How do you know if you can stay once you file for AOS?

[vip1 8]

I just want to say that I was out of status for over a year and it NEVER came up during the interview. If you read the link provided by lauraandkyle the petitioner here had many different reason's for his AOS being denied. If you're out of status and marry a USC, the overstay WILL be forgiven.

[Boiler 46,074]

This is actually quite bad information. There have been many recent court cases of VWP overstays being denied. This case was just decided on January 20, 2010. Even though there was an USC in place, because he was an overstay on the VWP, they didn't even consider his AOS. So his AOS wasn't denied, he was simply denied/being deported based on overstaying the VWP. (There were other issues, but the ruling was based on this)

Send in the forms at least a week or two before the 90 day son the VWP are up.

If it had not been for the other factors I doubt the issue would have been raised, but why risk it?

Bayo is a native and citizen of Guinea, and Guinea is not a VWP country. Belgium is, however, and Bayo acquired a stolen passport from that country that enabled him to enter the United States without a proper visa on July 12, 2002. Upon arrival at Newark Airport, Bayo signed an English-language Form I-94W, even though he asserts that he neither speaks nor reads English. Bayo overstayed the 90 days to which an ordinary VWP traveler is entitled and eventually settled in Indianapolis, Indiana, where he met Tatiana Sia, a United States citizen. On April 21, 2006, he married her. He then sought an adjustment of status to legal permanent resident status based on that marriage.

On September 26, 2006, Immigration and Customs Enforcement ("ICE") received information from the National Security Investigation Division, Compliance Enforcement Unit that Bayo had entered the United States illegally under a Belgian passport. Cross-referencing this information with its immigration files enabled ICE to locate Bayo's pending I-130 and I-485 applications for lawful permanent residence status based on marriage. ICE officers visited Bayo's home on November 20, 2006, and questioned him about his immigration status. He freely admitted to using the stolen passport and turned it over. The DHS then promptly ordered Bayo's removal, selecting as the basis for its action Bayo's overstay under the VWP. (Fraud was another potential removal ground.) In accordance with the terms of the I-94W form that he signed, Bayo received no removal hearing.

Edited February 24, 2010 by Boiler

[trillium13 84]

We were VWP adjusters, and my husband had a large amount of overstay. (not the most on this board, but up there ) We had no issues and were not even asked about it ever. See our timeline, and feel free to PM me if you have specific questions.

I am not saying this is the best way because it is certainly NOT in terms of being worry free. If we could have done it in a less stressful way, we would have. You do have the option to do this in a way that would involve a lot less worrying, but you would have to be apart for some time. See:

http://www.visajourney.com/forums/index.ph...page=i130guide1

If you want to go about it without leaving the US:

http://www.visajourney.com/forums/index.ph...page=i130guide2

[sachinky 465]

Obviously, it's always best to file before your VWP is up but come on, that guy stole a frikken passport to enter the U.S. fraudently. He could've married 4 USCs, his AOS would've still been DENIED. DUH. I'm not going to bother reading through that verbose document but the first paragraph is enough. Some things ARE forgiven when you marry a USC such as overstays. Plenty of real world examples here on VJ. Other things are not. Like material misrepresentation. That's a lifetime bar with no chance of a waiver.

[Frenchie09 0]

Thanks lovelyalex! You put my worries to rest!

[lego_lego 0]

Hey guys, I just want to say thank you so much for all your responses. It's really great to have you guys here, who know about this and have been able to help so greatly.

Everything seems to be in order except one lingering problem: The I-864 Affidavit of Support.

The problem is, we simply can't get a co-sponsor. We are not close to my husbands family and he can't get them to agree to it. We don't have anyone who will do this. I'm really not sure the best way to go... He has never worked and so has no tax information from years passed. His mum supports him in school and living money and what not, but he doesn't work. Also, I have enough money in savings for us to live (food/rent) etc and I can get a little bit of support from back home in Australia.

If he works now it will be unlikely to be beyond the poverty limit. Time is running out, and the I-864 is looking like the greatest of obstacles right now. I just don't know how to scrape through to get this form accepted

[sachinky 465]

Gonna have to get a job or a joint sponsor. No way around this.

[Laura & Kyle 16]

Obviously, it's always best to file before your VWP is up but come on, that guy stole a frikken passport to enter the U.S. fraudently. He could've married 4 USCs, his AOS would've still been DENIED. DUH. I'm not going to bother reading through that verbose document but the first paragraph is enough. Some things ARE forgiven when you marry a USC such as overstays. Plenty of real world examples here on VJ. Other things are not. Like material misrepresentation. That's a lifetime bar with no chance of a waiver.

The thing you missed, is that I'm not suggesting not to go the VWP route. I am going through VWP-AOS... The guy was not deported based on his AOS or anything else. The ruling states he was deported because he overstayed, not because of AOS. Of course, USCIS was tipped off on this, and they used his overstay as the means to deport him. I know people have been successful with overstays, but I'm suggesting that current cases are starting (in 5/11 courts) to decide cases based on overstay, rather than even looking at the VWP or USC spouse.

As far as the I-864, you've really got to have that co-sponsor... I do not know if you have to have the past year's tax information to proceed with that or not (based on the fact his mom paid for everything for him last year, so I'm guessing he filed as a dependent). I know at least last year's info is requested with the application, but don't know what happens in the case of being a dependent (He has never worked, so I don't think he even files as a dependent- his mother would just file for him.. so would he send in a copy of this?).

I wish you the best of luck, but it seems as though the financial aspect of this is going to be tough for you. That may be an understatement.

[sachinky 465]

"The thing you missed, is that I'm not suggesting not to go the VWP route. I am going through VWP-AOS... The guy was not deported based on his AOS or anything else. The ruling states he was deported because he overstayed, not because of AOS. Of course, USCIS was tipped off on this, and they used his overstay as the means to deport him. I know people have been successful with overstays, but I'm suggesting that current cases are starting (in 5/11 courts) to decide cases based on overstay, rather than even looking at the VWP or USC spouse."

Neither am I suggesting not to go via the WVP/AOS route so I don't understand the relevance of your first sentence. Secondly, like I said, I didn't read the whole page, but was he caught before he filed for AOS? If yes, then he would be deported based on his overstay and his fraudent use to gain entry. If no, I'm guessing when he filed for AOS, they figured out this was the guy who used the stolen Belgian passport--this means he entered illegally, similar to EWI and he couldn't AOS off of that so his AOS would be denied and he would be deported anyway as a result of his overstay. Deportation based on his overstay/illegal entry and presence either way.

I'm not interested in debating this further. Obviously, it is always recommended and encouraged to file for AOS before the I94 expires up. I was just reading a case where this woman on a K-1 had gotten married but didn't file for AOS due to financial constraints. She was arrested when she was unable to show lawful presence, detained and then deported. However, mostly people don't seem to have problem with short overstays.

Edited February 24, 2010 by sachinky

[JERIII 8]

Obviously, it's always best to file before your VWP is up but come on, that guy stole a frikken passport to enter the U.S. fraudently. He could've married 4 USCs, his AOS would've still been DENIED. DUH. I'm not going to bother reading through that verbose document but the first paragraph is enough. Some things ARE forgiven when you marry a USC such as overstays. Plenty of real world examples here on VJ. Other things are not. Like material misrepresentation. That's a lifetime bar with no chance of a waiver.

Actually, reading the whole document is a good idea. The court writes the following:

During the time when a nonimmigrant visitor is within the VWP's 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays her 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed.

The issue here is not whether an overstay is forgiven (it is), but rather whether a person is eligible to file for AOS at all. According to this court's decision, a person an the VWP is apparently not eligible after the 90 days have expired. Note that the court writes this as though it is well-known case law.

[Boiler 46,074]

Actually, reading the whole document is a good idea. The court writes the following:

During the time when a nonimmigrant visitor is within the VWP's 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays her 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed.

The issue here is not whether an overstay is forgiven (it is), but rather whether a person is eligible to file for AOS at all. According to this court's decision, a person an the VWP is apparently not eligible after the 90 days have expired. Note that the court writes this as though it is well-known case law.

It does not say that, they are talking about waived rights.

[JERIII 8]

It does not say that, they are talking about waived rights.

Sorry? I don't understand the reasoning then, I quote again (and I emphasis this is not me, it is lifted from the decision):

During the time when a nonimmigrant visitor is within the VWP's 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays her 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status.

All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed

.

The "waiver" is question is the one all VWP visitors accept when they enter. The sentence in bold seems quite clear. It says that an alien on the VWP cannot apply for AOS after 90 days have elapsed.

[trillium13 84]

The "waiver" is question is the one all VWP visitors accept when they enter. The sentence in bold seems quite clear. It says that an alien on the VWP cannot apply for AOS after 90 days have elapsed.

But people do apply, all the time, and get approved. I can vouch for that personally. We had significant overstay. I have only heard of one case where someone was denied AOS for NO OTHER reason than overstay. All the other cases have had one or more other glaring issues.

[Laura & Kyle 16]

But people do apply, all the time, and get approved. I can vouch for that personally. We had significant overstay. I have only heard of one case where someone was denied AOS for NO OTHER reason than overstay. All the other cases have had one or more other glaring issues.

I was the one who supplied the court case mentioned in this post, and I have to say I agree completely with you, trillium. I guess you could say there's always a chance that you could be denied, but the chances multiply with other glaring issues. Of course, the USCIS does not post their "percentages" of success, it's just something you have to keep in mind while deciding when to file an AOS or any application for that matter. I'm not for sure, but at least from what I have seen on this board, there are many more approvals from VWP than denials (actually don't remember seeing a rather typical vwp-aos vj'er post here).

[longey 1]

Once you have sent off your application you'll get your NOA1. These are basically receipts saying that they have gotten your application and that you are 'in the system'. If you forgot to add something in, or there is some information missing or incomplete they will then be in touch for further information (a RFE). If you get a RFE it is my understanding you have a certain amount of time to get what they want to them.

This is almost correct (as far as I know, at least).

If some very elementary thing is wrong with your application (e.g., you forgot to sign a form or included the wrong or no payment) your package will be rejected right away and sent back to you -- without any NOA. You would then have to fix the problem and resubmit the complete application. Not dramatic, but delays things somewhat.

Issues with supporting documents (tax returns etc.) will be addressed through an RFE after they accepted the application and sent you the NOA, as stated by lovelyalex.