strawpuppy

Oh I so agree!

I will have a look at the student option.

Thanks for your reply

Is it possible to change his VWP status to E-2?

I have a fully legitamate licensed business.

Perhaps this would help?

Or can we appeal because his over 21 brother and sister got their citizenship through the local DHS error?

This is getting more like a nightmare every day!

First, the quoted article is outdated. There have now been seven US District Courts of Appeal, including the 9th circuit in California, that have essentially come to the same conclusions as the Momeni case.

What, exactly, is the relationship between you and your son? Are you his biological father? Are you his step-father? When you say you didn't pass the residency test, does this mean you don't have five years of continuous residency in the US, at least three of which were after you were 14 years old?

Yes I am his biological mother, born in the USA. My husband (the childrens father was British). My father was military. I can prove 5 years before age 14, but not 5 years prior to the childrens birth. My other two children instantly got citizenship, so he came over on the 9th January 2011 and thought he would get his citizenship, with no luck!

really we do not know what to do for the best. It looks like we will just apply for the I-130 and let him overstay. There really is no alternative as he gave up everything when he left the UK.

What else is there?

Thanking for replying,

I don't know who told you that, but children over 21 cannot adjust in country, he needs to leave. when you file it doesn't matter. The petition will take more than 5 years of waiting and he will go through consular processing. He cannot overstay his time in the US.

Ouch!

Thank you for replying.

I have just found the information pasted below which seems to state that as long as he is still legal, which he is, and we live in Idaho, which we do, and he is an immediate relative of a US citizen, which he is, we should be able to change his status.

I have posted the info below in case I have read it wrong.

Reference:http://www.visajourney.com/forums/topic/280518-interesting-article/

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim)."

Phew!

I am so thankful to you for posting this.

I am a US born citizen, with three British children. My other two children were granted citizenship instantly, but my third son who came over on a VWP expecting to get his citizenship was denied. I did not pass the residency years and he is over 21.

We live in Idaho and his VWP is still valid.

I think if I read your post correctly we should apply for a change of Status Visa for him asap. We can then fill in the I-130. Or do we do both?

I seem to find conflicting information everywhere!

Any advice welcome.

Thanks for your post.

I have just found this information (Pasted below).

We live in Idaho and I think it means he is OK to apply for Adjustment of Staus? Again, any help appreciated.

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat. VWP entrants agree to a no-contest clause, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). You can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit. In the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed."

Reference: Section 3

http://www.avvo.com/legal-guides/ugc/adjustment-of-status-for-immediate-relatives-on-b1b2-visitor-visas

I am a US citizen by birth but I do not pass the qualifying time needed in the US to allow my over 21 unmarried son to get automatic citizenship.

My other two children were automatically granted US citizenship a few years ago and we have been told this was in error but they are not going to take away their citizenships.

My last son entered into the US on the 9th January 2011 on the Visa Waiver Program (ESTA). We thought he could automatically get his citizenship but I am unable to prove residency in the US of 5 years prior to age 14, and 5 years before the children were born, so they will not grant it.

His passport says he arrived on the 9th January 2011 and must leave the US by April 8th 2011.

I am trying to fill in the I-130 form and got stuck on question #14 (Arrival Departure Record I-94) I have since come to this site and think he must now change the Visa Waiver Program entry into a valid visa?

Time is running out because we were told to apply for the I-130 45 days before he was due to leave. That is tomorrow (22nd February 2011)

What do we do?

Should we just file the I-130 and if so what do we put for question #14,

or, do we apply for a visa to allow him to stay longer before filing I-130.

Any help would be sincerely appreciated.

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