ESTA To AOS Potential Problem?

[davidvs 320]

Does this attorney specialize in marriage based immigration or corporate based? (Large firms are more likely to specialize in the latter, so I ask..) 

 

I'll only add that I have seen many similar cases be approved with little to no issues.

[Kai G. Llewellyn 829]

I contend that the misrepresentation to the CBP officer is the single biggest problem here, and that's why by terms of VJ's ToS, I cannot advise you to AoS. Everything else, the overstay, the illegal work, can be forgiven when adjusting status on the basis of marriage to a US Citizen. And yes, you can AoS from ESTA/B but ONLY if plans change after arrival.

 

By admitting that she had immigrant intent all along, then she is by letter of the law not eligible to AoS as she should not have been admitted to the country. But as others have mentioned, it's virtually unenforceable unless CBP took a sworn statement from her promising that she would go home. Of course, if she is asked about it during an AoS interview, and tells the truth, her AoS would be denied. If she lies, then the application would probably be approved. If the lie is found out, she'd be removed for wilful misrepresentation and be subject to a lifetime bar.

 

The fatal nail in her case was that she admitted to having preconceived intent to remain. Like I said, it's the matter of telling your lawyer that you are guilty. And this is exactly why lawyers won't help with AoS here, because for her AoS to be successful, she would have to commit wilful misrepresentation which of course goes against the ethics that attorneys are bound to.

 

Further to add to this, if she does try and AoS and that ends up failing, she does not gain a right to see an IJ. The terms of the VWP continue to apply, so she could be deported without delay after a failed AoS.

 

Honestly, if you're really in love with her, you may want to consider moving to her country and waiting out the 10 year bar, and then coming back. It's the only honest path I see.

Edited July 19, 2022 by Kai G. Llewellyn

[mushroomspore 3,043]

13 hours ago, Generaltito said:

Is it still immigration fraud if we didn't even know eachother upon her arrival? She was being truthful when CBP spoke to her and she did that she was leaving. Once she experienced life in the US for a month or so she cancelled her return ticket and decided to stay.

The fraud aspect has 100% to do with the fact that she lied about her intentions to CBP upon entry and 0% with the fact you didn't know each other until recently. You say here she was "being truthful" yet in your very first post, you also say:

Quote

She was well aware her intent upon entry was never to go back home.

So she was not truthful. Since her fraudulent intentions are made plain here, I cannot advise you guys to pursue AOS. Many people's plans do genuinely change after entry on ESTA/VWP or B2 tourist visas and those people are allowed to AOS. But not people who were clearly planning from the beginning of lying to CBP and staying to adjust their status. Btw, it should be pointed out that US citizens get prosecuted for immigration fraud as well, not just the immigrant, if/when the fraud is discovered. Since immigration is federally regulated, immigration crime results in federal charges.

 

13 hours ago, Generaltito said:

My nephew is slowly sinking our boat but it seems like he has valid points.

Actually, it is your wife who sank her own boat by making these decisions of lying to federal agents about her intent and violating the temporary ESTA she was admitted with, not your nephew.

[Generaltito 4]

2 minutes ago, davidvs said:

Does this attorney specialize in marriage based immigration or corporate based? (Large firms are more likely to specialize in the latter, so I ask..) 

 

I'll only add that I have seen many similar cases be approved with little to no issues.

Hello davidvs,

 

Thanks for the response. She does not work on the corporate side. She handles everyday cases from marriage, AOS to DACA etc. She did tell us if she entered on a regular visa it's straightforward. The ESTA is not considered a visa. What I forgot to add is she entered with her EU passport (through grandfather) because it's very difficult to get a Visa for the US in her country. What also complicates the matter is she was not gainfully employed in her home country and she brought all her belongings with her as well as her birth certificate and University diploma. USCIS will likely ask which documents she brought with her. There is no reason to bring a University diploma with you when entering the US as a tourist on an ESTA. It almost seems as the attorney was trying to give me the hint that this situation raises flags everywhere (the marriage). When you apply for a AOS on an ESTA is a completely different ball game. There is alot more scrutiny. My wife is so shattered right now. Her family kept telling her to go back home before the 90 days expired and she didn't want to listen. 

[Generaltito 4]

1 minute ago, mushroomspore said:

The fraud aspect has 100% to do with the fact that she lied about her intentions to CBP upon entry and 0% with the fact you didn't know each other until recently. You say here she was "being truthful" yet in your very first post, you also say:

So she was not truthful. Since her fraudulent intentions are made plain here, I cannot advise you guys to pursue AOS. Many people's plans do genuinely change after entry on ESTA/VWP or B2 tourist visas and those people are allowed to AOS. But not people who were clearly planning from the beginning of lying to CBP and staying to adjust their status. Btw, it should be pointed out that US citizens get prosecuted for immigration fraud as well, not just the immigrant, if/when the fraud is discovered. Since immigration is federally regulated, immigration crime results in federal charges.

 

Actually, it is your wife who sank her own boat by making these decisions of lying to federal agents about her intent and violating the temporary ESTA she was admitted with, not your nephew.

Yes I completely agree with you 100%. She realizes now that she really screwed this up now.

[P0907 127]

31 minutes ago, Generaltito said:

We have another consult tomorrow with another firm and we will see what they have to say. 

What is that saying about doing the same thing over again hoping for a different outcome...

 

[Family 3,556]

27 minutes ago, Generaltito said:

have another consult tomorrow with another firm and we will see what they have to say. It seems like when the attorney heard her story she already knows she broke every rule. I sensed the attorney was hesitant to help us with the AOS as Kai said, if an attorney knows you are guilty he or she cannot defend you as innocent

Try an attorney who does immigration for the immigrant population segment of your area, so Latino Hispanic .

 

They do volumes of visa overstays for spouse IR and you will get a first hand account of questions asked by your Field Office and are probably attend these interviews weekly. 
 

No more nor less scrutiny to “ immigrant intent “ to an IR be it ESTA or BCC ( border crossing card given a few days and 20 miles radius for travel..so lots of “ rules” broken there that are irrelevant to the law) 
 

Although w ESTA you give up right to EOIR fight in removal, IF your marriage is REAL and lasts to AOS , she is good. 
 

Word to the wise, when you are told your case is scary/ problematic it always means  Bigger Retainer. 

 

[Family 3,556]

46 minutes ago, Generaltito said:

USCIS will likely ask which documents she brought with her. There is no reason to bring a University diploma with you when entering the US as a tourist on an ESTA. It almost seems as the attorney was trying to give me the hint that this situation raises flags everywhere (the marriage). When you apply for a AOS on an ESTA is a completely different ball game. There is alot more scrutiny. My wife is so shattered right now. Her family kept telling her to go back home before the 90 days expired and she didn't want to listen. 

Both of you are overthinking this . 
At your fingertips is the VJ search button , just try variations of “ ESTA overstay I-485“ and you will see many many first hand accounts over the course of time….in case your post here does not get responses from those that have successfully adjusted from ESTA to IR on a DIY budget.

 

 

Edited July 19, 2022 by Family

[mushroomspore 3,043]

50 minutes ago, Generaltito said:

Yes I completely agree with you 100%. She realizes now that she really screwed this up now.

But she is a former consulate employee. She is more aware than most people about the laws. It's also just basic common sense that governments regulate who comes in and out of their countries and that lying to those agents about the purpose of your entry is not a good idea. 

 

The truth is that actually, AOS applications from B2/VWP/ESTA does not incur "more scrutiny" and it's not "a whole other ball park". Generally, it's actually a rather simple process for applicants who have been completely honest. The other big detail that stood out is that her ex supposedly reported her to ICE. Unfortunately that is really not good. The overstay and illegal work actually are not the problems either. The lie about her intentions is. Alright I am now also out. Good luck to you both.

Edited July 19, 2022 by mushroomspore

[Kai G. Llewellyn 829]

9 minutes ago, Family said:

Both of you are overthinking this . 
At your fingertips is the VJ search button , just try variations of “ ESTA overstay I-485“ and you will see many many first hand accounts over the course of time….in case your post here does not get responses from those that have successfully adjusted from ESTA to IR on a DIY budget.

 

 

The problem is that we *know* for a fact that she lied on entry by the OP's own words. We cannot advise them to AoS. They of course are free to do so, and maybe their application is approved, maybe it isn't. But the issue is that we know there's fraud here we can't touch this. Had we not been told about the fraud, it would have been an 'easy peasy. Just AoS and be done with it.'. As I've said before, the wilful misrep on entry is the nail in the coffin of this case regarding our ability, or an attorney's ability to help out here.

 

OP has their answers. I don't see immigration lawyers saying much else if OP is telling them the same as us.

Edited July 19, 2022 by Kai G. Llewellyn

[discoverusa 233]

Waiting for an update on this case. Very interesting. 

[Family 3,556]

6 minutes ago, mushroomspore said:

The truth is that actually, AOS applications from B2/VWP/ESTA does not incur "more scrutiny" and it's not "a whole other ball park

Well said. You only get to play ball if you make it past POE and hit a Happily Ever After Marriage to USC Home Run. 

[Generaltito 4]

1 hour ago, mushroomspore said:

The fraud aspect has 100% to do with the fact that she lied about her intentions to CBP upon entry and 0% with the fact you didn't know each other until recently. You say here she was "being truthful" yet in your very first post, you also say:

So she was not truthful. Since her fraudulent intentions are made plain here, I cannot advise you guys to pursue AOS. Many people's plans do genuinely change after entry on ESTA/VWP or B2 tourist visas and those people are allowed to AOS. But not people who were clearly planning from the beginning of lying to CBP and staying to adjust their status. Btw, it should be pointed out that US citizens get prosecuted for immigration fraud as well, not just the immigrant, if/when the fraud is discovered. Since immigration is federally regulated, immigration crime results in federal charges.

 

Actually, it is your wife who sank her own boat by making these decisions of lying to federal agents about her intent and violating the temporary ESTA she was admitted with, not your nephew.My nephew just sent me 

Thanks for the responses everyone. My. Nephew just sent me this link. She makes it sound like it's virtually suicide to attempt to adjust status. I might call her tomorrow for a consult. I am interested in hearing her reasons.

Link below:

 

 

[Generaltito 4]

17 minutes ago, Kai G. Llewellyn said:

The problem is that we *know* for a fact that she lied on entry by the OP's own words. We cannot advise them to AoS. They of course are free to do so, and maybe their application is approved, maybe it isn't. But the issue is that we know there's fraud here we can't touch this. Had we not been told about the fraud, it would have been an 'easy peasy. Just AoS and be done with it.'. As I've said before, the wilful misrep on entry is the nail in the coffin of this case regarding our ability, or an attorney's ability to help out here.

 

OP has their answers. I don't see immigration lawyers saying much else if OP is telling them the same as us.

I agree. Regardless if the attorney is aware or not USCIS almost always asks why you overstayed according to the attorney today. She can't even tell them she fell in love because we didn't meet until almost a year after the overstay. That gap of almost a year will likely open another can of worms from the USCIS

[mushroomspore 3,043]

6 minutes ago, Generaltito said:

Thanks for the responses everyone. My. Nephew just sent me this link. She makes it sound like it's virtually suicide to attempt to adjust status. I might call her tomorrow for a consult. I am interested in hearing her reasons.

Link below:

 

 

Again, adjusting from B2/VWP/ESTA is NOT an issue ONLY if you were truthful at the point of entry that your stay was originally going to be temporary but then your circumstances changed AFTER entry (as she correctly says in the video). It's not "suicide" to adjust from B2/VWP/ESTA if your circumstances genuinely changed after you entered the US. But again, in your case, your wife was not truthful about her intentions at entry. That is the problem, not the process of adjustment from B2/VWP/ESTA.

Edited July 19, 2022 by mushroomspore