Adjustment of Status from Visa Waiver Program Marriage Based

[charlienlaura10 0]

No this is a recent rule (January of this year) and not everyone is aware of it yet. Whether it WILL get applied also seems to be hit-or-miss. And it only applies to applying for AOS after the VWP I-94 has expired.

Here's my post that has the laws on it just so you have facts: http://www.visajourney.com/forums/topic/257044-seventh-circuit-ruling-re-vwp-and-aos/

Long story short, as you have decided to get married, do it NOW and file AOS (and the I-130) BEFORE his period of stay expires just to be safe. That way you have every chance and he has no "overstay" to worry about. Please also be aware that he cannot work until he gets his EAD or greencard.

My personal opinion (take it or leave it) is that as you have a baby on the way (and the expenses associated with that) you should marry, and he should leave and file CR-1. This means he can go home to work and save money. He can still visit you on the VWP of course, and when he arrives in the US (on his CR-1 visa) he will be issued a greencard immediately (at least the stamp, the physical card might take a while) which means he can also work. I know with an impending "new addition" that would be my choice.. to save as much money as possible and to be SURE, 100% sure that he isn't going to have any trouble.

No-one says he WILL have trouble, but it's not 100% sure, and I love my husband too much to risk even a 1% chance that we would be denied and he would be deported with no chance of appeal.

As for your original question, No, being on medicaid shouldn't affect your ability to sponsor.

Good luck with your decision.

**Edit - I have replied on that thread too: http://www.visajourney.com/forums/topic/255283-overstayed-and-then-got-married/page__view__findpost__p__3950322

I re-read her post and you should know that her ONLY hope right now of staying in the US with her husband is to attempt to AOS. It might not work, but it's her ONLY chance. If they are denied she will be deported and because of the length of overstay face a 10 year ban. I know I'd risk it if I were in her situation. In yours, where you have NO risk of ban right now because there's no overstay I wouldn't risk it.

So I have read these links you have posted about the Bayo case. I think it would be appropriate to use the term "ruling" rather than "rule", no? It originally implied to me that you meant it was actually a new rule as in a law rather than what it actually is from what Ive gathered. Secondly, this case is base on basically an illegal entry, he came in on a fake vwp? Yes I do see your point that it was ruled against him based on the overstay but I think that the fact that he entered the way he did is created the red flags in the first place. I appreciate your advice and we will make our decision carefully considering everything, I just felt it was important to point that out. If I was a careless person I wouldnt be on a forum asking for advice.

[Rebecca Jo 1,962]

So I have read these links you have posted about the Bayo case. I think it would be appropriate to use the term "ruling" rather than "rule", no? It originally implied to me that you meant it was actually a new rule as in a law rather than what it actually is from what Ive gathered. Secondly, this case is base on basically an illegal entry, he came in on a fake vwp? Yes I do see your point that it was ruled against him based on the overstay but I think that the fact that he entered the way he did is created the red flags in the first place. I appreciate your advice and we will make our decision carefully considering everything, I just felt it was important to point that out. If I was a careless person I wouldnt be on a forum asking for advice.

charlielaura10 - Vanessa gave you the link to her post. I hope you read my answer to her beneath it. It explains a bit why these rulings are potentially important.

Although I do want to say to Vanessa - I'm a little disappointed you didn't come back to that discussion. I think it would be helpful to your full understanding of the issues.

[Rebecca Jo 1,962]

If you have a co-sponsor, you (the primary sponsor) does not need to meet the income level. The co-sponsor does.

I don't believe anyone is saying you can't AOS from VWP, however, they are simply giving a warning, there are some cases where VWP ended badly for the couple. (mostly because they filed for AOS after the 90 days of entry, and USCIS used that to deny the application, and deport the person, since the VWP offers no appeal in this case).

If you choose to go this route, you had better have all your info lined up correctly, in order to avoid a sticky ending...

Bobby, I don't want to start a fire here because I respect your knowledge and what you do for this community. But aside from these rulings where there was another serious issue at play, can you show me case where the AOS was denied?

[VanessaTony 3,567]

charlielaura10 - Vanessa gave you the link to her post. I hope you read my answer to her beneath it. It explains a bit why these rulings are potentially important.

Although I do want to say to Vanessa - I'm a little disappointed you didn't come back to that discussion. I think it would be helpful to your full understanding of the issues.

Actually the reason I didn't is because I thought I saved it in my "watched topics" but it turned out I hadn't, then i had to relocate it for this post. Then i had to make dinner. If you like I'll be there shortly.

The thread bobby_umit is talking about is this one: http://www.visajourney.com/forums/topic/256575-strict-reading-of-visa-rule-trips-up-more-couples/ they were denied because they sent the I-485 only and forgot the I-130. When the time came to re-file the I-94 date had passed so they denied and ICE came and detained him.

The reason they're fighting it (and I think winning) is because USCIS didn't notice the error and sent him his I-765 and HAD they noticed the error he may not have passed his I-94 date.

[VanessaTony 3,567]

So I have read these links you have posted about the Bayo case. I think it would be appropriate to use the term "ruling" rather than "rule", no? It originally implied to me that you meant it was actually a new rule as in a law rather than what it actually is from what Ive gathered. Secondly, this case is base on basically an illegal entry, he came in on a fake vwp? Yes I do see your point that it was ruled against him based on the overstay but I think that the fact that he entered the way he did is created the red flags in the first place. I appreciate your advice and we will make our decision carefully considering everything, I just felt it was important to point that out. If I was a careless person I wouldnt be on a forum asking for advice.

Yes and no to "ruling" vs "rule". It is their interpretation of the rule that already exists, which was previously ignored, that is the part I was referencing:

"5. The next question is whether there's a conflict between INA 245© - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions. The CtApp resolved the apparent ambiguity by interpreting 245©(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application. That conclusion - wrong as it is - is the unanimous view of the 6 other CtApps to consider the issue. See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006)."

Either way... my shoulder hurts so I can't think straight. Take it or leave it. I just wanted to make sure you were informed of the risks.

[Rebecca Jo 1,962]

Yes and no to "ruling" vs "rule". It is their interpretation of the rule that already exists, which was previously ignored, that is the part I was referencing:

"5. The next question is whether there's a conflict between INA 245© - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions. The CtApp resolved the apparent ambiguity by interpreting 245©(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application. That conclusion - wrong as it is - is the unanimous view of the 6 other CtApps to consider the issue. See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006)."

Either way... my shoulder hurts so I can't think straight. Take it or leave it. I just wanted to make sure you were informed of the risks.

Vanessa - these are 'rulings'. Court rulings. They aren't new rules for immigration to the United States.

[VanessaTony 3,567]

Vanessa - these are 'rulings'. Court rulings. They aren't new rules for immigration to the United States.

John - I didn't say they were. I said it was an INTERPRETATION of rules that already exist and if everyone starts interpreting them the same way (which is the whole point of case law as stated by the OP just a few posts up) the were up ###### creek without a paddle... no rights to appeal and all that...

I personally wouldn't risk it unless I HAD to. The OP's fiance is from the UK, hardly a difficult country to immigrate from. The OP's fiance hasn't already overstayed the VWP. I personally would do it the way where I KNOW there are no risks. As I already stated, a 1% risk that someone will look at my case the same way is still too much risk for me. I love my husband and the thought of him being deported and risking him not being able to come back easily (it's harder once you're deported) is just not an option for me.

Edited May 21, 2010 by Vanessa&Tony

[Bobby+Umit 161]

Bobby, I don't want to start a fire here because I respect your knowledge and what you do for this community. But aside from these rulings where there was another serious issue at play, can you show me case where the AOS was denied?

Here is one - from this very board:

My link

Simple google search for AOS denied from vwp will show you a lot more.

The point I was making was that under the VWP, you give up your right to appeal the decision. So - if your going to AOS this route, do so prior to going out of status, (my standard mantra) and have other paperwork in order to avoid issues. (which seems to get these cases in the denial mode). (cross your t's and dot your i's)

My understanding of all the things I have read is that USCIS can use the "no appeal" gotcha to deny, based on the reasoning you went over the 90 days of the VWP (violating the conditions).

If you filed for AOS prior to the I-94 expiring, you status would be frozen - so they can't get you.

This is similar to people using the visitors visa (b-2) intending to come here to the US to marry and immigrate. Sure - the odds are that you will have no issues, but it sucks if your that 1% that gets into trouble - right?

[juliava 80]

I would just get my stuff together and go ahead and apply for AOS very carefully instead of wasting time searching the web for approved and denied VWP cases. Time is ticking away.

[Rebecca Jo 1,962]

Here is one - from this very board:

My link

Simple google search for AOS denied from vwp will show you a lot more.

The point I was making was that under the VWP, you give up your right to appeal the decision. So - if your going to AOS this route, do so prior to going out of status, (my standard mantra) and have other paperwork in order to avoid issues. (which seems to get these cases in the denial mode). (cross your t's and dot your i's)

My understanding of all the things I have read is that USCIS can use the "no appeal" gotcha to deny, based on the reasoning you went over the 90 days of the VWP (violating the conditions).

If you filed for AOS prior to the I-94 expiring, you status would be frozen - so they can't get you.

This is similar to people using the visitors visa (b-2) intending to come here to the US to marry and immigrate. Sure - the odds are that you will have no issues, but it sucks if your that 1% that gets into trouble - right?

Ah, yes I remember reading that one.

But that's not a denial because of filing from the VWP or because of any overstay. That's a denial for failure to meet the financial requirements of the I864.

I agree with you about the level of risk being there.

IMO, though it's always been there. VWP entrants have ALWAYS waived their right to an appeal. That's not new. What is new with these recent rulings is IF there is an overstay, the Service is using that against the petitioner rather than fight ANY OTHER PROBLEM. In the case you link above, it wouldn't matter whether there was a B-2 entry, a VWP entry, overstay or not; the case had no legs because of the financials.

If there's a big problem with the case and it's denied (overstay or not) a VWP entrant is still up the creek without a paddle.

I guess I don't see this as anything other than the big bogey man we've been warning people about on these forums for years. Adjusting from within the US bears an element of risk. If your nose is clean and you have preserved your status up to the time of filing, the evidence shows most cases will be fine. Even being 'out of status' has been treated in many immigration communities as 'no big deal' because of the marriage to the USC. How many threads have you seen where no one understands a K1 entrant is 'out of status' if they don't file their adjustment before the I94 expires? If you want to get really hairy about this, you could say these recent precedents don't look brilliant for the K1 who waits months or years to file to adjust, all the while accruing enough out-of-status time to earn a bar.

IMO these new rulings from USCIS don't (at the very instant) bode badly for people who are adjusting from the VWP. They are at this point only a potent of what MIGHT be coming. I think it's important we point this trend out to members, but it's a fine line to walk because adjusting from the VWP via marriage to a US citizen IS a perfectly legal path with the Service.

[JimVaPhuong 4,863]

Ah, yes I remember reading that one.

But that's not a denial because of filing from the VWP or because of any overstay. That's a denial for failure to meet the financial requirements of the I864.

I agree with you about the level of risk being there.

IMO, though it's always been there. VWP entrants have ALWAYS waived their right to an appeal. That's not new. What is new with these recent rulings is IF there is an overstay, the Service is using that against the petitioner rather than fight ANY OTHER PROBLEM. In the case you link above, it wouldn't matter whether there was a B-2 entry, a VWP entry, overstay or not; the case had no legs because of the financials.

If there's a big problem with the case and it's denied (overstay or not) a VWP entrant is still up the creek without a paddle.

I guess I don't see this as anything other than the big bogey man we've been warning people about on these forums for years. Adjusting from within the US bears an element of risk. If your nose is clean and you have preserved your status up to the time of filing, the evidence shows most cases will be fine. Even being 'out of status' has been treated in many immigration communities as 'no big deal' because of the marriage to the USC. How many threads have you seen where no one understands a K1 entrant is 'out of status' if they don't file their adjustment before the I94 expires? If you want to get really hairy about this, you could say these recent precedents don't look brilliant for the K1 who waits months or years to file to adjust, all the while accruing enough out-of-status time to earn a bar.

IMO these new rulings from USCIS don't (at the very instant) bode badly for people who are adjusting from the VWP. They are at this point only a potent of what MIGHT be coming. I think it's important we point this trend out to members, but it's a fine line to walk because adjusting from the VWP via marriage to a US citizen IS a perfectly legal path with the Service.

I think you're oversimplifying the case law, much of which is in the federal court of appeals system and not USCIS.

The waiver of right to appeal for VWP entrants doesn't apply to asylum seekers, so it's not absolute and universal.

The "Freeman" exception (Freeman v. Gonzalez) has been accepted by the 6th, 7th, 8th, and 10th circuit courts, and clarified by the 9th circuit court. In the Freeman case, the court established that an alien who entered using the VWP, married a US citizen, and subsequently filed for adjustment of status while their non-immigrant status was still being maintained should be granted the procedural safeguards of 8 CFR 245.2, just like any other spouse of a US citizen. This doesn't change the risk of denial, since AOS is always discretionary, but it does affect whether an appeal of the decision will be accepted. I think the conjecture being offered by some here was that USCIS uses the "no contest" waiver of the VWP to deny 'iffy' cases, and that those cases might otherwise have been approved initially if USCIS knew that the alien had the ability to appeal the decision.

The 9th circuit's clarification of the "Freeman" exception occurred in their decision in Momeni v. Chertoff, where they ruled that Momeni could not circumvent the "no contest" clause because the adjustment of status was filed after the I-94 expired. The 10th circuit court reinforced this viewpoint in Ferry v. Gonzales.

The conclusion is that a VWP entrant who files for AOS as the immediate relative of a US citizen is not "up a creek without a paddle" if the AOS is filed before their non-immigrant status has expired. Assuming USCIS adjudicates cases in equal fairness, whether or not the decision can be appealed, then filing before or after the I-94 expires shouldn't affect your chances of success. However, if you don't want to risk your future immigration status on a presumption of fairness by USCIS, then it would be wise to file for the AOS before the I-94 expires. Prior case law indicates you'd probably have a chance to appeal the decision.

There is really no comparison with the K1. Yes, a K1 is out of status after the I-94 expires, but a K1 entry specifically allows for adjustment of status if the K1 marries the petitioner within 90 days. Their eligibility to adjust status is defined in the INA. The INA also specifically excepts them from the general rule that an alien who has not maintained non-immigrant status is not eligible to adjust status, which means their eligibility is unaffected by the date on the I-94. Unlike a VWP entrant who marries and attempts to adjust status, a K1 entrant is not asking to be treated under a different section of the INA than the one that covers their class of entry.

[Rebecca Jo 1,962]

I think you're oversimplifying the case law, much of which is in the federal court of appeals system and not USCIS.

The waiver of right to appeal for VWP entrants doesn't apply to asylum seekers, so it's not absolute and universal.

The "Freeman" exception (Freeman v. Gonzalez) has been accepted by the 6th, 7th, 8th, and 10th circuit courts, and clarified by the 9th circuit court. In the Freeman case, the court established that an alien who entered using the VWP, married a US citizen, and subsequently filed for adjustment of status while their non-immigrant status was still being maintained should be granted the procedural safeguards of 8 CFR 245.2, just like any other spouse of a US citizen. This doesn't change the risk of denial, since AOS is always discretionary, but it does affect whether an appeal of the decision will be accepted. I think the conjecture being offered by some here was that USCIS uses the "no contest" waiver of the VWP to deny 'iffy' cases, and that those cases might otherwise have been approved initially if USCIS knew that the alien had the ability to appeal the decision.

The 9th circuit's clarification of the "Freeman" exception occurred in their decision in Momeni v. Chertoff, where they ruled that Momeni could not circumvent the "no contest" clause because the adjustment of status was filed after the I-94 expired. The 10th circuit court reinforced this viewpoint in Ferry v. Gonzales.

The conclusion is that a VWP entrant who files for AOS as the immediate relative of a US citizen is not "up a creek without a paddle" if the AOS is filed before their non-immigrant status has expired. Assuming USCIS adjudicates cases in equal fairness, whether or not the decision can be appealed, then filing before or after the I-94 expires shouldn't affect your chances of success. However, if you don't want to risk your future immigration status on a presumption of fairness by USCIS, then it would be wise to file for the AOS before the I-94 expires. Prior case law indicates you'd probably have a chance to appeal the decision.

There is really no comparison with the K1. Yes, a K1 is out of status after the I-94 expires, but a K1 entry specifically allows for adjustment of status if the K1 marries the petitioner within 90 days. Their eligibility to adjust status is defined in the INA. The INA also specifically excepts them from the general rule that an alien who has not maintained non-immigrant status is not eligible to adjust status, which means their eligibility is unaffected by the date on the I-94. Unlike a VWP entrant who marries and attempts to adjust status, a K1 entrant is not asking to be treated under a different section of the INA than the one that covers their class of entry.

Well, I probably am oversimplifying it because I'm not a lawyer.

I'm not sure why you alluded to asylees, so if you could explain that I'd appreciate it.

What I'm trying to say (apparently poorly) is how do we advise people about this? Adjusting from the VWP is a legal path (despite all the arguing on Vj about it). Where the arguing happens is the bit about intent. IMO, if CBP has let you in then you won't be questioned about intent. In fact I've never read of a VWP entrant specifically being queried at the interview about intent. BUT, we all know entering on the VWP with intent to adjust is an abuse of immigration law. As such, the topic is treated on other communities as 'the Ten Foot pole' topic for the obvious reason that Admin (of those communities) does not want to be party to such actions.

Counsel on another forum used to jokingly query his clients (regarding adjusting from the VWP) as "do you feel lucky, pal"? My understanding these days is his opinion is not quite so lax. But the fact remains adjusting is still a legal path.

*edited to add that adding another wrinkle to VWP adjusting is probably (on Vj) going to look like more snarling at people about abusing the system. how do we get the message across unless the community as a whole is going to act more responsibly towards ANY question about this practice.*

Edited May 24, 2010 by JohnnyQuest

[JimVaPhuong 4,863]

Well, I probably am oversimplifying it because I'm not a lawyer.

I'm not sure why you alluded to asylees, so if you could explain that I'd appreciate it.

What I'm trying to say (apparently poorly) is how do we advise people about this? Adjusting from the VWP is a legal path (despite all the arguing on Vj about it). Where the arguing happens is the bit about intent. IMO, if CBP has let you in then you won't be questioned about intent. In fact I've never read of a VWP entrant specifically being queried at the interview about intent. BUT, we all know entering on the VWP with intent to adjust is an abuse of immigration law. As such, the topic is treated on other communities as 'the Ten Foot pole' topic for the obvious reason that Admin (of those communities) does not want to be party to such actions.

Counsel on another forum used to jokingly query his clients (regarding adjusting from the VWP) as "do you feel lucky, pal"? My understanding these days is his opinion is not quite so lax. But the fact remains adjusting is still a legal path.

*edited to add that adding another wrinkle to VWP adjusting is probably (on Vj) going to look like more snarling at people about abusing the system. how do we get the message across unless the community as a whole is going to act more responsibly towards ANY question about this practice.*

I guess I also didn't do a very good job of making my point clear.

It was your comment about a VWP entrant who was denied AOS, with or without an overstay, being "up the creek without a paddle" that I thought was oversimplifying the situation. I mentioned the asylum exception to point out that, even without relying on case law, there is an exception to the "no contest" waiver built into the INA, so the rule itself is not absolute. I then went on to point out case law where exceptions were made to the "no contest" rule.

To use your metaphor, I'd say a VWP entrant who was denied AOS without an overstay is in a leaky canoe, but they have a paddle - and a chance at an appeal.

How do we advise people? Well, I'd say you start with basics that apply in every AOS case - adjustment of status is discretionary. No matter how well qualified you think you might be, you could be denied for a variety of reasons. This is true, no matter what sort of visa you entered with. One question is whether the odds of being denied increase if you attempt to adjust status after a VWP entry. The consensus, based on anecdotal evidence, seems to be yes. The remaining question is whether you'll have any recourse if you are denied. The answer, based on the case law, seems to be that it depends on whether your I-94 was expired when you applied for the AOS.

"It can't be done" is certainly not a valid statement, but I can't really fault someone who advises against it. If it were me, I know that I wouldn't be willing to take the risk, knowing that there are alternatives that have little or no risk.

[Rebecca Jo 1,962]

I guess I also didn't do a very good job of making my point clear.

It was your comment about a VWP entrant who was denied AOS, with or without an overstay, being "up the creek without a paddle" that I thought was oversimplifying the situation. I mentioned the asylum exception to point out that, even without relying on case law, there is an exception to the "no contest" waiver built into the INA, so the rule itself is not absolute. I then went on to point out case law where exceptions were made to the "no contest" rule.

To use your metaphor, I'd say a VWP entrant who was denied AOS without an overstay is in a leaky canoe, but they have a paddle - and a chance at an appeal.

How do we advise people? Well, I'd say you start with basics that apply in every AOS case - adjustment of status is discretionary. No matter how well qualified you think you might be, you could be denied for a variety of reasons. This is true, no matter what sort of visa you entered with. One question is whether the odds of being denied increase if you attempt to adjust status after a VWP entry. The consensus, based on anecdotal evidence, seems to be yes. The remaining question is whether you'll have any recourse if you are denied. The answer, based on the case law, seems to be that it depends on whether your I-94 was expired when you applied for the AOS.

"It can't be done" is certainly not a valid statement, but I can't really fault someone who advises against it. If it were me, I know that I wouldn't be willing to take the risk, knowing that there are alternatives that have little or no risk.

Then the membership here needs to stop yelling about intent; about how VWP adjusters are short-cutting the system and 'cutting in line; and various and sundry other wailings about VWP entrants taking their immigration cookie; and instead call it just what it has always been - a calculated risk.