Weird case!!!

[imbolso 0]

We went to Phili today to have our interview,the officer was really nice everything went just fine,

so she didnt ask too many question BUT she said everything seems to be okay im gonna approved your I-130

but i cant approved your green card because you came on a visa waiver program.

Did anybody go thru something like this before?

(i married to a us citizen)

02/25/2010------got married

06/03/2010------sent all forms

07/08/2010------biometrics done.

08/19/2010------interview I-130 approved but green card pending because i arrived to the us with a visa waiver program.

[*julez* 124]

Moving to AOS forum from RoC form as this question is relative to AOS.

[belinda63 2,981]

Seems to be the growing trend with VWP and AOS. All I can say is if the 1-485 is not approved but the I-130 is she will have to return to her country to finish the CR-1 processing.

Question...did you file for AOS after her 90 days had expired?

Jim you wanna handle this one? Another stat here for you I think.

[JimVaPhuong 4,863]

Yep, got my glove on. I'll field this one!

Judging from the timeline at the bottom of your post, you were outside the 90 day authorized period of stay for the VWP when you sent your AOS package to USCIS. The immigration officer appears to have used their discretion to deny your I-485. In a way, you were probably lucky. According to one immigration attorney, about half of the USCIS field offices are not even accepting I-485's from VWP entrants who are out of status, and just starting removal proceedings.

Ok, the really bad news is that you can't appeal this decision. You waived all rights to appeal any decision by US immigration authorities when you entered with the visa waiver program. The good news is that your immigrant visa petition was approved. You will have to leave the US and return to your home country, but you will be able to apply for a CR1 visa when you get there.

IMPORTANT: The interval of time between when USCIS accepted your I-485 and when they denied it is a "period of authorized stay". This means they don't hold it against you. HOWEVER, the time between when your VWP entry expired and when USCIS accepted your I-485 DOES count against you as "period of unlawful presence". Also, since your I-485 has now been denied, you are once again unlawfully present in the US, and you will continue to accrue unlawful presence as long as you remain in the US. If your cumulative total unlawful presence time is greater than 180 days then you will receive an automatic 3 year ban when you leave the US. If you continue accumulating unlawful presence of more than a year, then you will receive an automatic 10 year ban. If you try to apply for a visa at a foreign consulate while a ban is in effect then your visa will be denied. Your US citizen spouse will have to apply for a hardship waiver in order to get around this ban, and hardship waiver applications are time consuming and expensive (you'll want a lawyer), and they often do not succeed.

If you have accumulated less than 180 days of unlawful presence (remember - it doesn't include the time your I-485 was pending with USCIS) then I strongly suggest you leave the US before you accumulate this much unlawful presence time. It will be dramatically less difficult to get a visa and return if you don't cross the 180 day line.

[imbolso 0]

Thank you guys for your replies but just to be clear my I-485 was not denied it is PENDING, thats exactly what she told us.

she said 3 months ago it was different but now they are changing laws regarding visa waiver program.she approved my I-130 she told me that i am getting my work permit and ssn very shortly.

My visa waiver expired long time ago.

So as today my I-485 is pending and they would let me know as soon as they hear from washington.(that's what she said)

Thanks again!

[imbolso 0]

It was way after the 90 days btw my wife is the citizen.

thanks!

[Nartaki 7]

Gone are the days when the USCIS approved AOS from the Visa Waiver Program especially if the applicant overstayed the 90 days. Thanks to Momeni v. Chertoff, where the 9th Circuit Court of Appeals simply stated that applicants from the VWP who overstayed by 90 days and then applied for AOS, should be denied.

So even if you married a US citizen, Momeni vs Chertoff prevents the USCIS from giving you the greencard.

[imbolso 0]

Gone are the days when the USCIS approved AOS from the Visa Waiver Program especially if the applicant overstayed the 90 days. Thanks to Momeni v. Chertoff, where the 9th Circuit Court of Appeals simply stated that applicants from the VWP who overstayed by 90 days and then applied for AOS, should be denied.

So even if you married a US citizen, Momeni vs Chertoff prevents the USCIS from giving you the greencard.

so whats going to happen ??

[JimVaPhuong 4,863]

Thank you guys for your replies but just to be clear my I-485 was not denied it is PENDING, thats exactly what she told us.

she said 3 months ago it was different but now they are changing laws regarding visa waiver program.she approved my I-130 she told me that i am getting my work permit and ssn very shortly.

My visa waiver expired long time ago.

So as today my I-485 is pending and they would let me know as soon as they hear from washington.(that's what she said)

Thanks again!

Ok. You said in your first post that the IO told you "i cant approved your green card because you came on a visa waiver program". You didn't mention that she said the I-485 was pending, though I did wonder why you said "pending" in the short timeline you posted. You can understand why we assumed it was denied.

There have been some grumblings on immigration attorney blogs lately that things are quickly changing for VWP entrants applying for AOS. It sounds like your IO confirmed this. Maybe there's a new policy memorandum coming soon from the director of USCIS regarding this.

You say your VWP expired a long time ago, so I'm presuming you've got more than a year accumulated unlawful presence. Unfortunately, as I said before, this means you'll get a 10 year ban when you leave. Do you mind saying just how long you've been here? The reason I ask is because it may be relevant. There may be a long shot route you could use to try to stay in the US if your AOS is eventually denied.

BTW, Momeni v. Chertoff doesn't prevent someone with a VWP overstay from adjusting status. It does, however, mean that someone who overstayed a VWP entry is immediately deportable, and USCIS can't be compelled to adjudicate an adjustment of status application from them - they can choose instead to deport them. They didn't do that in your case. They DID adjudicate your AOS petition. They just haven't issued a decision on it yet.

[Darnell 8,478]

Jim - fwiw -

That I-485 app will undergo some further review - it's just that the IO could not approve it THAT DAY. At least that's the way I've been reading between the lines, on these 'reports' the last 2 months .

imboiso - one of two things will happen -

--Adjustment of Status case approved later or

--AOS case denied. If it's denied, pay attention to any notices that come in. If you are allowed to 'voluntarily depart', and do so, prior to the date given, then is good chance for CR-1 visa application (wife files I-824, I-130 transferred to NVC, wife handles all NVC processing, interview at Embassy)

Good Luck !

[SaraDee 9]

Has anyone on this site been denied because of Visa Waiver Program? I'm freaking out! We applied in June and I had overstayed by a year by then. We did get married a year ago though, before the Visa Waiver Program ended. The lawyers we spoke to said that we could take as long as we needed apply. We had some issues with his taxes so here we are. Is this really happening? Other than one lawyer's blog stating that 50 percent of officer's are doing this (and I assume the lawyer wants to scare us all into paying him), what evidenced is there that this is happening? All this talk is scarring the ####### out of those of us that have applied after Visa Waiver had expired. I mean, I know that there is always a risk with AOS from Visa Waiver, but this goes far beyond just a small chance. I've never heard of anyone that has been denied for this and Canadians seem to do it all the time.

[JimVaPhuong 4,863]

Has anyone on this site been denied because of Visa Waiver Program? I'm freaking out! We applied in June and I had overstayed by a year by then. We did get married a year ago though, before the Visa Waiver Program ended. The lawyers we spoke to said that we could take as long as we needed apply. We had some issues with his taxes so here we are. Is this really happening? Other than one lawyer's blog stating that 50 percent of officer's are doing this (and I assume the lawyer wants to scare us all into paying him), what evidenced is there that this is happening? All this talk is scarring the ####### out of those of us that have applied after Visa Waiver had expired. I mean, I know that there is always a risk with AOS from Visa Waiver, but this goes far beyond just a small chance. I've never heard of anyone that has been denied for this and Canadians seem to do it all the time.

Canadians do not enter the US using the Visa Waiver Program. In fact, Canada is exempt from the VWP. Canadians enter using any document that qualifies under the Western Hemisphere Travel Initiative, and are effectively treated as B2 visa holders without an actual visa.

The problem for people who enter using the VWP is that they must agree to a "no contest" clause that prevents them from appealing any decision by an immigration officer. There isn't any "no contest" agreement that Canadian visitors are required to consent to.

[SaraDee 9]

Canadians do not enter the US using the Visa Waiver Program. In fact, Canada is exempt from the VWP. Canadians enter using any document that qualifies under the Western Hemisphere Travel Initiative, and are effectively treated as B2 visa holders without an actual visa.

The problem for people who enter using the VWP is that they must agree to a "no contest" clause that prevents them from appealing any decision by an immigration officer. There isn't any "no contest" agreement that Canadian visitors are required to consent to.

Wow. That's great, I think!?!? I've realized that I'm going cuckoo over this whole thing. Whipped myself into a freeze for nothing it seems. Does this mean that on the off chance we are denied, I have the right to appeal? When I entered into the country at the border the officer asked me nothing, just swiped my passport. He didn't even put in a stamp. I met my hubby about a week and a half after I came to the country.

Hope the above poster gets approved. I'm crossing my fingers.

Edited August 20, 2010 by SaraDee

[schatzi3277 6]

I had the same problem after my interview. I was told that my interviewer will approve my i-485 but at the moment is some internal thing in immigration going on where the VWP is being changed. Now I am hoping that it has to do with making the Visawaiver paperless. That whole change is suppose to be done by the end of summer. I overstayed for 10 years so we will see. I can let you know in 3 weeks what happened. Immigration has 90 days to inform you about a decision on a case. I look at it this way its been over 2 month and I have not gotten a denial, that must be a good thing

Furthermore I asked a lawyer about the new i-94w law and this is the response

"I posted before my question is what kind of new law is coming out about holders of the i-94w and when is it going into effect. Thank you

Answers (1)

Ralf D. Wiedemann

Posted 25 days ago. This attorney is licensed in Pennsylvania.

The law has not changed, but the agency responsible for admitting travelers at the borders is changing its procedures to eliminate the paper I-94W in favor of electronic records. This process is in effect already now, but the agency has indicated that paper I-94Ws may still be used while the system is being fully implemented."

Hope that will ease your mind a bit.

Good luck

[imbolso 0]

Has anyone on this site been denied because of Visa Waiver Program? I'm freaking out! We applied in June and I had overstayed by a year by then. We did get married a year ago though, before the Visa Waiver Program ended. The lawyers we spoke to said that we could take as long as we needed apply. We had some issues with his taxes so here we are. Is this really happening? Other than one lawyer's blog stating that 50 percent of officer's are doing this (and I assume the lawyer wants to scare us all into paying him), what evidenced is there that this is happening? All this talk is scarring the ####### out of those of us that have applied after Visa Waiver had expired. I mean, I know that there is always a risk with AOS from Visa Waiver, but this goes far beyond just a small chance. I've never heard of anyone that has been denied for this and Canadians seem to do it all the time.

My lawyer was saying that i needed to be with him at the interview cause i could be arrested and deported guess what?

nothing like that,he just wanted more money thats the way it is.

immigration officer told us i wish i could have all your papers approved right now but she said that her boss told her 3 months ago

to put on pending all cases where a visa waiver was involved.(all vwp are being put on pending that's the law she said)

my thoughts to you dont be scared if you marriage is for real the officer would see it and treat you right thats what happened to us

please note our interview was in Philadelphia Pa.

Good Luck and let me know how it goes for you guys!