a hardship that you should address.

5 - no-one can tell you what to do. it could be quite a while if the outcome for vwp overstayers is a positive one, if indeed it is at all.

6 - good luck.

some others will also give yuo some advice, this is just pretty basic, personally, Id say its a risk by staying, and then again its a risk by leaving the country as returning needs the correct paperwork and approval.

[Krikit 1,163]

Merging duplicate threads.

Edited January 5, 2011 by Krikit

[Harpa Timsah 13,258]

Ugh! I had a whole answer typed out and it was lost in this move!

Anyway, OP:

Your fiance is currently a minor and is therefore not accruing any days of illegal presence. Once she turns 18, she will begin to accrue days of illegal presence and after 180 days will receive a ban.

You live in NJ, which is in the 3rd circuit, and your lawyer is right that they are either denying AOS from Visa Waiver Program overstay or are putting those cases on indefinite hold. You could try that route, but I think it is a gamble, as your lawyer says. Also you would not be able to appeal any negative decision.

I have a very rough idea here that you should discuss with a lawyer (maybe a different one than the one you asked because s/he said your fiance is accruing overstay after 16 b-day, which is untrue).

Right after her 18th b-day, you could get married (or marry before if that is legal in your state). Then she could go home and you could file a spousal visa petition for her (I am not sure if the spouse has to be 18 for you to obtain immigration benefit, something to ask your lawyer). You may also qualify for an expedite because you have a baby together and the US Citizen baby needs her care. An expedite is not guaranteed, but sitting here I think you have a good chance. Then she could come back, upon entry she would become a legal permanent resident, and she could become a citizen in 3 years. There would be no waivers required or other headaches besides being apart for a while.

I am not sure the age of your baby, and whether she has a place to stay in her country, etc, but this is an idea for you to consider. I wish you the best of luck and hope you figure something out.

[Deputy Purple 1,294]

The big issue is overstay of the Visa Waiver Program. Don't worry about the re-entry ban as USCIS won't impose that unless she stays beyond her 18th birthday by 180 days (3 yrs) or 1 year (10 yrs).

Recently USCIS has begun denying VWP Overstayers as about half of the Federal Appeals Courts have agreed that VWP Entrants have no right of appeal (signed it away by using the VWP).

The safest process would be for her to return home before any ban is imposed and file either a K-1 or CR-1 (if you get married before she returns).

In all the process should take a year or less so she would only need to be out of the country for a short amount of time.

[Harpa Timsah 13,258]

Overstay tends to be forgiven when AOS is based on marriage to US citizen, no waiver involved.

Moving to AOS from visit visa forum..

This is no longer true for people who entered on the Visa Waiver Program and overstayed. This is new in the last year and there are many lengthy discussions here on the topic. Some offices are proceeding normally, while others are putting the cases on indefinite hold, and still others are denying outright. 3rd circuit is one of the ones either denying or putting on indefinite hold.

See for instance here:

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

and VJ example of 3rd circuit indefinite hold:

http://www.visajourney.com/forums/topic/270498-weird-case/

[YuAndDan 153]

Ugh! I had a whole answer typed out and it was lost in this move!

Happens to me too sometimes, I hit the back page button, which returns you to the text box hopefully with all text in the box, then then select all text, copy, and then revisit thread in new location then reply and paste copied text.

[Harpa Timsah 13,258]

Happens to me too sometimes, I hit the back page button, which returns you to the text box hopefully with all text in the box, then then select all text, copy, and then revisit thread in new location then reply and paste copied text.

Thanks!

[brian-and-aurore 1]

Isn't there a law saying that if you're not a US Citizen but your child is born on US soil, you can apply to stay ?

I think one of my college professors discussed this during class one day...

[milimelo 4,196]

Isn't there a law saying that if you're not a US Citizen but your child is born on US soil, you can apply to stay ?

I think one of my college professors discussed this during class one day...

No, having a US born child does not give the parent who is not a USC or LPR or in other legal status (work, student visas) any rights to stay. What they can do is leave the country and have their child sponsor them once he/she is 21.

[Boiler 43,434]

Isn't there a law saying that if you're not a US Citizen but your child is born on US soil, you can apply to stay ?

I think one of my college professors discussed this during class one day...

D-!

[juliava 80]

A college professor is not an immigration attorney.

If it was that easy all illegal and out of status aliens would jump to have kids.

Edited January 6, 2011 by juliava

[Brother Hesekiel 2,235]

Yup.

There are -- literally --- at least 12,000,000 illegal aliens living in the US right now, of which, and that's only a guess, at least 2 to 4 million have a child that was born in the US of A and thus is, based on jus soli (as the 14th Amendment of the Constitution is currently interpreted), US citizens.

If this gave the parent or parents any right to stay, we all of the sudden would have millions of illegal aliens less.

One doesn't need a Ph.D. or the title of a Professor to figure that out. Maybe you texted your GF during the lecture, Brian . . .

Edited January 6, 2011 by Just Bob