worried on aos

[Harpa Timsah 13,258]

I haven't heard anything negative about Texas. Even if the courts the have made the determination that overstay VWP's may not be eligible to AOS, they may not have instituted that in practice yet.

We had a similar case recently, Lisa011. She was brought here as a child under VWP and now adjusted status. Her circuit had also decided in the courts that VWP-overstays may not eligible to AOS, but we hadn't seen any real practical denials (except I suppose the court case the decision was based on). She was approved. Hopefully they take into account the fact that you were brought here as a child and act accordingly and approve you.

The offices we have heard problems from are San Diego (denying), Newark (putting on hold, but on person on hold just got approved), and Philly (hold).

Best of luck to you.

[britnick77 0]

Thank you!

[doctorbeat 6]

Weren't there some hold ups in NJ as well?

I could just be thinking of that couple who forgot to include an I-130 with their AOS package.

They went to their house and arrested the guy, but I don't think it was the overstay that was the main problem, it was the lack of I-130 if I recall correctly.

[Harpa Timsah 13,258]

Weren't there some hold ups in NJ as well?

I could just be thinking of that couple who forgot to include an I-130 with their AOS package.

They went to their house and arrested the guy, but I don't think it was the overstay that was the main problem, it was the lack of I-130 if I recall correctly.

Yeah, Newark is in NJ

The overstay was the main problem in that guy's case, but there was USCIS error involved as well, because they accepted the I-485 without the I-130 and also processed it (they got EAD etc). USCIS should have rejected the I-485 without a I-130 to base it on. That's why that case was good for news - they were sympathetic.

[trillium13 84]

I haven't heard of anyone who was denied or had their application held pending not being able to get the EAD. The problem was after interview where they were denied adjustment for overstaying the VWP or their application is currently pending adjustment.

I'm curious as to why people aren't being denied outright. Why put them through all the stress of biometrics and interview and waiting, only to deny them due to something that was known from the first day of filing?

[britnick77 0]

I'm curious as to why people aren't being denied outright. Why put them through all the stress of biometrics and interview and waiting, only to deny them due to something that was known from the first day of filing?

Exactly, the wait is the worst. Nevertheless I guess within a few months, I can inform everybody of the Texas office. I hope its good news.

[trillium13 84]

Exactly, the wait is the worst. Nevertheless I guess within a few months, I can inform everybody of the Texas office. I hope its good news.

We were actually long VWP overstayers. We were approved in Texas, but that was at the very very beginning of all of this #######. We just got under the wire. Our wait was excruciating. I really do wish you luck!

[JimVaPhuong 4,863]

I'm curious as to why people aren't being denied outright. Why put them through all the stress of biometrics and interview and waiting, only to deny them due to something that was known from the first day of filing?

The guy who screens the package at the lockbox facility doesn't have the authority to determine if an I-130 or an I-485 is approvable or deniable. He can only determine if the required documents and fees have been included. Only an IO can make a decision on the petitions, and it won't arrive on an IO's desk until the prerequisites have been completed, including biometrics. There are a myriad of reasons that could be used to deny, and many of them might be known the day the petition is filed, but only an IO can make that decision.

The attorney in San Diego who has blogged about this topic several times is of the opinion that USCIS retains discretion, and has the option of adjudicating the I-485 even in regions where a district court has determined that an I-485 can be denied outright for a VWP overstay. USCIS even confirmed this in their response to the cert request currently pending with the US Supreme Court in the Bradley v. Holder case. This doesn't mean that an individual IO still has that discretion, though. If the director of a field office issued a directive that these cases are to be denied, as has apparently happened at least in San Diego, then the IO no longer has discretion. They have to deny as a matter of policy. In San Diego, at least, they are sending denial notices to many people rather than hauling them in for an interview. In cases where they intend to deny outright, and still call the applicant in for an interview, I think they are just trying to make it a little easier to take them into custody.

It works the same way with any sort of petition. They don't deny until someone with the authority to deny has the petition in their hands, and that's often months after the petition was filed.

[SunDrop 59]

Can't pocket the fee either, if you just turn away at first sight.... but hey, that's just me being a cynic.

[Myopia 93]

I haven't heard anything negative about Texas. Even if the courts the have made the determination that overstay VWP's may not be eligible to AOS, they may not have instituted that in practice yet.

We had a similar case recently, Lisa011. She was brought here as a child under VWP and now adjusted status. Her circuit had also decided in the courts that VWP-overstays may not eligible to AOS, but we hadn't seen any real practical denials (except I suppose the court case the decision was based on). She was approved. Hopefully they take into account the fact that you were brought here as a child and act accordingly and approve you.

The offices we have heard problems from are San Diego (denying), Newark (putting on hold, but on person on hold just got approved), and Philly (hold).

Best of luck to you.

Harpa-Which case was taken off hold and approved?

Britnick---Sorry if I scared you. I didnt mean to make you nervous!

I havent heard of any actual denials either.

[britnick77 0]

Harpa-Which case was taken off hold and approved?

Britnick---Sorry if I scared you. I didnt mean to make you nervous!

I havent heard of any actual denials either.

Absolutley not, Im grateful you warned me. or else I may have had a heart attack. Atleast now I understand the process, now I will go in and cross my fingers and etc.

As for right now, I am shitscared to tell my wife. Shes a worrier, and this would really scare her, especially since were expecting.

[Harpa Timsah 13,258]

Harpa-Which case was taken off hold and approved?

Schatzi was approved, first posted here http://www.visajourney.com/forums/topic/270498-weird-case/page__view__findpost__p__4142394

I am now a bit confused by this person because they talk about overstaying a VWP in this post, but now in their sig is a VAWA case. Maybe it's both somehow.

Edited March 8, 2011 by Harpa Timsah

[trillium13 84]

Thanks Jim, that makes sense. It is unfortunate that people have to go through all that though and then get denied.

[JimVaPhuong 4,863]

Thanks Jim, that makes sense. It is unfortunate that people have to go through all that though and then get denied.

I think the denial is fair enough, under the circumstances. However, I think deporting them after the denial is extreme. I understand the government doesn't view deportation as a punishment, but in light of the fact that it makes future immigration substantially more difficult I think that it IS a form of punishment.

As an example, consider two people. Both entered using the VWP, both overstayed by a couple of months, and both are now married to a US citizen. They have two options; apply for AOS, or return to their home country and wait for a CR1 visa.

The first person decides to go the CR1 route. They return to their home country. Less than a year later they attend a consulate interview, get their visa, and come to the US as an immigrant.

The second person decides to go the AOS route. They file their papers, do the biometrics, and attend the interview. They are handed a denial slip, and then taken into custody for deportation. They now face a five year ban from the US. USCIS has effectively smacked them down for having the audacity to apply for AOS instead of going for an immigrant visa.

Personally, I'd like to see the AOS option removed for everyone who didn't enter with a visa that specifically allows immigrant intent. However, if they aren't going to do that then they should at least give the alien the opportunity to leave voluntarily without being deported.