I-485 Denied.

[Myopia 93]

Maybe this will help you. There seems to have been some movement in the government regarding Visa Waiver Overstays and there may be some hope for you.

Recent Update

Particularly this section, "

I remember someone saying somewhere that the decision is made by the district office director..so you may be able to try to get some kind of appeal with him/her in order to adjust your case. So there may be a way to get the removal order lifted.

If I find anything else I will post it for you.

Ok I found some more links of lawyers who managed to succeed.

My link

I couldnt edit my post to add this.

You can try contacting this lawyer who was able to get removal proceedings stopped for a VWP applicant.My link

I dont know where you are as this lawyer is in NYC.

Edited January 26, 2011 by Myopia

[Used to be broken 143]

Maybe this will help you. There seems to have been some movement in the government regarding Visa Waiver Overstays and there may be some hope for you.

Recent Update

Particularly this section, "

I remember someone saying somewhere that the decision is made by the district office director..so you may be able to try to get some kind of appeal with him/her in order to adjust your case. So there may be a way to get the removal order lifted.

If I find anything else I will post it for you.

Its too late for that, the 'discretion" part is over they already decided to NOT exercise positive discretion.

The memo you cite is an answer from USCIS which has been mulling this over for some time and recently made clear again that they can and will do whatever the heck they want in these cases, despite all the advice on these many VJ threads that AOS can be accomplished under these circumstances.

IMHO prompt return to the country of origin and application for waiver is the better alternative, there was a very recent case decided in appeal against the petitioner in almost identical circumstances. What I found unique about it was they cited "working" without authorization as a negative discretionary factor in the appeal when it is commonly not held against spouse of US citizen.

So.. USCIS doesn't like extended appeals etc, it is better to go the I601 route, more than likely with a well prepared I601 packet the separation will not be long. File the I130 ASAP and get the process moving.

Sorry for the OP circumstances and unfortunately welcome to the I601/I212 forum.

Edited January 26, 2011 by brokenfamily

[Myopia 93]

Its too late for that, the 'discretion" part is over they already decided to NOT exercise positive discretion.

The memo you cite is an answer from USCIS which has been mulling this over for some time and recently made clear again that they can and will do whatever the heck they want in these cases, despite all the advice on these many VJ threads that AOS can be accomplished under these circumstances.

IMHO prompt return to the country of origin and application for waiver is the better alternative, there was a very recent case decided in appeal against the petitioner in almost identical circumstances. What I found unique about it was they cited "working" without authorization as a negative discretionary factor in the appeal when it is commonly not held against spouse of US citizen.

So.. USCIS doesn't like extended appeals etc, it is better to go the I601 route, more than likely with a well prepared I601 packet the separation will not be long. File the I130 ASAP and get the process moving.

Sorry for the OP circumstances and unfortunately welcome to the I601/I212 forum.

I don't agree. I cited a lawyer that was the only one who spoke about the San Diego memo. He updated his blog with some clarification and his opinion on whats new. Also one of the links was for a VWP who had the removal order waived. Its not about appealing as there is NO appeal with the case but there is no harm in trying to get the USCIS District director to look at the case again within the 30 days. Right or wrong?

VWP adjustments have always been discretionary. I remember when posters on forums were advising people to marry and file AFTER the 90 days.

Its worth a shot. After all they have nothing else to lose do they?

Maybe the interview didnt go as well as the OP thought. Isnt the I-130 usually approved before the interview?

[MrsP2010 20]

I don't agree. I cited a lawyer that was the only one who spoke about the San Diego memo. He updated his blog with some clarification and his opinion on whats new. Also one of the links was for a VWP who had the removal order waived. Its not about appealing as there is NO appeal with the case but there is no harm in trying to get the USCIS District director to look at the case again within the 30 days. Right or wrong?

VWP adjustments have always been discretionary. I remember when posters on forums were advising people to marry and file AFTER the 90 days.

Its worth a shot. After all they have nothing else to lose do they?

Maybe the interview didnt go as well as the OP thought. Isnt the I-130 usually approved before the interview?

I believe that the I-130 was approved.

[Myopia 93]

I believe that the I-130 was approved.

Yea the OP said that it was approved after the interview. I thought it was approved before.

[Used to be broken 143]

I don't agree. I cited a lawyer that was the only one who spoke about the San Diego memo. He updated his blog with some clarification and his opinion on whats new. Also one of the links was for a VWP who had the removal order waived. Its not about appealing as there is NO appeal with the case but there is no harm in trying to get the USCIS District director to look at the case again within the 30 days. Right or wrong?

VWP adjustments have always been discretionary. I remember when posters on forums were advising people to marry and file AFTER the 90 days.

Its worth a shot. After all they have nothing else to lose do they?

Maybe the interview didnt go as well as the OP thought. Isnt the I-130 usually approved before the interview?

Here is a recent precedent case upholding USCIS being able to deny AOS in VWP cases that are not filed in the 90 days; That is why I say don't tick them off by dragging it out, move out smartly and file I601.

Here is a case, dealing with VWP and adjustment of status..

The “adjustment 5 of status” remedy permits the Attorney

General, “in his discretion and under such regulations as he may

prescribe,” to adjust an alien’s status to that of a lawful

permanent resident if “(1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately available to

him at the time his application is filed.” 8 U.S.C. § 1255(a).

6More precisely, 8 U.S.C. § 1255©(4) generally makes

VWP entrants ineligible for the “adjustment of status” remedy,

but carves out an exception for VWP entrants seeking to adjust

their status on the basis of an immediate-relative petition. The

term “immediate relative” includes the spouse of a U.S. citizen.

See 8 U.S.C. § 1151(b)(2)(A)(I).

16

marriage-based adjustment of status under 8 U.S.C. §

1255©(4).5 He contends that, because 8 U.S.C. § 1255©(4)

permits VWP entrants to adjust their status on the basis of an

“immediate relative” petition,6 a VWP entrant pursuing such

an adjustment is “assimilated to the status of any other alien

who has applied for adjustment of status . . . and is not subject

to the VWP[] no contest-clause.” (Pet’r Br. 33 (citing

Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir. 2006).)

Any other interpretation, he contends, would be illogical and

would undermine congressional intent to make the adjustment

of status remedy available to VWP entrants. Again, he is

wrong.

See Bayo v. 7 Napolitano, 593 F.3d 495, 507 (7th Cir. 2010)

(en banc); McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir.

2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008)

(narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.

2006)); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008);

Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt

v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006).

17

Bradley’s position has already been rejected by six of

our sister Courts of Appeals, and we now join them in doing

the same.7 As the Court of Appeals for the Seventh Circuit

explained in Bayo,

[a]t first glance, it appears that there is a conflict

between the adjustment-of-status statute, 8

U.S.C. § 1255©(4), and the VWP statute, 8

U.S.C. § 1187(b)(2). Upon closer examination,

however, we believe that they can be reconciled.

During the time when a nonimmigrant visitor is

within the VWP’s 90-day window, she may

submit an adjustment-of-status application

based on an immediate relative. An application

submitted at that time would not represent a

challenge to removal. After the visitor overstays

her 90-day visit, however, the effect of the

VWP waiver kicks in, preventing any objection

to removal (except for asylum), including one

based on adjustment of status.

Bayo, 593 F.3d at 507. We agree and hold that, although

Bradley was once statutorily eligible under 8 U.S.C. §

1255©(4) for the adjustment he now seeks, he may not, after

the expiration of his 90-day stay, adjust his status as a defense

to removal. Bradley’s VWP waiver squarely forecloses him

from contesting his removal on this basis.

Edited January 26, 2011 by brokenfamily

[Used to be broken 143]

ROFLOL.. duh its the same case.. ! We are both coming to different conclusions.. but again based on the fact they already decided against exercising positive discretion in allowing the AOS here.. not sure there even is a procedure for a MTR here?

GET A LAYWER! see what they say, but don't get deported if possible.

Edited January 26, 2011 by brokenfamily

[Myopia 93]

ROFLOL.. duh its the same case.. ! We are both coming to different conclusions.. but again based on the fact they already decided against exercising positive discretion in allowing the AOS here.. not sure there even is a procedure for a MTR here?

GET A LAYWER! see what they say, but don't get deported if possible.

Nah what I am saying is, I believe there is a possibility that they could have their case reviewed by the Director of the USCIS field office. How can they p off the USCIS more than already has been done?

I remember a suggestion that the director be canvased directly in case of a denial because it wasnt the same thing as an appeal.

I will try to find the thread.

Seems to me when adjusting from a VWP you need to a) know the current policy of the state that you live in and b) possibly send a letter asking that USCIS adjust the case based on their discretion stating some facts.It may or may not help but one of the links that I posted was from a lawyer who stated that his client was successfully adjusted in the California area that came on a Visa Waiver and the reason being was that he send a leter asking USCIS to use their discretion to approve the application.

[zips 0]

Best of luck to you both . . . my fiance and I were going to AOS from his VWP but decided it was just too risky. He's since gone back to England and we're filing for a fiance visa instead. I hope you can sort this out without having to be apart for too long. The USCIS treats us all as guilty until proven innocent when all any of us wants is to just live a quiet happy life with our loved one.

[MrsP2010 20]

Best of luck to you both . . . my fiance and I were going to AOS from his VWP but decided it was just too risky. He's since gone back to England and we're filing for a fiance visa instead. I hope you can sort this out without having to be apart for too long. The USCIS treats us all as guilty until proven innocent when all any of us wants is to just live a quiet happy life with our loved one.

I'm a bit confused about something, why couldn't you have married in the US and then gone home to complete the CR1 filing? Why go the fiance route first? Sorry if that's a silly question.

Edited January 26, 2011 by MrsP2010

[Mrs O. 29]

Sorry to hear what you are going through. Wanted to do AOS via VWP but was advised against it because its a 50/50 thing, so I am on the CR1 route.

Hope things work out well for you in the end. Good luck!

[TracyTN 237]

Bottom line - the OP needs to get a lawyer to navigate all this and figure out what to do.

[cheekymonkey 0]

Thank you so much for all of your support and advise. I guess it is not looking too good for us but I am going to do whatever it takes to keep us together. My husband is in Grad school so can't come to England to live with me for several years and I can't stand the thought of being away from him for that long.

In answer to some of your questions:

Our I-130 was approved after the interview.

We filed in San Diego, California on July 7th 2010 after getting married on April 2nd 2009. We had our interview on December 7th 2010 and recieved the letter denying the I-485 on Jan 20th. It states that I have 30 days to file a motion to re-open the case. It does not say anything about having to leave. It also says "Although an immigrant visa is currently available to you, you are not eligible for adjustment of status".

"The decision resulting in the denial of form I-485 leaves you without lawful immigration status and you are present in the United States in violation of law. Also, as of this date, any employment authorization or advance parole granted based on the pendancy of your application is hereby cancelled".

We dont have a great deal of money but I am willing to spend whatever we have to hire a great attorney to help us through this, however I am having a hard time knowing who can really help us and who just wants our money. Any advice would be very much appreciate. We are running out of time and need as much help as possible.

i am willing to go back to the UK for a short amount of time if that is what it takes to file whatever forms I need to file but I am terrified of being banned for 10 years.

[juliava 80]

Thank you so much for all of your support and advise. I guess it is not looking too good for us but I am going to do whatever it takes to keep us together. My husband is in Grad school so can't come to England to live with me for several years and I can't stand the thought of being away from him for that long.

In answer to some of your questions:

Our I-130 was approved after the interview.

We filed in San Diego, California on July 7th 2010 after getting married on April 2nd 2009. We had our interview on December 7th 2010 and recieved the letter denying the I-485 on Jan 20th. It states that I have 30 days to file a motion to re-open the case. It does not say anything about having to leave. It also says "Although an immigrant visa is currently available to you, you are not eligible for adjustment of status".

"The decision resulting in the denial of form I-485 leaves you without lawful immigration status and you are present in the United States in violation of law. Also, as of this date, any employment authorization or advance parole granted based on the pendancy of your application is hereby cancelled".

We dont have a great deal of money but I am willing to spend whatever we have to hire a great attorney to help us through this, however I am having a hard time knowing who can really help us and who just wants our money. Any advice would be very much appreciate. We are running out of time and need as much help as possible.

i am willing to go back to the UK for a short amount of time if that is what it takes to file whatever forms I need to file but I am terrified of being banned for 10 years.

When did you arrive in US?In what state do you reside?Best of luck to you!!!

Edited January 26, 2011 by juliava

[TracyTN 237]

One of the posters above put a link to a blog on an immigration attorney's website (I'm putting it again below). You might reach out to them, see if they can help - not sure what they would charge. Remember that immigration law is federal so the attorney doesn't have to be local to you.

http://sarmientoimmigration.typepad.com/blog/2011/01/success-story-i-485-green-card-approval-based-on-marriage-based-i-130-for-french-beneficiary-in-san-.html

Also Catholic Charities provides low or no cost immigration legal assistance so that may be an avenue as well. I certainly wouldn't try to navigate this alone.

Please keep reporting back in this thread with what you find out. It may one day help others as well as get you going in the right direction.