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tomec07

vwp overstay

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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

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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.


AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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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.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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Thanks for the link Jim. :thumbs:

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?


AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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What is the big rush to adjust now?


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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What is the big rush to adjust now?

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


My N-400 Journey

06-02-2017 - N-400 package mailed to Dallas Lockbox

06-06-2017 - Credit card charged; received text and email confirming that application was received and NOA is on its way

06-10-2017 - Received NOA letter from NBC dated 06-05-2017

06-16-2017 - Received Biometrics Appointment Letter for 06-28-2017

01-19-2018 - Interview Letter sent

02-27-18 - Interview and Oath Ceremony. Finally US CITIZEN! 

My ROC Journey

03-08-2012 - I-751 package mailed to VSC

03-10-2012 - I-751 package delivered

03-14-2012 - Check cashed

03-15-2012 - NOA received, dated 03-12-2012

04-27-2012 - Biometrics appointment

11-23-2012 - ROC approved

11-28-2012 - Approval letter received

12-06-2012 - 10 years Green Card received

My AOS Journey

04-17-09 I-130&I-485&I-765 received by USCIS

04-19-10 AOS Approved

04-29-10 Green Card received

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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. :thumbs:

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 by caeremonarius

Our Timeline (AOS from VWP with short overstay):

Day 00: 19 Sep 2010 AOS package (I-485, I-130, I-131, I-765) sent to Chicago Lockbox

Day 18: 07 Oct 2010 Biometrics appointment letter received for 29 Oct 2010 (dated 01 Oct 2010)

Day 19: 08 Oct 2010 Walk-in biometrics (took about 10 minutes)

Day 47: 05 Nov 2010 Received letter (dated 01 Nov 2010) for Interview on 07 Dec 2010

Day 68: 26 Nov 2010 I-131 TOUCHED: AP approved

Day 73: 01 Dec 2010 I-765 TOUCHED: EAD approved

Day 76: 04 Dec 2010 AP received

Day 79: 07 Dec 2010 Interview at 1 p.m. (took maybe 15 minutes): RECOMMENDED FOR APPROVAL!

Day 82: 10 Dec 2010 EAD received (dated 01 Dec 2010)

Day 83: 11 Dec 2010 "WELCOME TO THE UNITED STATES OF AMERICA" letter received (dated 07 Dec 2010)

Day 90: 18 Dec 2010 GREEN CARD IN HAND! (dated 07 Dec 2010)


Day 000: 27 Nov 2012 ROC package (I-751) sent to California Service Center

Day 005: 03 Dec 2012 Received hard copy of NOA (dated 28 Nov 2012)

Day 244: 29 Jul 2013 Biometrics appointment letter received for 07 Aug 2013 (dated 27 Jul 2013)

Day 247: 01 Aug 2013 Walk-in biometrics (took about 25 minutes)

Day 308: 01 Oct 2013 Received approval notice for ROC (dated 24 Sep 2013)

Day 317: 10 Oct 2013 GREEN CARD IN HAND!

 

Day 000: 16 Sep 2017 N-400 filed online

Day 007: 23 Sep 2017 Biometrics appointment scheduled for 12 Oct 2017

Day 024: 10 Oct 2017 Walk-in biometrics (took about 10 minutes)

Day 059: 14 Nov 2017 Received notice that Interview scheduled for 19 Dec 2017

Day 066: 20 Nov 2017 Received hard copy of Interview notice (dated 14 Nov 2017)

Day 094: 19 Dec 2017 INTERVIEW (PASSED!)

Day 145:  08 Feb 2018 OATH CEREMONY

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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 by Myopia

03/09/2011 AOS Application Sent.
03/11/2011 (Day 0) Application Received
03/16/2011 (Day 7) NOA 1 (Text Email)+ (Checks Cashed)
03/19/2011 (Day 10) Hard Copy of NOA 1
03/28/2011 (Day 19) Biometrics letter 4/8/2011
04/08/2011 (Day 30) Successful Biometrics for I-765/I-485
05/13/2011 (Day 65) EAD received in the mail
05/14/2011 (Day 66) Email confirming EAD approved (Case updated online TOUCH)
05/20/2011 (Day 72) SSN In the Mail.

09/08/2011 (Day 200 ) Email notification of Interview.
10/11/2011 Interview at 26 Federal Plaza, NY!
Interviewed and Am expecting RFEs!
10/13/2011 (Day ***) Received RFE-- Requesting that I provide documentation to prove I was never married in Uk or Illin
02/11/2012 (Day ***) Service request..Told its being reviewed by supervisor

24th March 2012!!!!!!!!!!! Email notifiying me of CARD IN PRODUCTION
03/26/2012 (Day 376) Emails confirming that my I-130 and I-485 have been approved.

4/2/2012 Green Card In Hand!

Unbelievable that my journey took this long but Im thankful

Next Stop Premed...Yup!

3/24/2014 Application for conditions to be removed

9/22/2014 APPROVED without interview.

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