ESTA To AOS Potential Problem?

[Generaltito 4]

17 minutes ago, Jorgedig said:

Not sure how you got that she told the truth at POE, when he quite clearly said she never intended to return home, brought all her possessions, copies of vital documents, etc.   

 

This isn’t the standard VJ-line of “plans changed.”

That is correct. She told CBP she was only staying 4 weeks I believe. Did bring all her clothes, birth certificate university diploma etc

[Rocio0010 5,560]

1 hour ago, Family said:

The entire narrative is through our young law student, as is the “ unpinned grenade “ of stress OP and wife are going through. 
 

 

I rely on this

 

OP changed the original story from “she knew full well she wasn’t going back to home country” to your quote. By his own admission she intended to comit fraud when entering on an ESTA

[Rocio0010 5,560]

5 hours ago, Family said:

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…

Right… but did all of these beneficiaries misrepresented themselves at the POE?

[arken 4,197]

2 hours ago, Generaltito said:

He isn't guaranteeing the AOS approval. He said the situation is messy. We have an appointment tomorrow to bring him all the information he asked for. He wants to study the situation and then share his thoughts with us. He was kind enough to send us some decisions from a few of his cases involving ESTA overstays and marriage. 3 of the 7 were approved.

Of course the lawyer gonna scare you as much as he can and say he'll help to possible approval for a good amount of fee. Whether you go through a $4K lawyer or by yourself, AOS approval possibility is the same. Anyway good luck. Check esta to AOS cases in this forum. You'll be surprised by the approval rate.
 

 

[arken 4,197]

41 minutes ago, Rocio0010 said:

Right… but did all of these beneficiaries misrepresented themselves at the POE?

Innocent until proven i guess. Nobody can prove OP's wife misrepresented at the POE the same way all the other thousands who come to US on non immigrant visas but then go with AOS within few months. That's the reality. They just kept their thinking to themselves. Anyone saying she told them she was planning to stay beforehand will be hearsay. She got admitted legally. Unless she perjures herself during AOS interview or someone has a clearcut paper-trail evidence of such, it won't be misrepresentation. 

[TBoneTX 43,020]

The "change of mind at baggage claim" is a prevalent phenomenon.

There's no real fix unless laws are changed to disallow AOS from tourist visas, ESTA, and similar.

[Redro 4,587]

5 hours ago, Jorgedig said:

The issue isn’t whether the relationship is bonafide…..   very much doubt there would be a Stokes.

 

The issue is misrepresentation and eligibility for an immigrant benefit.

We don't know what the wife told the ex-boyfriend. We don't know if he wrote a letter and the contents if he did.

He (the ex) might not know she intended to overstay when she first arrived in the US.

For all we know, he wrote a letter informing them she is currently in the US out of status and working illegally (two issues that are forgiven once you marry and adjust through a US citizen). 

 

OP only found out the truth a couple a days ago so I'm thinking she didn't tell the ex the entire story. 

But, if USCIS pays attention to a bitter USC who wrote an angry letter about someone who overstayed they might be subject to a Stokes. 

 

From my reading in this forum and in other forums. Generally the overstay is not questioned and the illegal work is forgiven. If USCIS has not been informed about her presence I don't see them finding misrep if they don't ask any questions  about her entry at the interview. IF they do ask questions, I'm thinking OP will be the weak link as wife is able to keep a secret for several months. 

 

 

Edited July 20, 2022 by ROK2USA

[Rocio0010 5,560]

Even though there’s no paper trail admitting to the fraud when she cleared CBP, readers of this thread are aware that she lied and misrepresented herself. Had she confessed she had no intentions of leaving the US once ESTA expired, they’d had put her in the next flight home. 

Some seasoned users are saying she could AOS. Isn’t that condoning fraud? And, as such, against TOS?

[arken 4,197]

45 minutes ago, Rocio0010 said:

readers of this thread are aware that she lied and misrepresented herself.

It's hearsay at this point and can't judge solely based on that. Correct that if she had asked here before traveling on esta, nobody here would advise her to travel with the intent to AOS. But the fact that she is already  here, what she was thinking way before is irrelevant imho. Of course she is more than welcome to tell the IO what she had in mind from the very beginning.

 

 

[Family 3,463]

14 hours ago, Family said:

On 7/19/2022 at 12:16 AM, Generaltito said:

He seems convinced she would be denied for adjustment of status and they would start removal proceedings anyway. He also mentioned something about a motion to reopen would likely be denied.

The entire narrative is through our young law student, as is the “ unpinned grenade “ of stress OP and wife are going through. 
 

 

On 7/19/2022 at 12:24 AM, Generaltito said:

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

I rely on this

OP good luck with your consult today and if you feel inclined to please share redacted examples of the denial decisions based on “ intent “ that  you were given. 
 

Intent alone is not sufficient for denial, and since IR s are exempted from preconceived intent ( B-2 / VWP or ESTAs ) the 3 out 7 success rate is unusual, if circumstances are similar to your wife’s. 

Some helpful links , case cites and other attorneys ref as you search for one best fitted to your circumstances http://myattorneyusa.com/uscis-and-the-3060-day-rule-and-the-effect-of-preconceived-intent-on-adjustment-of-status

 

You  posted asking for “ good or bad opinions “ , don’t give up until you get a competent informed legal opinion . 
 

According to the Innocence Project , 30 % percent of innocent people confess under pressure, you and your wife are feeling enormous stress under fire of Texas Shooter Fallacy Arguments both from your nephew and responses. 

Boat won’t sink and your nephew can accompany you to your Adj interview for his first hands on experience! 
 

Thank you and keep posting 

 

 

[Kai G. Llewellyn 821]

2 hours ago, arken said:

It's hearsay at this point and can't judge solely based on that. Correct that if she had asked here before traveling on esta, nobody here would advise her to travel with the intent to AOS. But the fact that she is already  here, what she was thinking way before is irrelevant imho. Of course she is more than welcome to tell the IO what she had in mind from the very beginning.

 

 

I can't say it's really hearsay if her loving husband is on here telling us that she admitted to him that she lied on entry. Pretty open and shut to me, but hey...I don't know what the bar is for triggering VJ's ToS.

 

Would be a whole another matter if it was a scorned ex on here telling us that. I have every reason to believe OP's claims, which is why I advised the way I did. As much as I hate the fact I had to provide that advice, given a different situation I'd be more than happy to tell them to AoS otherwise.

 

Personally and as someone who came through Consular Processing, I don't give two damns about the whole 'jumping the queue' thing. It's all artificial rubbish at the end of the day, rules that were in place because they were meant to be cruel by design which is drawn out from a system that had racial quotas and said immigration law that is on the grand scale of things, pretty darn ancient. Those people who AoS aren't making Consular Processing take longer, if anything, it's one less person in the queue for interview at the Consulate.

 

This is why I'd never advocate for AoSing from tourist visas/ESTA to be banned. All it's going to do is clog up the diplomatic missions even further, cause more heartache and separation for couples. I get a lot of people here have the mindset of 'well I suffered through it, so should you'. We should advocate things to be better for the people who follow us in their journeys, not worse, rather than just saying 'rules are rules' and because of that saying that the rules must be made worse.

 

Anyway, before I get reprimanded for going off topic on this thread, I'll leave it at that.

Edited July 20, 2022 by Kai G. Llewellyn

[arken 4,197]

2 hours ago, Kai G. Llewellyn said:

don't know what the bar is for triggering VJ's ToS

It's one of those gray areas, i don't know either but i can only think of the following.

 

1. Someones is planning to come to the US on a non immigrant visa with the intent to immigrate.
Is that committing immigration fraud? Yes.

Does recommending that trigger VJ's ToS? Likely

 

2. Someone is in the US, could have arrived 1 month ago or 10 years ago on a non immigrant visa. That person entered US at the time with the intent to immigrate in his mind. 

Did that person commit immigration fraud when entered? Probably 

Is it an immigration fraud for that person to file for AOS? No. 
Does recommending that trigger VJ's ToS? It shouldn't.

Could an IO find that person commit fraud by entering in such fashion? Yes and No.

 

2 hours ago, Kai G. Llewellyn said:

This is why I'd never advocate for AoSing from tourist visas/ESTA to be banned. All it's going to do is clog up the diplomatic missions even further, cause more heartache and separation for couples.

Well said.

[Generaltito 4]

Hello everyone,

 

Just wanted to provide an update after our in-person consult with the attorney this afternoon. I will make it quick as it's been a long day. The attorney was honest with us, and she was very sympathetic to the situation. Her intent at entry is virtually impossible to prove, so it is not a big deal. What will be problematic is explaining why she overstayed over a year and cancelled the return ticket.  She did admit, yes, many people have done the same thing. Her age also factors into the decision. She is a young woman who was not gainfully employed back home when she decided to travel. The fact, she worked in a consulate processing passports and visas doesn't help her cause either. They will ask her how she supported herself during her time in the USA. Obviously, they know she had to have some sort of job to support herself. Many people in this forum have mentioned this overstay marriage situation frequently happens. The attorney did admit yes it happens, but the majority of the couples knew each other before the overstay occurred. I searched around online today and could not really find any similar cases. She said we can try for the Adjustment Of Status, but it will be a difficult, uphill battle. The attorney said my wife's circumstances could make her a deer in the headlights at an interview, The answers to some USCIS questions will force her to lie or tell the truth, which will hurt her case anyway. She asked us to give her a few days as she wanted to search through some cases to try to find a situation similar to ours. My wife is ready to pack it up and move to Germany together. I think she is so scared right now that she just wants out of the United States. I will update in a few days when we hear back from the attorney.

[Boiler 43,397]

I can see lots of marital issues, but not immigration ones.

 

Find a competent Lawyer would be my advice.

[arken 4,197]

1 hour ago, Generaltito said:

She asked us to give her a few days as she wanted to search through some cases to try to find a situation similar to ours.

This simply tells that lawyer is not incompetent. Comparing your case to one similar case is fruitless. You should've pointed that lawyer to this forum. She would have found lots of cases with successful outcome.