VWP overstay between 180 and 365 days - options? CR1

[JimVaPhuong 4,863]

Yes i have read about this here, which is partly the reason for my post, im trying to clarify what the situation is down in florida, i will speak to my attorney about this but was hoping somebody here has used my local office.... also very importantly im awaiting this new directive that USCIS should be issuing about how USCIS should deal with VWP AOS.... right now it really doesnt sound like a good thing to go down that path.

thanks.

Florida is served by the 11th Circuit Court of Appeals. The courts which have so far weighed in are the 5th, 6th, 7th, 9th, and 10th. The 11th Circuit Court has not yet been confronted with a recent case involving a VWP overstay since the 9th Circuit Court issued their decision in Momeni v. Chertoff, so they haven't taken a position on it yet. Frankly, I don't know what the USCIS field offices in Florida are currently doing with VWP overstays who try to adjust status. That's why I suggested you talk to your attorney. He's got "boots on the ground", so to speak, and probably networks with other immigration lawyers in the area. If anyone knows what's happening at the USCIS field offices there it would be a local immigration attorney.

This has already been said, but it's important you and others reading this thread understand the distinction is for VWP entrants who overstay and then try to adjust status. VWP entrants who attempt to adjust status before their 90 days authorized stay has expired are being treated, for the most part, just like any other AOS applicant. The major exception is that if they are denied then they cannot appeal the decision. The "no contest" clause they agreed to makes any review or appeal of the decision impossible.

The "no contest" clause is exactly why VWP entrants who overstay are having so much trouble. Without the possibility for review or appeal, the entire removal process, between the immigration officer's order and the final deportation, is eliminated. If an immigration officer snaps his fingers then you're deported - end of story. The way that the immigration law is written, an application for adjustment of status while the applicant is out of status constitutes a request for a stay of removal. USCIS has determined that a VWP overstay cannot legally make this request because they have no opportunity for review or appeal. So far, 5 circuit courts of appeal have agreed with them.

So here is your situation... If you leave now you will receive a 3 year ban. If you attempt to adjust status and are denied then you will be ordered removed. Depending on the nature of the order, this will come with either a 5 year or 10 year ban. If you wait until you've overstayed for a year and then leave you'll receive a 10 year ban. Unless you plan on sitting out the ban, there's really not much to lose by submitting your AOS application and taking your chances. Yes, if it's denied then you'd need an I-601 waiver to overcome the overstay ban and an I-212 waiver to overcome the deportation ban, but the level of proof required for hardship to your US citizen sponsor is the same for both waivers. You only need to prove the hardship once and both waivers would be approved.

[Rebecca Jo 1,962]

Again -

What is stamped in your passport?

[Boiler 43,430]

I had mixed feelings about the new VWP policy.

This thread has helped clarify my thoughts, thank you.

PS Marriage for immigrant benefit is another no no.

[coraliesolms 47]

Absolutely.. if you are just marrying this girl to continue your stay in the US.. that is visa fraud and a biiiiiig no no!

[edgini 0]

Alright thank you for your input people...... I will consider my options carefully!

Il post an update when I have news

[JoannaV 173]

Does anyone here know anything about investor visas? I've always been under the impression that if you have a lot of money you can live anywhere, but I don't know how an overstay affects that process.

[Boiler 43,430]

EB5 - Greencard

You need a qualifying relative to file a waiver.

[sachinky 464]

I have limited sympathy for your situation. You used the VWP, which is a privilege most people in the world do not have. You already had two VWP entries in a short span of time when you applied for the B2 visa. I'm sure the consular officer was wondering why someone who is eligible to use the VWP would want to go to the trouble and expense of getting a B2 visa. There can be only two reasons; you had a legitimate need to stay more than 90 days and less than 180 days (which would be valid), or you wanted to enter the US without the restrictions imposed by the VWP, such as the inability to adjust status if you overstay (which would NOT be valid). I'm sure you tried to make a case why you would need to stay more than the 90 days allowed under the VWP, and the consular officer obviously didn't buy it. CBP suspected something was up - it was your third VWP entry in a short time - so they referred you to secondary inspection. Since then, you've attempted to do exactly what both the consular officer and CBP suspected you might try to do - stay beyond the time authorized when you entered, and try to adjust status and get a green card. Your actions so far have shown a disregard for US immigration law. I'm really not sure why you think the US would benefit by having you here.

[JimVaPhuong 4,863]

Does anyone here know anything about investor visas? I've always been under the impression that if you have a lot of money you can live anywhere, but I don't know how an overstay affects that process.

Boiler summed it up. The visa is the EB5. You file an I-526 petition with USCIS. You have to provide substantial evidence with the petition, including proof that you will have a managerial role in the business venture, and proof that the business venture will generate at least 10 new jobs. You also have to prove you obtained the money legally. Essentially, you have to prove your investment requires your presence in the United States. Your resident status will be conditional on the continued operation and viability of your business. You will be required to file to remove conditions in two years based on the viability of your business venture.

I believe you can file the I-526 while you're in the US. If it's approved, then you could file for adjustment of status. However, the general requirement that you have maintained your lawful non-immigrant status would apply. You cannot just hand some business owner a million dollars and collect a green card.

If you leave the US to apply for the visa at a US consulate then you'll need to deal with the ban. The ban makes you inadmissible for any type of visa. The only way to overcome the ban is a hardship waiver by a qualifying US citizen relative.

[amykathleen2005 441]

I do have a question and I'm trying not to be judgemental... but how do you go from "about to marry someone" in Oct 2010, to considering marriage with another a month later?? I'm not sure your relationship would have passed scrutiny anyway...

You are right, AOS from the VWP was quite a regular occurrence and I'm quite happy the door is being closed on it.

Amen to both those statements!