vwp overstay

[tomec07 0]

hi i came to the united states on vwp on sept 2001 overstayed since then (9 years) im now married with 2 sons who are 8 and 3 my wife is us citizen we have been married 3 years im planning on filing for adjustment this fri but im hearing of a lot of denials , im filing in chicago lockbox and lawyer says it will go to cleveland office , so i dont know if i should wait or go for it ?? thanks

[Harpa Timsah 13,258]

Different US circuit courts (and the local field offices that fall under their jurisdiction) are handling this differently. Some are approving, some are denying. Ohio is in the 6th district court. Map here: http://www.uscourts.gov/court_locator.aspx I *think* I remember this being a circuit that was issuing approvals based on reports here, but I am not sure. There is also the possibility that your circuit was approving last month and now got a new directive to deny. In order to make your decision, you should find out what your local office is doing. A GOOD lawyer may know the latest update. Beware a lawyer who has not done an AOS from VWP overstay in years or even a few months. Good luck.

[JimVaPhuong 4,863]

Different US circuit courts (and the local field offices that fall under their jurisdiction) are handling this differently. Some are approving, some are denying. Ohio is in the 6th district court. Map here: http://www.uscourts.gov/court_locator.aspx I *think* I remember this being a circuit that was issuing approvals based on reports here, but I am not sure. There is also the possibility that your circuit was approving last month and now got a new directive to deny. In order to make your decision, you should find out what your local office is doing. A GOOD lawyer may know the latest update. Beware a lawyer who has not done an AOS from VWP overstay in years or even a few months. Good luck.

Unfortunately, the 6th circuit is one of the federal appeals courts that have decided a VWP overstay cannot adjust status.

Lacey v. Gonzales, 2007

http://vlex.com/vid/lacey-v-gonzales-29649246

This doesn't mean the Cleveland field office is automatically denying AOS for VWP overstays, but it doesn't bode well.

tomec07, there is no point in waiting. If the situation is not already bad at the Cleveland field office then there is no reason to believe that it's going to get better anytime soon. Five of the thirteen federal district courts of appeal have already issued judgments that a VWP overstay cannot adjust status. There's no reason to believe that other district courts will decide differently, nor that when this eventually reaches the US Supreme Court that they will override the decision of a large chunk of the district courts. Some field offices have been holding AOS applications from VWP overstays indefinitely, which would seem to imply that the USCIS director may be issuing a policy memorandum on this soon, and it's likely that policy memorandum is going to establish a uniform policy for all field offices. I seriously doubt that policy memorandum is going to go against the findings of those five district courts, especially since it's long been the position of USCIS that adjustment of status after entering as a non-immigrant has a high potential for abuse.

In other words, you have nothing to lose by filing. The situation is likely to get worse rather than better. You're already facing a ban and the requirement for a hardship waiver if you leave the US. You can remain in the US as an illegal immigrant, or you can roll the dice and take your chances. If you're approved then you win. If you're not then you must leave the US and either wait out the ban or try to get a hardship waiver.

[Harpa Timsah 13,258]

Thanks for the link Jim.

As an anecdote, here is a report of an approval from a VWP overstayer whose local office was Columbus, OH. http://www.visajourney.com/forums/topic/270498-weird-case/page__view__findpost__p__4345469

They overstayed less than a month. Is this where you think the "discretion" comes in?

[Boiler 43,434]

What is the big rush to adjust now?

[juliava 80]

What is the big rush to adjust now?

Apparently Columbus,OH office still approves AOS from VWP overstays.

[caeremonarius 26]

Unfortunately, the 6th circuit is one of the federal appeals courts that have decided a VWP overstay cannot adjust status.

Lacey v. Gonzales, 2007

http://vlex.com/vid/lacey-v-gonzales-29649246

This doesn't mean the Cleveland field office is automatically denying AOS for VWP overstays, but it doesn't bode well.

We adjusted from VWP with a short overstay (in fact, we're the couple that Harpa mentions in the quote below). Our lawyer is based in Cleveland, but attended our interview in Columbus. (You can read the reasons why we chose to have an attorney present in our review of the interview: just click the "Timeline" link on the left.) Our lawyer seemed to indicate that things were better in Cleveland than Columbus. However (and this is a big HOWEVER) our overstay was about 50 days, not several years.

Thanks for the link Jim.

As an anecdote, here is a report of an approval from a VWP overstayer whose local office was Columbus, OH. http://www.visajourney.com/forums/topic/270498-weird-case/page__view__findpost__p__4345469

They overstayed less than a month. Is this where you think the "discretion" comes in?

Actually, it was just over a month, but it never came up during our interview. In fact, about all the IO said about VWP was, "How did you (my immigrant wife) enter the country? [The IO looked through the file.] Oh, I see, Visa Waiver." That's the only mention of VWP that came up. In fact, the slight overstay didn't even come up at all.

Apparently Columbus,OH office still approves AOS from VWP overstays.

Well, they did as of December 7, 2010. As Jim mentioned, things change, and it's important to have an attorney who is aware of the changes as they occur. Our lawyer wasn't too concerned about our short overstay, but I'm sure he would have had a different attitude toward a longer one. Again, as Jim said, at this point you really have no choice but to roll the dice.

Good luck!

AJ

Edited January 26, 2011 by caeremonarius

[Myopia 93]

I think it would be prudent if you wish to file to send a letter addressed to UCIS that asks them to grant you discretion when it comes to your case. Making mention of the favorable aspects of your case such as a) Being a immediate spouse of a USC, b) Being an active father to two USC children, c) Any community work that you may have done to show good moral character, something along those lines. I say this because your office has definetly denied AOS from VWP yet there have been successful ones too. Your desire must be to have a successful application. One of the things that I saw in the pending Supreme Court opinion case that worked against the applicant was his missing two interviews with USCIS,his use of the VWP 5 times before , illegal working among other things.

It seems to me that we need to approach VWP adjustments for what they are--the last chance corral to adjust.

If you are denied then you are denied but as the law reads VWP applicants are immediately deportable anyway so a removal order isnt even needed.

Best of everything

Edited January 26, 2011 by Myopia