SRNCR

Hi all,

My son will be attending daycare soon and I was going to apply for childcare assistance through our county but before I do that, I was wondering if these benefits would make me considered a public charge? The baby is a U.S. citizen and my understanding is that he would technically be the beneficiary of the assistance, so I just wanted to confirm before I go ahead and apply. 

2 minutes ago, Prayerwarrior89 said:

We had a good interview. Two weeks later, we got our notice that our case got transferred to Vermont Service Center. Another waiting time period has started. 

Good luck! 

Any update? Was your interview canceled?

Hi all,

As stated in title, I "concurrently filed" my i130/ i485 a few months apart. I am just wondering which date USCIS will consider for scheduling the interview. Both NOA1 notices list the August 2018 date as the priority date.

1 hour ago, Villanelle said:

@SRNCR I remember your post about that now. I also seem to recall you have some legal background right? I can understand how that can make you more apt to go for a legal battle vs someone who has never had experience with courts. Personally I still firmly believe going the court route is the 'harder' way to go- and who needs that added stress and aggravation? If it can be avoided then you should avoid it. 

 

Just an FYI immigration matters (from what I know about it) are not really under the this is unconstitutional umbrella. For example. People with TPS can AOS in 13 states (6th and 9th district) because those courts ruled they can. TPS people in other states can not. If the unconstitutional umbrella theory applied it would make one districts rulings apply in all and thats not how it is. ( https://cliniclegal.org/resources/guidance-practitioners-adjustment-status-tps-recipients-sixth-and-ninth-circuits) So if you are going to continue to do research focus on your district.

 

Also I am not familiar with employment based visas and what they require. You mention lawful status and overstay and how you know the difference between them. What does the employment visa require of you? See the thing is overstay or out of status days are incredibly difficult to compute in these kinds of situations. An attny that is knowledgeable in that may be able to help but from my observations they are usually just as clueless as everyone else and ultimately it comes down to USCIS deciding what counts and what doesnt.

 

It seems the attny you spoke to advised you since you came on the VWP and filed AOS and theres a chance the AOS will be denied for you to exit the US before 180 days and re-enter on the AP you got from filing the AOS- so that IF or when the AOS is denied they do not go back and say 'oh you entered on X date with VWP and have been here since- so you past your 180 allowed VWP time and 181 days + on is now counted as overstay. 

 

I do not believe leaving and coming back with AP would solve that. My thinking is your last entry if you did that would have been under AP but I dont believe that overrides the VWP clock that would be used to calculate when you are overstay IF the AOS is denied. 

 

I am going to tag @geowrian as he knows very specific aspects of immigration policies to see if he can add anything to this. 

Yes I'm a lawyer in my home country. I agree if I can avoid it, I will. But I may not be able to. 

I will look more into it actually applying only to those in the court jurisdiction. Thank you! It seems so backward to me that a country as advanced in protecting the rights of it's citizens would allow a Federal Law and the application thereof to apply only to some states. I honestly think it would be very difficult for the government to overcome a petition for a Writ of Mandamus or even so far as Habeas Corpus which sought an equal application of the INA across each state.

The employment visa requires me to maintain lawful status and not accrue unlawful presence. I'm not accruing unlawful presence as I lodged my i485 prior to my VWP expiring, however, I've failed to maintain status (I think?) because I don't have a valid visa right now. Realistically though, pending the previous issue about whether or not I could expect to apply the law consistently across all states, I've maintained a new "status" by applying for AOS. Both attorneys I've spoken to on this have said I should leave prior to the 180 days being up since my VWP expired as that would fix my issue. I've done more research into what people write in the status box when reapplying if they've gone and returned on AP and been denied for some other reason. They write "DA" which is the correct status after you've been paroled. On the USCIS website they say they don't count what happened on your last stay, so technically if this creates a new entry, I'm thinking it also wipes out whatever happened on the VWP. I wish this was not new ground and the attorneys could give me something better than "I don't know". 

9 hours ago, username_taken said:

Is the issue with your AOS an AWA one? If so I can understand why you are researching how to switch to an employment visa. Also just FYI you posted a decision from the 9th circuit. Are you in the 9th circuit? Different circuit courts often have conflicting rulings- so some of it depends where you live... You also need to consider the cost of trying to fight USCIS. Those court case decisions you see cost the person a significant amount of money and time. First you have to get denied then appeal then appeal the appeal etc etc. During the various appeals processes (and even the AOS denial issues) there are period where you are going to be out of status and unable to work. Its just how the system is set up. Is your goal more to ensure you have a long term solid visa or to minimize time spent apart? Think about it. You may be better served withdrawing AOS and exiting and even if you spend some time out of the US- you will come back with a solid long term visa and avoid the costs of trying to appeal. 

Long story short, maybe? The offense was a misdemeanor where the elements of the offense my husband was charged with actually require him to have been no more than 4 years older than the person at the time. They were 14 and 18. On the surface it looks like its excused but he was 4 years and a couple months older so we dont know and the lawyers dont know. No NOID yet. But I'm looking for options now. I dont live in the 9th circuit but would fully intend to argue that as an inconsistent application of the law would be unconstitutional. Honestly it's just going to be easier if I leave and come back with AP while I search for answers etc. I'm not going to leave now I think I've pretty much expired all bar one or two options. I'd be worried they'd deny me and I'd be stuck outside U.S. at least this way I can wait here. But I am looking for longevity. 

2 minutes ago, geowrian said:

You can still do an I-601. That works for both an I-129F and I-130.

 

I think the reference was to the risk of being detained, jailed, and having to appear in front of an IJ. Not a good or cheap experience, especially for a newlywed.

Oh I see. Some clarification would have helped about what they actually meant lol. 

2 minutes ago, Lemonslice said:

or that the relationship does not survive the wait and the immigrant is stuck between a rock and a hard place - no ability to adjust and a ban if/when you exit the county. Add kids to the mix and you have a nightmarish situation. 

Yeah I couldnt imagine how scary that would be. 

4 minutes ago, Boiler said:

Spend a few months in jail?

 

Ton in legal fees?

Okay so the previous person and I were speaking about someone who posted last week saying they didnt adjust for 5 years and had no problems. I said that's crazy and that it makes sense though because pretty much anything is forgiven when married to a USC and that they wouldn't have even needed a waiver. So in the context of what was actually being spoken about there's no speed bumps or cost. 

In the context of the OP, yes that's a cost. But in the context of what could come from pretty much anything being forgiven once married to a USC, there is no cost? Unless you're unlucky enough to find yourself in a position where you've done something that isnt forgiven.

11 minutes ago, Boiler said:

And also it is not true, quite a few things could get you in trouble.

Hence why I said "pretty much". 

28 minutes ago, TBoneTX said:

but at what cost...

Please elaborate? What cost would you face if most things are forgiven and you can go right through to citizenship with little or no speed bumps?

11 minutes ago, geowrian said:

Any waiver would have nothing to do with the petition.

The 601a is only allowed to be lodged if you're the beneficiary of an i130, i140 etc. But not an i129, so it does have to do with the petition? 

5 minutes ago, dwheels76 said:

Someone just posted last week how he filed 5 years later to AOS and there was no issues. That was an interesting thread indeed.

That makes sense really. Once you're married to a USC pretty much anything is forgiven except in this circumstance where they get caught. They wouldnt need a waiver because the underlying petition is already approved. Crazy times.

1 minute ago, Ben&Zian said:

 

Think OP will be fine after all said and done. Agreed though, how long maybe would they have kept going until finally AOS'ing? We only have the OP's side of the story and facts about the "just 10 days" or something after the 90 days when could in reality be longer than that. Key point is, they were out of status, rules are rules. I don't like the OP seeming to complain though about "had ICE and all just listened to me, it could have been resolved".. mean, their job is to verify you're out of status and detain you. They did their job. If they "listened" to everyone, they'd have heard every excuse or reason possible. It isn't ICE or border patrol's fault the OP let themselves get in the situation they were.

 

Most unpopular thing ever maybe to be said on this forum, but as a combat vet, I honestly would love to and have looked into joining border patrol as a new career. Would be great. Main reasons haven't is just would be taking a financial loss for a few years doing it and 'starting over' in that field, plus don't really want to live any closer to the border. Houston's close enough. Plus one day would like to move back up north and actually get 4 seasons and a winter.

What really perplexes me is the thought that they just had to get married, with no mention of when they could adjust. People would still be here years later with no consequences if that was the case. I do feel for OP though, to go through the proper channels and then get arrested would be terrifying. 

4 minutes ago, missileman said:

What a frightening mess!!!!!  OMG!!!

Agree, but those are the consequences of overstaying. I can't imagine that OP won't be allowed to adjust since a) it was an honest mistake, they just didnt think it fully through and didnt realize they would be in trouble; b) they were attempting to go through the process correctly, evidenced by the way they went about everything, like getting the K1 in the first place; and c) the small amount of time they were out of status (although arguably they will say if they hadnt caught them who knows how long they would have overstayed). 

Not sure if this was already said, but just wanted to let you know you wont be able to adjust while they've got you in immigration proceedings. The judge will make the decision now, or may send it to USCIS for decision, depending on what they see fit.

Hi all, sorry I completely forgot to update!

Long story short, the lawyer said she wasn't sure and they would need to research the effect of leaving the country and coming back. Though, she did say it would clear the issue of coming on a VWP, whereby they (think they) could deport me without a hearing, and the fact that an exit and entry could clear that, confers a new immigration status, doesn't it?

We also spoke in length about a case I raised with her called freeman v. gonzales, 444 f.3d 1031 (9th cir. 2006). The person involved was a widower who came on the VWP and was denied her AOS after her husband died. The court held that "Concurrently with the filing of the I-130 and I-485 forms, the Immigration and Naturalization Service (INS) granted Mrs. Freeman a work authorization, effectively treating her as no longer simply a visitor subject to the 90-day limitation of the VWP." They also said "As we shall explain, the text and purpose of this complex statute, along with DHS's action in Mrs. Freeman's case, persuade us that once a VWP visitor properly files an adjustment of status application, the VWP no-contest clause does not deprive the visitor-applicant of the procedural guarantees afforded any applicant seeking adjustment of status." This tells us something clear: you're no longer the status that you came with once an AOS applicant and DHS' actions demonstrate that. This case also clearly outlined a number of fundamental things that the then INS (now USCIS) posted materials/ policies of that was a clear contradiction of their behavior and/ or the law. Shows you that just because they post it, it doesn't mean they're correct. Never be afraid of standing up for your legal rights when it comes to any government agency, much less the immigration one. I say that because I see a lot of people scared of (or maybe just intimidated by) USCIS, when there is no need to be. They are bound by laws and everyone's rights are protected. Even their discretion is able to be reviewed. But, be clear, as it was stated before, you should not try and trick the system. You should stand up for your legal rights, though. 

In terms of how that applies to me, should I need to proceed with any application, my status would be AOS applicant, and I've maintained that status and will do until (if) I decide to withdraw and reapply through a different route. If I decide to leave the country, I think it would also be easily argued that I have a different status in that instance as well. 

P.S. I'm posting this for your information only, not to enter debate etc about it :). 

2 minutes ago, Going through said:

There are definitely loopholes in the immigration system; not all of them good.  Immigration reform is needed to close many of them as seems to be the plans now with our new administration.

 

A consultation with a 2nd lawyer is a good idea---ask him/her about what the first one suggested...I'm interested in whether they would agree with that being the best route for you to take.

I will update with what they say tomorrow afternoon. 

Just now, Ash.1101 said:

Oh yeah luckily we're past AOS phase. It only took my husband 77 days from the time we submitted the packet to GC approval. It was incredibly fast. 

So lucky! Most people are waiting forever now depending on the field office. 

Just now, Going through said:

Not all lawyers are the most ethical of creatures---forum search around here will tell you of some horror stories where the immigrant ended up paying the price for following their lawyer's "advice".  The lawyer is not held to any consequence when the immigrant is denied, so they really don't have anything to lose..

 

Just playing Devil's Advocate  

 

 

Oh no, I totally agree I've heard some horror stories. Uscis has some very specific measures against "skirting" immigration law though and changing to an employment based green card when eligible and able doesnt fit under that criteria. The same way coming on an F1 and changing to a H1B doesn't. Simply put, if you weren't lawfully allowed to or it was skirting, you physically wouldn't be able to. As I said, if I realizes this in November last year, well before my status had expired, we wouldnt even be having this conversation because I would have had at least 9 months to deal with the issue. Calling it skirting is bold and, frankly, rude. I know that wasnt you so not having a go at you. 

1 minute ago, username_taken said:

I am worried if your attny suggested you could go to Canada (or anywhere else really) and re-enter giving you a valid admission for work visa process. While individuals who receive a grant of parole are granted entry into the United States, they are not provided an immigration status nor are they formally “admitted” into the United States for purposes of immigration law. An admission occurs when an immigration officer allows a noncitizen to enter the United States pursuant to a visa or another entry document, without the limitation of parole. The distinction between an admission and a parole is a significant one under immigration law. 

Thank you. That's so helpful! I will definitely be consulting with a second lawyer to confirm the advice I was given. 

8 minutes ago, Going through said:

Haven't read the OP history, wasn't aware there were AWA issues on top of this.  

 

I suppose all that's left to say is that immigration is not a game, don't treat it as such.  

I agree. Good thing I'm not

7 minutes ago, Going through said:

Ah I get it I think....this is more of a stall tactic on your part to buy some time before being admissible? (I don't mean that in a snarky way, but asking if I'm on the right track here..)

Yes either that or until I beat the immigration system here lol! If it turns out the original offense will cause a problem (the lawyer we consulted couldnt say yes or no, it's one of those wait and see issues) then we have to prove there is no risk to me. It will likely go to court but also time is a big factor in that. You know, it's easier to say nothings going to happen to me if its been 5, 10 years living together than if it's been 1 year. Either way, it's a buy time tactic. I guess trying to switch to the Employment based green card is a tactic to try and mitigate the problem all together. 

Putting it this way, I wonder what people would answer if they failed to adequately respond to an RFE after coming in and out on AP and then got denied after they were back and reapplied? Their last entry would be the AP so wondering what class of admission etc people would put then?

1 minute ago, belinda63 said:

Maybe I'm missing something here. Why not just have him get a second job so he meets the requirements to sponsor you? 

Yeah it's definitely not a sponsorship issue that was all fine. 

7 minutes ago, Ash.1101 said:

I believe not having medical included in the packet would result in an RFE which would happen much sooner than the interview. Do you plan on responding to every RFE or do you plan on letting it just die out?


Note: I think you're going to have a lot of questions out of curiosity. You don't see many people, if any at all, that are doing what you are doing.

No that's not correct. For example, I didnt send it (and most people don't) with my packet. The i485 is checked before issuing EAD AND my case is ready to be scheduled for an interview. They just send a courtesy letter reminding you to bring it to the interview. Most of the time AOS takes more than 1 year and if you lodged before the new 2 year rules came into place you'd be in a situation where you'd have to do the medical a second time if you submitted it with the packet. Hopefully you're not in that situation now!

5 minutes ago, Lemonslice said:

Why not move to your country sooner then? That would seem like an easier/logical solution...

 Have to allow at least 10 years from last offense (which will be 2025). Even though offense which MAY cause a problem was 10 years ago they take it off the last offense, even though it's just a misdemeanor it counts. 

46 minutes ago, belinda63 said:

You can only renew the AP as long as there is a pending AOS. Once the AOS is denied your AP becomes invalid. True you can repeatedly file AOS which gives you a new authorized period of stay and new AP but that will become expensive very quickly and you will also have to have a new medical every time. 

Yes I know. Thank you. 

These types of issues take around 4 or 5 years to deny so it wont be a one per year situation and by the time it gets to a point where I've lodged a couple of times it's likely we could live in my country. Medicals are only required with an interview and this wouldnt proceed to interview status so that's not a concern. 

Just now, missileman said:

I know what it is....I initially thought you meant automatically renewed/extended.......which I don't think is accurate for AP........Thanks.

Not automatically, no. I'll have to renew like everyone else 6 months before the expiry