Seeking advice on AOS

[payxibka 10,048]

1 minute ago, horizon1245 said:

Would it be a plus or a minus for the process that I’m French? What do y’all think 

Neither 

[lemur923 1]

On 9/22/2019 at 3:38 AM, HRQX said:

"Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21." https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

Assuming there wasn't a material misrep at POE, then no issue. If my assumption is incorrect, then "Yes" would be selected for Part 8 #65 of the I-485.

So you are saying that if you are an immediate relative (spouse) and you had no intention of staying before entering the US, you can overstay and adjust the status after 90 days?

[geowrian 22,339]

1 hour ago, lemur923 said:

So you are saying that if you are an immediate relative (spouse) and you had no intention of staying before entering the US, you can overstay and adjust the status after 90 days?

Both before and after 90 days, yes.

[lemur923 1]

1 hour ago, geowrian said:

Both before and after 90 days, yes.

So the problems for people on an ESTA only start when they start thinking you had double intention?

[geowrian 22,339]

2 hours ago, lemur923 said:

So the problems for people on an ESTA only start when they start thinking you had double intention?

The issue would be if one made a misrepresentation at POE, or if they actually had intent to adjust status but concealed it.

[Villanelle 4,123]

Also a denial for someone who entered as a tourist and is now adjusting can NOT be appealed. So if they get denied for a trivial paperwork reason they are out of luck.

[geowrian 22,339]

14 minutes ago, Villanelle said:

Also a denial for someone who entered as a tourist and is now adjusting can NOT be appealed. So if they get denied for a trivial paperwork reason they are out of luck.

I believe that's just for those admitted under the VWP, right? Normal tourists (i.e. B-2 entrants) do have an avenue for appeal / options for recourse I thought.

[HRQX 4,146]

1 minute ago, geowrian said:

I believe that's just for those admitted under the VWP, right?

Can they refile if denied?

[geowrian 22,339]

1 hour ago, HRQX said:

Can they refile if denied?

If no NTA is issued, then a denied application is just a denied application and they can file a new one if they are still eligible for AOS. However, see the note below. A somewhat recent policy change was to issue an NTA alongside (or , more likely in practice, shortly after) a denied application.

 

Basically, VWP travelers waive their ability to contest removal (except in the case of asylum) or appeal a decision of inadmissibility. ICE can order them removed directly.

A newly filed I-485 can be filed and approved (Edit: Prior to an NTA...once an NTA is issued, you cannot file an I-485 with USCIS), but also would not protect them from removal even as the IR of a USC. ICE could still remove them and they cannot (practically) contest it. So one could be removed and therefore the new I-485 being deemed abandoned.

See INA 217(b) for details (https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1187&num=0&edition=prelim).

 

Edit 2: A policy memo for some more info: https://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

Edited September 25, 2019 by geowrian

[HRQX 4,146]

2 hours ago, geowrian said:

ICE could still remove them and they cannot (practically) contest it.

So then the only short-term possible outcome would be a rare ICE decision not to remove. Like the DACA-lapsed individual Daniela Vargas: http://yalejreg.com/nc/due-process-waivers-in-immigration-law/

Edited September 26, 2019 by HRQX

[geowrian 22,339]

9 minutes ago, HRQX said:

So then the only short-term possible outcome would be a rare ICE decision not to remove. Like the DACA-lapsed individual Daniela Vargas: http://yalejreg.com/nc/due-process-waivers-in-immigration-law/

Well, "rare' isn't the word I would use, but they have discretion to pursue removal or not. Bu yhha, generally I would expect them to do so.

If that were to happen, best thing - IMHO - would be to leave the US ASAP then complete processing abroad.

[MrsH23 37]

22 hours ago, Villanelle said:

Also a denial for someone who entered as a tourist and is now adjusting can NOT be appealed. So if they get denied for a trivial paperwork reason they are out of luck.

What would a trivial paperwork reason be? Sorry just been reading up on people in a similar situation as me (adjusting from esta with overstay) and now I’m worried lol

[Villanelle 4,123]

Most common reason is failing to respond to RFE. Sometimes people move, sometimes it just gets lost in the mail. If you have online case access you should check periodically to see if an RFE is being sent to make sure you get it and respond in time. After that - 864 issues. Not being able to qualify/ no co-sponsor available. Thats all that is really 'trivial' that comes to mind. 

[geowrian 22,339]

1 hour ago, Villanelle said:

Most common reason is failing to respond to RFE. Sometimes people move, sometimes it just gets lost in the mail. If you have online case access you should check periodically to see if an RFE is being sent to make sure you get it and respond in time. After that - 864 issues. Not being able to qualify/ no co-sponsor available. Thats all that is really 'trivial' that comes to mind. 

Only one I would add is filing with missing required documents (they may not issue an RFE if an I-864 was never provided, or a marriage certificate was not provided, etc.).