VWP Overstay! Starting to Panic!

[doctorbeat 6]

Hi guys, a member from another forum suggested that I join this one, as it's more relevant to our situation, so hi

I came to the States from the UK on the VWP.

My (now) wife and I really hit it off, and we decided we wanted to get married. We couldn't bear to be apart, so I didn't fly back and we got married two months after I arrived.

We were all set to start the AOS process (we even had most of the paperwork filled out) when we hit some problems.

First, my wife's hours at her job got cut. They were only cut slightly, but that took her earnings just below the threshold required for the affidavit of support.

Then she got pregnant, and then had a miscarriage. Then she got pregnant again!

This time, there was no miscarriage, but there were complications with the pregnancy which involved a lot of worry, and weekly visits to the hospital, and sometimes the ER.

As you can imagine, all of this meant that we had to put the AOS on a backburner for a while, but we thought this was no problem, because overstays are automatically forgiven right?

We actually thought it would be a good thing, because the longer we were married, the easier it would be for us to prove our marriage is bona fide.

Well, our situation has changed again:

Despite the complications, we now have a beautiful healthy daughter

My wife's hours at work have been reinstated, but now we have an additional family member, she still doesn't earn enough for the affidavit.

We don't know anyone who earns enough to be able to be a co sponsor. My wife has plenty of family, but none of them earn enough for their household to act as a co sponsor.

There have recently been changes to the laws regarding VWP overstays.

We have talked to my wife's boss about this.

We get along great with him, and he's given me an open ended job offer. I can start as soon as I have a work permit.

He also has a friend who's an immigration lawyer. He's given us his number and told us that he'll talk to him about a payment plan (we're pretty broke)

He has also said that he'd give my wife a pay raise so that she earns enough to sponsor me, but that depends on what his dad (co owner of the business) says.

Our biggest concern now is the changes to the laws. I have overstayed over a year now, and we've read the horror stories.

Our one ray of hope is that we live in NY, which (from what we gather) hasn't started deporting VWP overstayers who apply for AOS... Yet...

We'd love to hear people's opinions on this.

Are we 'safe' in NY for the moment?

Is the law likely to change while we are in the process of filing our papers?

Have there been any recent success/horror stories from applicants in the 2nd Circuit?

If the law changes, is it likely to do so soon? Timeframe?

We're really panicking right now, we only found out about the changes yesterday, and all of a sudden, our future is starting to look bleak...

[Boiler 43,438]

You are out of status so deportable at any time, you just need to come to their attention.

A local Immigration lawyer could tell you about his recent experiences, but for x months down the road, who knows.

You could just wait and see what happens, timeline unknown and probably unknowable.

[NigeriaorBust 4,087]

There have been increases in denials which may represent a policy change in the wind. Will it stay that way , who knows. Right now it seems NY hasn't started on this path but who can say when they will start.

[Brother Hesekiel 2,235]

Not sure about NY right now, but the longer you wait, the more risky it gets. So if you are willing to roll the dice, do whatever it takes to get your AOS petition filed as quickly as possible, but be prepared for it to be denied in which case you'll have to transfer your family to the U.K. You really don't have a choice, short of moving to Chicago ASAP and to file from there in 3 months' time.

[doctorbeat 6]

Can I ask why you suggested Chicago in particular?

It's funny you should suggest moving elsewhere to file, I found this post:

http://www.visajourney.com/forums/topic/291858-aos-from-overstayed-vw/

The guy's lawyer suggested he move to NY, wait 3 months, and then file, just as you did with Chicago.

It seems that the fact that we live in NY is very fortunate, as NY has its own ideas about this subject.

There was this case:

http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202479888581&slreturn=1&hbxlogin=1

Admittedly, the circumstances of the case are rather unusual (I'm not a Mafia member ) but it shows NY disagreed with the other states, at least in the context of this case.

[Harpa Timsah 13,258]

NY is NOT denying VWP-overstays, so file now. Skip the lawyer, file the forms yourself, save money, and file ASAP. VJ member Myopia has some links to court cases in NY that go against the current trend of denial, but we can't know if the national director would issue a nation-wide memorandum in the meantime.

Be thankful you live in NY and file now! Good luck! Congrats on the baby!

Edit: Doctorbeat as in the metronome?

Edited February 16, 2011 by Harpa Timsah

[doctorbeat 6]

NY is NOT denying VWP-overstays, so file now. Skip the lawyer, file the forms yourself, save money, and file ASAP. VJ member Myopia has some links to court cases in NY that go against the current trend of denial, but we can't know if the national director would issue a nation-wide memorandum in the meantime.

Be thankful you live in NY and file now! Good luck! Congrats on the baby!

Edit: Doctorbeat as in the metronome?

Thanks, your advice seems to echo what I've been reading.

We can't really afford a lawyer, but we're going to use one even if it's just to get them to check the paperwork before we send it.

We're both reasonably smart people, but we don't want any mistakes to slow down the process, as time is so critical.

And 'Doctorbeat' is a play on our surname. I would explain, but I'm way too paranoid to give my real name on a public forum until this mess is sorted out

[Boiler 43,438]

It would be quicker to diy, if you have the supporting docs to hand.

[doctorbeat 6]

It would be quicker to diy, if you have the supporting docs to hand.

Yes, I believe so too, but my wife is really panicking and she says she'll feel better if we get a lawyer.

I guess we'll wait and see what happens. Maybe when we get our packets together she'll feel better about filing it ourselves.

I just want to get the ball rolling asap, as the situation could change at any moment.

This is all providing her boss's dad agrees to the pay raise. If not, then I don't know what we're going to do

[Deputy Purple 1,294]

A lawyer isn't going to help with anything in your situation. If NY decides to deny VWP Overstayers by the time you file then chances are that the Federal Appeals court covering NY will not hear your appeal as half of the Federal Courts have already agreed with USCIS that Once in overstay VWP entrants have no right of appeal so the courts don't have jurisdiction.

Just follow the guides and get the AOS filed ASAP...

[doctorbeat 6]

A lawyer isn't going to help with anything in your situation. If NY decides to deny VWP Overstayers by the time you file then chances are that the Federal Appeals court covering NY will not hear your appeal as half of the Federal Courts have already agreed with USCIS that Once in overstay VWP entrants have no right of appeal so the courts don't have jurisdiction.

Just follow the guides and get the AOS filed ASAP...

Yes, we're aware of that.

My wife wants a lawyer to make sure we have filled out the forms correctly and got all our ducks in a row as far as supporting documentation etc. is concerned.

She's worried about our progress being slowed down by a RFE, not filing the papers in the right order, or similar.

I don't really think it's necessary, but I can see her point.

If it makes her feel more comfortable, I guess it's worth it.

Edited February 16, 2011 by doctorbeat

[doctorbeat 6]

This couple somehow managed to omit the I-130 when they filed, which led to the guy being arrested as the delay was enough to start the overstay clock ticking (the couple are based in NJ, which is one of the states that's being nasty about overstays)

http://www.nytimes.com/2010/05/15/nyregion/15visa.html?pagewanted=1&_r=1

I don't know how two Ph.D students managed to miss something so obvious, but it does demonstrate the need to be really careful when getting the documents in order.

I'd hate it if NY changed their policy while we were correcting mistakes...

[milimelo 4,205]

Moving to AOS from student, tourist, work visa.

[doctorbeat 6]

Moving to AOS from student, tourist, work visa.

Oops, I guess I posted in the wrong area. My apologies.

[Boiler 43,438]

This couple somehow managed to omit the I-130 when they filed, which led to the guy being arrested as the delay was enough to start the overstay clock ticking (the couple are based in NJ, which is one of the states that's being nasty about overstays)

http://www.nytimes.com/2010/05/15/nyregion/15visa.html?pagewanted=1&_r=1

I don't know how two Ph.D students managed to miss something so obvious, but it does demonstrate the need to be really careful when getting the documents in order.

I'd hate it if NY changed their policy while we were correcting mistakes...

Lawyers make mistakes, or their para legals who actually do the work do.