Fled Asia due to pandemic, stuck on ESTA?

[mushroomspore 3,047]

45 minutes ago, Lucky Cat said:

I have seen a similar case denied Adjustment of Status for misrepresentation during a secondary interview.  Normally, you would be correct, but suspected misrepresentation for specific statements made during the secondary questioning might pose an issue.  That goes beyond intent.

Do you know what other factors were brought up for the misrepresentation? My understanding was that investigations into misrepresentation need to portray a number of fraudulent factors, not just misrepresented intent. If it was during a secondary interview, my guess is that the authorities had other info that raised their suspicions.

 

That said, @gameyy I adjusted from B2 status. I did not have the actual B2 visa because I'm Canadian and we don't need that. Similar to your wife's ESTA/VWP. AoS approved; only issue was the long wait. Since you've been married for years (at least 2, right?), she won't have to do Removal of Conditions. She'll get a 10 year card upon approval and then she can do citizenship.

[Scandi 4,358]

"Fled Asia due to pandemic", the pandemic started months and months ago, and has gotten waaaaay better in South Korea since. Surely she must've overstayed her 90 day stay by now?

Edited August 14, 2020 by Scandi

[geowrian 22,344]

17 minutes ago, mushroomspore said:

Do you know what other factors were brought up for the misrepresentation? My understanding was that investigations into misrepresentation need to portray a number of fraudulent factors, not just misrepresented intent. If it was during a secondary interview, my guess is that the authorities had other info that raised their suspicions.

I can't speak for certain if this is the case they are referring to, but here is a case that fits that description:

 

[Crazy Cat 45,752]

11 minutes ago, geowrian said:

I can't speak for certain if this is the case they are referring to, but here is a case that fits that description:

 

That is the one I was referring to.  I couldn't find it.  Thanks!!!!!!  It may or may not be relevant to the OP's case, but it has some similarities........

Edited August 14, 2020 by Lucky Cat

[Crazy Cat 45,752]

31 minutes ago, mushroomspore said:

Do you know what other factors were brought up for the misrepresentation? My understanding was that investigations into misrepresentation need to portray a number of fraudulent factors, not just misrepresented intent. If it was during a secondary interview, my guess is that the authorities had other info that raised their suspicions.

 

You might be correct......I am no expert......and I don't think we got an update on the zack27a case.  Ordinary, I would have said AOS will be no issue.....but it seems something triggered the OP's secondary inspection....then the conversation and comments by CBP. 

[geowrian 22,344]

5 minutes ago, Lucky Cat said:

That is the one I was referring to.  I couldn't find it.  Thanks!!!!!!  It may or may not be relevant to the OP's case, but it has some similarities........

Unfortunately, the OP never came back to update with how it ultimately got resolved. Was the NOID overcome, or was a denial successfully appealed? Were they able to refile with an I-601 for misrepresentation and get that approved?

 

But yes, the similarities are there. namely that it is a VWP visit and they were specifically questioned about intent to stay at POE.

VWP entrants generally have no means to contest a removal, and a denied I-485 (and after the 90 days of entry) is basis to begin removal even if another I-485 is filed (except in one circuit..I think 9th circuit IIRC?).

Intent itself was not given as the reason for denial, but the statements made to CBPO were determined to be a material misrepresentation.

 

Not saying the statements made in the OP's case wil be an issue here...but the specific responses at POE could be considered so they need to be aware of that.

[mushroomspore 3,047]

46 minutes ago, geowrian said:

I can't speak for certain if this is the case they are referring to, but here is a case that fits that description:

 

Thanks! Wow, 10-page thread..very long. I know a LOT of people are not so keen on the US immigration system allowing people to adjust from B2/VWP/ESTA. However, the feds do stipulate that "if circumstances change", it's allowed. So I never understood why people consider this route as "less legal" or "immoral" somehow. For the people who genuinely fit in this category, why would they be considered bad people? There's fraud in all the other categories too. I guess the only REAL way for the government to tackle this would be to no longer allow people to adjust from visitor visas and force everyone to pursue K1/IR1/CR1. But honestly, I do not see this move as actually doing anything to reduce fraud and misrepresentation. My prediction is that statistically, the levels would just be about the same 'cause liars gonna lie.

Edited August 14, 2020 by mushroomspore

[gameyy 1]

1 hour ago, Scandi said:

"Fled Asia due to pandemic", the pandemic started months and months ago, and has gotten waaaaay better in South Korea since. Surely she must've overstayed her 90 day stay by now?

We were leaving China. It was an emergency as our visas were cancelled suddenly by the Chinese government (something that is happening to many foreigners at the moment.) We only entered the US a few weeks ago, in July. She has not overstayed. We were originally planning on leaving mid-Septmeber. Of course, if there is a low-risk way to stay and change status, that would be ideal. But I am wary.

[gameyy 1]

As for what happened at POE (SFO, here in Cali, one of the few places where flights from mainland can land), according to the borders officers, the reason for the secondary interview was that when they asked what my wife's intent was, I stated that we weren't sure, that we were forced to suddenly leave China and only had time and circumstances to get my wife an ESTA, and that we would like to stay. When I said that last part, this is when they pulled her aside for the interrogation. I had looked up ESTA before, and knew that there was such a thing as change of status, so I assumed it would be ok to mention this. But apparently you can't enter with this intent, a fact which even the customs officials admitted was not very clear on the ESTA application process.

 

So far as I know, there were no other reasons for the secondary interview. We have been married for eight years and my wife has visited the US with me multiple times before, always using ESTA, and we've never had problems. Eventually it was resolved, because, and I quote, "We will make an exception for you since you were fleeing another country during a pandemic and had no choice but to enter on an ESTA."

[discoverusa 318]

I would try to AOS and explain very well during the interview that at time of entry you weren't sure what is going to happen and where you'll end up living during those uncertain times. Then decided to stay and adjust. 

[gameyy 1]

59 minutes ago, discoverusa said:

I would try to AOS and explain very well during the interview that at time of entry you weren't sure what is going to happen and where you'll end up living during those uncertain times. Then decided to stay and adjust. 

Thanks, this is also the direction I am leaning in now after doing some more reading on the situation. What would be the worst case scenario? Simply a refusal? Would there be any chance that my wife's ESTA could be cancelled? The border officers made it sound like she could be barred from entering for 5 years. Definitely something we want to avoid risking.

[mushroomspore 3,047]

10 minutes ago, gameyy said:

Thanks, this is also the direction I am leaning in now after doing some more reading on the situation. What would be the worst case scenario? Simply a refusal? Would there be any chance that my wife's ESTA could be cancelled? The border officers made it sound like she could be barred from entering for 5 years. Definitely something we want to avoid risking.

As soon as she files AoS, her ESTA (non-immigrant) is cancelled. AoS is declaring immigrant intent. You can't be non-immigrant and intending immigrant at the same time.

Edited August 14, 2020 by mushroomspore

[geowrian 22,344]

15 minutes ago, gameyy said:

Thanks, this is also the direction I am leaning in now after doing some more reading on the situation. What would be the worst case scenario? Simply a refusal? Would there be any chance that my wife's ESTA could be cancelled? The border officers made it sound like she could be barred from entering for 5 years. Definitely something we want to avoid risking.

Absolute worst case is AOS would be denied due to misrepresentation. Then they would move to remove her. Unless in an area where a VWP traveler can contest removal, she has no means to contest it and would be deported.

As a result, she would have a permanent bar due to misrepresentation + a 5 year bar due to removal. The permanent bar is waivable, but she would still have to go through consular processing abroad for an immigrant visa to return, and to qualify to file the waivers.

 

Much more realistic worst case, IMHO, would be a denial due to misrepresentation. Then refiling AOS with the misrepresentation waiver.

 

The very likely outcome would be no issue with what happened at POE and being approved for AOS without any issues.

 

The main difference between the last 2 circumstances would depend on if there was a misrepresentation at POE. Preconceived intent alone would not be cause for material misrepresentation.

As described, I did not see anything that could be reasonably construed as misrepresentation. But specifics will matter. A description of what happened isn't going to cut it...the specific questions and her responses would be what really matters. Assume they recorded those and act accordingly.

[igoyougoduke 1,734]

25 minutes ago, geowrian said:

Absolute worst case is AOS would be denied due to misrepresentation. Then they would move to remove her. Unless in an area where a VWP traveler can contest removal, she has no means to contest it and would be deported.

As a result, she would have a permanent bar due to misrepresentation + a 5 year bar due to removal. The permanent bar is waivable, but she would still have to go through consular processing abroad for an immigrant visa to return, and to qualify to file the waivers.

 

Much more realistic worst case, IMHO, would be a denial due to misrepresentation. Then refiling AOS with the misrepresentation waiver.

 

The very likely outcome would be no issue with what happened at POE and being approved for AOS without any issues.

 

The main difference between the last 2 circumstances would depend on if there was a misrepresentation at POE. Preconceived intent alone would not be cause for material misrepresentation.

As described, I did not see anything that could be reasonably construed as misrepresentation. But specifics will matter. A description of what happened isn't going to cut it...the specific questions and her responses would be what really matters. Assume they recorded those and act accordingly.

The bar to misrepresentation is very high. its not going  to be that easy to prove that but we live in nutcase times 

[Orangesapples 1,954]

5 hours ago, Lucky Cat said:

I have seen a similar case denied Adjustment of Status for misrepresentation during a secondary interview.  Normally, you would be correct, but suspected misrepresentation for specific statements made during the secondary questioning might pose an issue.  That goes beyond intent.

You'll need to provide proof this actually happened.