You can apeal denied AoS?

[Kittyfang 6]

I was browing an attorney's website when I came across this:

The family members of the foreign national also qualify for adjustment of status - such as spouses and foreign born unmarried children under the age of twenty-one. There are many advantages for an applicant eligible for an adjustment of status. First, the foreign national can maintain valid status in the U.S. while your Adjustment of Immigration Status application is being processed. Also, the foreign national can concurrently apply for AOS with immediate relative green card and employment-based first, second, and third categories. Also, an applicant who is denied AOS can appeal.

I was always told that an AoS that has been denied cannot be appealed. Is this attorney in the wrong?

[LaL 418]

I was browing an attorney's website when I came across this:

The family members of the foreign national also qualify for adjustment of status - such as spouses and foreign born unmarried children under the age of twenty-one. There are many advantages for an applicant eligible for an adjustment of status. First, the foreign national can maintain valid status in the U.S. while your Adjustment of Immigration Status application is being processed. Also, the foreign national can concurrently apply for AOS with immediate relative green card and employment-based first, second, and third categories. Also, an applicant who is denied AOS can appeal.

I was always told that an AoS that has been denied cannot be appealed. Is this attorney in the wrong?

Yes, there is an appeals process, but it does not apply to tourist adjusters.

[Kittyfang 6]

I was browing an attorney's website when I came across this:

The family members of the foreign national also qualify for adjustment of status - such as spouses and foreign born unmarried children under the age of twenty-one. There are many advantages for an applicant eligible for an adjustment of status. First, the foreign national can maintain valid status in the U.S. while your Adjustment of Immigration Status application is being processed. Also, the foreign national can concurrently apply for AOS with immediate relative green card and employment-based first, second, and third categories. Also, an applicant who is denied AOS can appeal.

I was always told that an AoS that has been denied cannot be appealed. Is this attorney in the wrong?

Yes, there is an appeals process, but it does not apply to tourist adjusters.

That's what I thought. I think the only recourse tourists have is to file for extreme hardship waiver.

This is what I found on USCIS:

The only applications for permanent residency (Form I-485) which can be appealed to USCIS are those based on a marriage which took place while the alien's application was in process or those based on Section 586 of Public Law 106-429, adjustment of status for certain nationals of Vietnam, Cambodia and Laos.

[Kathryn41 3,205]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

[Kittyfang 6]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

That is what I read. but thank you for confirming.

On a personal note, I hope it doesn't come to that. I think we have pretty good evidences proving that we have a bona fides marriage. I'm a little worried about not having proof of inspection, but I guess we Canucks are a special case.

[juliava 80]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

Still doesn't make any sense. If that interview is denied, why the applicant has to file for that hardship waiver to overcome the overstay when we know that it's almost impossible to be obtained?

Oh, I hope nobody would go through such nightmare.

[LaL 418]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

Still doesn't make any sense. If that interview is denied, why the applicant has to file for that hardship waiver to overcome the overstay when we know that it's almost impossible to be obtained?

Oh, I hope nobody would go through such nightmare.

Have you read through the waiver forum? Some are denied, but not "almost impossible" to obtain.

[juliava 80]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

That is what I read. but thank you for confirming.

On a personal note, I hope it doesn't come to that. I think we have pretty good evidences proving that we have a bona fides marriage. I'm a little worried about not having proof of inspection, but I guess we Canucks are a special case.

Kittyfang, have you found any Canadian on this forum who has had the same issue yet?I hope they are and I hope they are happy-ended cases that could prepare you in advance for answering "Entering US as a Canadian visitor-type of questions."

I came in US on a J-1 visa, not as a visitor like you, but my first questions at the interview were "how did I get here" and "how can I prove that I wasn't supposed to return to my home country", "what was the name of the business I worked for on a J-1 visa..."-visa specific-related questions.

Nothing like "why did you overstay?", but just one question kind of related to that "did you try to change your status?" I answered "yes"-because I really did...

Just sharing my 2 cents to tell you that they are really looking into this kind of stuff...

[juliava 80]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

Still doesn't make any sense. If that interview is denied, why the applicant has to file for that hardship waiver to overcome the overstay when we know that it's almost impossible to be obtained?

Oh, I hope nobody would go through such nightmare.

Have you read through the waiver forum? Some are denied, but not "almost impossible" to obtain.

To be honest-NO, but Iread what kind of situations/circumstances are accepted to support this waiver approval. That made me skeptical.

I wish nobody would have to go through that.

[LaL 418]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

Still doesn't make any sense. If that interview is denied, why the applicant has to file for that hardship waiver to overcome the overstay when we know that it's almost impossible to be obtained?

Oh, I hope nobody would go through such nightmare.

Have you read through the waiver forum? Some are denied, but not "almost impossible" to obtain.

To be honest-NO, but Iread what kind of situations/circumstances are accepted to support this waiver approval. That made me skeptical.

I wish nobody would have to go through that.

I guess in this case - overstay subject to a 10 year bar - yes some get denied, but not all or most even from what I have seen posted on VJ. Just a wait and separation involved.

[Kittyfang 6]

The hardship waiver is difficult to obtain as well. If the AOS is denied and you have tried to adjust from a visitor/student/work status your only real recourse is to voluntarily leave the US (instead of waiting for deportation), have your spouse petition the I-130 and apply for the CR-1 visa from outside of the country. With an overstay, the application will be denied at the interview and the applicant will then have to apply for a hardship waiver to overcome the overstay ban.

That is what I read. but thank you for confirming.

On a personal note, I hope it doesn't come to that. I think we have pretty good evidences proving that we have a bona fides marriage. I'm a little worried about not having proof of inspection, but I guess we Canucks are a special case.

Kittyfang, have you found any Canadian on this forum who has had the same issue yet?I hope they are and I hope they are happy-ended cases that could prepare you in advance for answering "Entering US as a Canadian visitor-type of questions."

I came in US on a J-1 visa, not as a visitor like you, but my first questions at the interview were "how did I get here" and "how can I prove that I wasn't supposed to return to my home country", "what was the name of the business I worked for on a J-1 visa..."-visa specific-related questions.

Nothing like "why did you overstay?", but just one question kind of related to that "did you try to change your status?" I answered "yes"-because I really did...

Just sharing my 2 cents to tell you that they are really looking into this kind of stuff...

I did find some people in this situation. I think the difference with a J-1 is that coming as a visitor (from Canada), you basically get waved in. Your bags are checked, but you don't get paperwork (furthermore, if you don't have a passport, they just look at your ID. That is what they did, in 2007 anyway, now it's changed). From what others have said, in the same situation, they were not asked about why/when/how they came in. Seems like USCIS is aware that Canadians just get waived in.

Something was also brought up about intent. Seems like they don't ask about it, because, as I've said, if you just get waived in, and told the truth to the CBP, they have no proof otherwise. They go on the fact that you told the truth at the border, and are telling the truth when you speak with them.

I could be wrong, but, from what I've seen, it seems that USCIS is only interested in the nature of the marriage. For situation like these anyway.

As for the extreme hardship waiver. I think it mostly applies to... extreme hardship (for the USC). For example, if the USC is very sick and the spouse is the one caring for the USC.

Edited October 17, 2009 by Kittyfang

[sasaqlain 24]

Strange! I had asked the same question on this forum a few months ago and was informed by a few of the senior members here that you have a right to appeal if you are on a B-1/B-2 visa but cannot appeal if you are VWP. Now I am reading on this topic that even tourists don't have a right to appeal! Hmmmmmmm!

[Kittyfang 6]

Strange! I had asked the same question on this forum a few months ago and was informed by a few of the senior members here that you have a right to appeal if you are on a B-1/B-2 visa but cannot appeal if you are VWP. Now I am reading on this topic that even tourists don't have a right to appeal! Hmmmmmmm!

It might be different for B1/B2. I couldn't say. But for my situation, there is no right to appeal. Also, VWP don't aply to Canada. The overstay might also have something to do with it.

[john_and_marlene 162]

Strange! I had asked the same question on this forum a few months ago and was informed by a few of the senior members here that you have a right to appeal if you are on a B-1/B-2 visa but cannot appeal if you are VWP. Now I am reading on this topic that even tourists don't have a right to appeal! Hmmmmmmm!

This site is awash with misinformation

[Kittyfang 6]

Strange! I had asked the same question on this forum a few months ago and was informed by a few of the senior members here that you have a right to appeal if you are on a B-1/B-2 visa but cannot appeal if you are VWP. Now I am reading on this topic that even tourists don't have a right to appeal! Hmmmmmmm!

This site is awash with misinformation

I think, for the most part, this site is a great help. Seems like most of us are not getting help from lawyer, so other people's experience makes you feel better about your own case.

As far as waivers go, there are a lot of them, and their requirements are very subtle. So, I can understand people getting confused.