Weird case!!!

[ValerieA 350]

It appears that the US instead of writing different rules for different parts of the country have modified the regulations on who can file a I-485 to adjust status to exclude anyone who is outside of their authorized stay within the US.

Ummm, no. It's only applicable to those who entered on the VWP and overstayed.

Edited September 20, 2010 by ValerieA

[desert_fox 32]

Ummm, no. It's only applicable to those who entered on the VWP and overstayed.

I meant to say that...it appears that the USCIS is writing new regultions ....etc.

and I was talking specifically about adjustment of status....including thoes who entered on the VWP...if they are out of status, they are inelgible to file an I-485

[Harpa Timsah 13,258]

I meant to say that...it appears that the USCIS is writing new regultions ....etc.

and I was talking specifically about adjustment of status....including thoes who entered on the VWP...if they are out of status, they are inelgible to file an I-485

No, it does not "include" VWP people... it is ONLY regarding them and overstay.

And, you can't be 100% sure what the new memorandum will be, so I wouldn't state it as fact just yet. It doesn't look good, for sure, but announcing that VWP overstays are ineligible to file now is technically untrue.

[ValerieA 350]

No, it does not "include" VWP people... it is ONLY regarding them and overstay.

And, you can't be 100% sure what the new memorandum will be, so I wouldn't state it as fact just yet. It doesn't look good, for sure, but announcing that VWP overstays are ineligible to file now is technically untrue.

Yuppers. +1,000,000.

Does anybody know, if this is based on a current case going through the courts, who and where it is? Would be nice to track it if we could.

[desert_fox 32]

No, it does not "include" VWP people... it is ONLY regarding them and overstay.

And, you can't be 100% sure what the new memorandum will be, so I wouldn't state it as fact just yet. It doesn't look good, for sure, but announcing that VWP overstays are ineligible to file now is technically untrue.

We are playing word games.....a VWP overstay is by definition out of status, and hence are ineligible to file an I-485.

It seems that the ones who filed before the effective date of this change and being handled on a case-by-case basis.

[ValerieA 350]

We are playing word games.....a VWP overstay is by definition out of status, and hence are ineligible to file an I-485.

It seems that the ones who filed before the effective date of this change and being handled on a case-by-case basis.

People who have overstayed are NOT ineligible to file an I-485, that is what we are trying to make clear. People who entered on the VWP and overstayed MAY be made ineligible by what is going on now. Yes, I think we are all saying the same thing, Harpa and I are just trying to make sure it is clearly worded so people who happen on this thread in the future don't get confused and think they can't file AOS because they entered on B-2 (for example) and overstayed.

[Harpa Timsah 13,258]

We are playing word games.....a VWP overstay is by definition out of status, and hence are ineligible to file an I-485.

It seems that the ones who filed before the effective date of this change and being handled on a case-by-case basis.

Ugh, NO. This change has NOT happened yet. We are not sure what is going to happen, and the change has NOT OCCURRED. Words are important.

Edit: Yes, we are trying to be very clear here as to not create confusion.

Edited September 20, 2010 by Harpa Timsah

[schatzi3277 6]

http://www.ilw.com/articles/2009,0416-isaacson.shtm

I just found this article and found it interesting. And by all means we are here to help each other and not to fight. I was just giving information that I received and there is no need to fight or speculate. All we can do is wait and see.

[desert_fox 32]

Ugh, NO. This change has NOT happened yet. We are not sure what is going to happen, and the change has NOT OCCURRED. Words are important.

It certainly has happened...read the instructions on who cannot file an I-485. ' If you are a B-e overstayer, a VWP overstayer....anyone on any visa who has overstayed...you cannot file an I-485....period.

[ValerieA 350]

It certainly has happened...read the instructions on who cannot file an I-485. ' If you are a B-e overstayer, a VWP overstayer....anyone on any visa who has overstayed...you cannot file an I-485....period.

Um, no, this is what it says:

F. You failed to maintain your nonimmigrant status, unless your failure to maintain status was through no fault of your own or for technical reason; unless you are applying because you are:

1. An immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old)

I overstayed my B-2 visa and it did not preclude me from filing an I-485. Overstay was a negative factor against me, yes, but it was outweighed by all the positive factors - the #1 being that I am married to a US citizen.

Edited September 20, 2010 by ValerieA

[Harpa Timsah 13,258]

It certainly has happened...read the instructions on who cannot file an I-485. ' If you are a B-e overstayer, a VWP overstayer....anyone on any visa who has overstayed...you cannot file an I-485....period.

Sorry fox, that is patently wrong. Overstays are most often forgiven for direct relatives of USCs. Most of the people on this AOS forum are eligible through marriage to a USC, and therefore any overstay would normally be forgiven. Yes, it is different for other elegibility categories, but there is no "period" about it. I also think that other categories are forgiven if they fill out a I-485a, but not too sure about that form or other categories. Overstays CAN be forgiven in many instances.

What MAY be changing is that VWP overstays MIGHT no longer be eligible. But that has not happened for sure yet. That is what we are discussing here.

[desert_fox 32]

Sorry fox, that is patently wrong. Overstays are most often forgiven for direct relatives of USCs. Most of the people on this AOS forum are eligible through marriage to a USC, and therefore any overstay would normally be forgiven. Yes, it is different for other elegibility categories, but there is no "period" about it. I also think that other categories are forgiven if they fill out a I-485a, but not too sure about that form or other categories. Overstays CAN be forgiven in many instances.

What MAY be changing is that VWP overstays MIGHT no longer be eligible. But that has not happened for sure yet. That is what we are discussing here.

That was in those days...we are talking about now. Why do you think thee people are having problems??

The decision of the 9th circuit said that removal of overstayers on VWP has priority over adjusting status...and without appeal in thie case.

I'm just saying that the USCIS fixed the problem by making anyone who files an I-485 while out out of status is inelgible to do so. So, hence its the VWP overstayers who are screwed. I think this change is so new that there is no history yet on the othe visa clases if they are permitted to adjust or not

Óbviously the field offices now have to send these cases to HQ in Wash DC for a final decision pending new directions.

[Harpa Timsah 13,258]

That was in those days...we are talking about now. Why do you think thee people are having problems??

The decision of the 9th circuit said that removal of overstayers on VWP has priority over adjusting status...and without appeal in thie case.

I'm just saying that the USCIS fixed the problem by making anyone who files an I-485 while out out of status is inelgible to do so. So, hence its the VWP overstayers who are screwed. I think this change is so new that there is no history yet on the othe visa clases if they are permitted to adjust or not

Óbviously the field offices now have to send these cases to HQ in Wash DC for a final decision pending new directions.

No, you are wrong.

[desert_fox 32]

No, you are wrong.

OK...tell me why you are right??

Here is the decision of the 9th circuit

Facts

Momeni is a German citizen.   He came to the United States as a tourist on November 30, 2005.   Under a pilot program that Congress created, citizens of certain countries can come to the United States as tourists for 90 days or less without visas.³  Various conditions have to be satisfied by the country (e.g., a reciprocal program ⁴ ) and the tourist (e.g., a round-trip ticket ⁵ ).  To get the government waiver of the usual visa requirement, the tourist has to sign a waiver of his or her own right to contest removal other than on the basis of asylum.⁶

Momeni did not go back to Germany by March 1, which was 90 days after he entered the United States.   On April 11, 2006, he married a United States citizen.   In July, Momeni was taken into custody for violating the conditions of his admission under the Visa Waiver Program, and given notice that he was to be removed.   In September, Momeni and his wife applied to adjust Momeni's status.   His removal has been stayed pending disposition of this case.   Because there are no administrative proceedings available for entrants under the Visa Waiver Program except on the basis of asylum, he sought none, and instead petitioned for a writ of habeas corpus in district court.   The district court dismissed the petition on the ground that it lacked jurisdiction, and he appealed.

Analysis

I. Jurisdiction

 The district court correctly ruled that it did not have jurisdiction.   In Iasu v. Smith,⁷ we held that, for habeas petitions filed after the effective date of the REAL ID Act, a “district court plainly lack habeas jurisdiction” over challenges to removal orders.⁸  Congress amended 8 U.S.C. § 1252(a)(5) in the REAL ID Act to provide that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this [Act].”

The scope of our own jurisdiction is arguable, but in order to avoid the constitutional argument raised by Momeni that the REAL ID act could not deprive the courts of habeas jurisdiction without violating the Suspension Clause,⁹ we assume for purposes of this decision that we have jurisdiction.¹⁰

II. Merits

 Momeni entered the United States under the Visa Waiver Program, a special program for tourists from 27 countries.¹¹  The Visa Waiver Program allows tourists to enter the United States “for 90 days or less” from the designated countries without visas.¹²  To do so, they must waive “any right ․ to contest, other than on the basis of an application for asylum, any action for removal.” ¹³  Momeni has not sought asylum from Germany.   That, basically, is the end of the case.

In Freeman, the alien married the United States citizen before entering the Visa Waiver Program and sought an adjustment of status within the 90 days she could stay.   But she was thwarted from adjusting her status by the subsequent death of her husband in a car accident, shortly before their first wedding anniversary.   We noted that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman's position,” ¹⁴ a very sympathetic one, and held that in that case the adjustment of status statute superseded the no contest provision.¹⁵

None of the relevant circumstances of Freeman pertain here.   Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married after his 90 days expired;  Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired.   These distinctions disqualify Momeni from circumventing the Visa Waiver Program's no contest clause by means of adjustment of status.

We characterized this no contest clause in Handa v. Clark¹⁶ as “the linchpin of the [Visa Waiver] program, which assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede removal if he overstays.” ¹⁷  Freeman was an exception because she was eligible to adjust her status at time she arrived, under 8 U.S.C. § 1254, she applied within her 90 days, and she would have obtained her adjustment of status but for her husband's death.   Momeni, though, doesn't fall within this narrow exception.

If a Visa Waiver Program entrant does not leave when the 90 days expires, life in the United States goes on.   It may go on for many years before the alien comes to the government's attention.   There are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them.   If it were, our comment in Freeman that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman's position” ¹⁸ would not be correct.

 We agree with the Tenth Circuit in Schmitt v. Maurer,¹⁹ that to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute.   Where an appellate court can construe two statutes so that they conflict, or so that they can be reconciled and both can be applied, it is obliged to reconcile them.²⁰  An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum).  Freeman is a narrow exception to the rule, but Momeni doesn't fall within this exception

AFFIRMED.

....................................................................

In one instance he was allowed to stay because he filed before the 90 days were up. Ths other guy was removed because he filed after the 90 day were up

The removal and no appeal has priority before the right to ajust status based upon marriage.

[Harpa Timsah 13,258]

You just copied and pasted from someone else, so it seems to me your misunderstanding is because you didn't read and are jumping to conclusions. I am not hopeful that you will read what I have to say, but please prove me wrong on that.

This overstay issue is regarding VWP overstays, first of all. NOT anyone else. Any decision that has to do with VWP overstays will not automatically transfer to other people, and here is why. VWP people have the priveledge of not having to apply for a visa to visit, and when they enter, they waive their rights to appeal any decision.

The issue here is not the overstay, the US has and will continue to forgive overstays as a courtesy to the USC relative. The issue here is the VWP, and its waiver of rights, which is different from all other visas, and the fact that they are immediately deportable and have no right to appeal their deportation. This is not true with other visas, even the B-2.

This is a complicated issue, and I have tried to be succinct.