2 Nationalities

[Brother Hesekiel 2,235]

Yep,

just as I thought: Pandora's box!

Frank, Adjustment of Status for people who overstayed their Visa Waiver has become somewhat of Russian Roulette. Unfortunately, he has no choice but to roll the dice. He needs to use his Italian passport for AOS as that is the one he used to lawfully enter the US, and the I-94W documents the fact .

He can hope for the best but needs to be prepared to be disappointed. Others will explain more in detail (I am on a tiny netbook and am typing with one oversized finger), and he needs to understand what is at stake here: not only a denial but also a deportation order and a 10-year bar requiring two waivers in order to come back eventually.

[payxibka 10,044]

Yep,

just as I thought: Pandora's box!

Frank, Adjustment of Status for people who overstayed their Visa Waiver has become somewhat of Russian Roulette. Unfortunately, he has no choice but to roll the dice. He needs to use his Italian passport for AOS as that is the one he used to lawfully enter the US, and the I-94W documents the fact .

He can hope for the best but needs to be prepared to be disappointed. Others will explain more in detail (I am on a tiny netbook and am typing with one oversized finger), and he needs to understand what is at stake here: not only a denial but also a deportation order and a 10-year bar requiring two waivers in order to come back eventually.

What will the AOS denial be for?

Unless there was some sort of misrepresentation made at the time of entry...

Edited February 14, 2011 by payxibka

[Brother Hesekiel 2,235]

What will the AOS denial be for?

Unless there was some sort of misrepresentation made at the time of entry...

"He entered the US over 2 years ago without a visa" implies to me an overstay with late AOS from VWP.

Do I really have to explain this?

[payxibka 10,044]

"He entered the US over 2 years ago without a visa" implies to me an overstay with late AOS from VWP.

Do I really have to explain this?

overstays are forgiven... do i have to explain this?

[belinda63 2,981]

The current trend in some districts is to not approve or to outright deny AOS applied for after the 90 VWP stay. I don't know the specific courts/districts which are doing it but there are a few threads floating around where it has happened.

Seems USCIS is catching on the the immigration via VWP express.

Edited February 15, 2011 by belinda63

[Brother Hesekiel 2,235]

overstays are forgiven... do i have to explain this?

Payxibka,

apparently you have been in a coma or in a galaxy far away for at least the past 5 or 6 months. Otherwise you would not insist of making a fool out of yourself. I simply refuse to educate you about the "latest" and even not so late developments in Visa Waiver overstay cases, but if you invest about 15 minutes of your time you can get up to speed easily.

It's 2011 now, and what worked like a charm in mid 2011 now only works in the most unusual cases, lately once in Chicago when VJ member Lisa got approved. Other USCIS field offices will either outright deny AOS, often combined with a deportation order signed for by the adjudicating I.O., or put them on indefinite hold.

[Harpa Timsah 13,258]

overstays are forgiven... do i have to explain this?

Here is some reading:

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

and the latest VJ denial case:

http://www.visajourney.com/forums/topic/292498-i-485-denied/

We have discussed this in great detail in this forum.

Bob's question was sound.

[payxibka 10,044]

Here is some reading:

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

and the latest VJ denial case:

http://www.visajourney.com/forums/topic/292498-i-485-denied/

We have discussed this in great detail in this forum.

Bob's question was sound.

from what I read the overstay was not the issue for the denial but a timely filing....

[mof 15]

from what I read the overstay was not the issue for the denial but a timely filing....

Indeed! As in: "your 90 days are up and you have not filed in a timely manner and are, therefore, in overstay." Same thing, you see? You have 90 days in the US and you need to file (and have USCIS receive) your application/petition BEFORE the 90 days are up. If you fail do to so, you are no longer legally present in the US. Thus, some USCIS offices argue, USCIS no longer has jurisdiction over you because your application would be equivalent to a request to stop deportation (or stop removal proceedings) - a legal request which a VWP visitor signs away when they enter the US as a VWP.

Edited February 15, 2011 by mof

[payxibka 10,044]

Indeed! As in: "your 90 days are up and you have not filed in a timely manner and are, therefore, in overstay." Same thing, you see? You have 90 days in the US and you need to file (and have USCIS receive) your application/petition BEFORE the 90 days are up. If you fail do to so, you are no longer legally present in the US. Thus, some USCIS offices argue, USCIS no longer has jurisdiction over you because your application would be equivalent to a request to stop deportation (or stop removal proceedings) - a legal request which a VWP visitor signs away when they enter the US as a VWP.

oh... far from the same thing.... the overstay was not the reason

[Harpa Timsah 13,258]

oh... far from the same thing.... the overstay was not the reason

Yes it was. We have discussed this many many times. The very short answer is that a VWP entrant waives their rights to an immigration hearing and that once they overstay, they are immediately deportable. Therefore, applying for AOS after your overstay is essentially asking for a stay of removal, as mof was trying to explain. There is a trend about a year old that USCIS offices are taking this approach and either denying AOS from an overstayed VWP or putting them on indefinite hold. People who enter with a valid visa do not have this problem.

Anyway, I don't believe a lengthy discussion of this issue belongs in this thread.

[Myopia 93]

The current trend in some districts is to not approve or to outright deny AOS applied for after the 90 VWP stay. I don't know the specific courts/districts which are doing it but there are a few threads floating around where it has happened.

Seems USCIS is catching on the the immigration via VWP express.

Enough with the VWP express snipes.It's annoying.

Payxibka,

apparently you have been in a coma or in a galaxy far away for at least the past 5 or 6 months. Otherwise you would not insist of making a fool out of yourself. I simply refuse to educate you about the "latest" and even not so late developments in Visa Waiver overstay cases, but if you invest about 15 minutes of your time you can get up to speed easily.

It's 2011 now, and what worked like a charm in mid 2011 now only works in the most unusual cases, lately once in Chicago when VJ member Lisa got approved. Other USCIS field offices will either outright deny AOS, often combined with a deportation order signed for by the adjudicating I.O., or put them on indefinite hold.

Lisa's case wasnt unusual. She never mentioned any special situation with her case other than she was very nervous.

[VanessaTony 3,567]

Ohmygoodness. The above is so wrong. Payxibka is correct. It has to be the passport of the country he entered the US with, otherwise they're going to question his entry. You cannot change passports to exit a country. Likewise, you cannot change passports to adjust status.

As an aside, my Canadian passport didn't confuse them at all when I filed, even though I am from the UK. It shows the place of birth right on the passport.

YOUR comment is completely incorrect it does NOT have to be the passport they entered with. I entered on my UK passport and used my Aussie passport to apply for the K1. I will assume you'll think this is a different situation but it's not. Your passport simply proves entry with it's entry stamp, and it's a COPY of that that they require.

When I did mine I took a copy of my passport with the entry stamp page. Had zero issues and in fact was told my UK passport was irrelevant to the process. Just like my ticket stubs were just proof of entry so was my passport. You can PICK your passport to use. I would have used my Aussie passport to AOS within the US if I had chosen that path, though I entered with UK.

**Edit - You CAN change passport to exits and in fact I was FORCED to. I entered with UK and was returning to Australia. The airline refused to accept my UK passport because I needed an Aussie visa and it had none so they used my Aussie passport. When I stated "I thought I had to leave on the passport I entered with" they assured me that was not the case, that I only needed to return the I-94 and that I should use the passport with the appropriate visa (or passport that didn't require one).

Edited February 15, 2011 by Vanessa&Tony

[VanessaTony 3,567]

Hello,

If a person immigrated to the US with an Italian passport ( no visa tourist visa required) and married an American but he was born in Ecuador, which nacionality should he use to apply for his temporary resident card? Does he have to leave the country?

OP - your profile states Miami as your home.

Here is a thread that lists the court districts currently denying AOS: http://www.visajourney.com/forums/topic/292814-what-sates-have-been-denying-visa-waiver-overstays/ Florida is in the 11th which isn't in the list of currently denying so you SHOULD be okay but like Bob said, it's still a risk you should be aware of.

[payxibka 10,044]

YOUR comment is completely incorrect it does NOT have to be the passport they entered with. I entered on my UK passport and used my Aussie passport to apply for the K1. I will assume you'll think this is a different situation but it's not. Your passport simply proves entry with it's entry stamp, and it's a COPY of that that they require.

When I did mine I took a copy of my passport with the entry stamp page. Had zero issues and in fact was told my UK passport was irrelevant to the process. Just like my ticket stubs were just proof of entry so was my passport. You can PICK your passport to use. I would have used my Aussie passport to AOS within the US if I had chosen that path, though I entered with UK.

**Edit - You CAN change passport to exits and in fact I was FORCED to. I entered with UK and was returning to Australia. The airline refused to accept my UK passport because I needed an Aussie visa and it had none so they used my Aussie passport. When I stated "I thought I had to leave on the passport I entered with" they assured me that was not the case, that I only needed to return the I-94 and that I should use the passport with the appropriate visa (or passport that didn't require one).

You are mixing apples and oranges... You visited on your UK passport... not an issue... You got your K-1 on your Aussie passport and that is the passport you used on your most recent entry. That is the one the US has your current status recorded under. That is the passport you would use on your AOS form because it is the one showing the entry stamp. Other than that the passport is inconsequential when applying for AOS.

As for departures... the US does not give a rats @ss what passport you show.... When departing the USA you do NOT go through any passport control. The airline employees are NOT the CBP, USCIS or any other agency of the US government.

Edited February 15, 2011 by payxibka