Weird case!!!

[desert_fox 32]

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.

I cut a paste from the actual decision of the court.....see the references??

These other people (Non-VWP) are ineliglbe to file a I-485 if out of status...its in the instrucftions.

The only exception being if you are adjusting status based upon marriage or immediate family member who petitioned you

'Google the 9(th circuit decision yourself....I just copied and pasted to conclusion..Google it if you want to read the arguements.

[desert_fox 32]

Here...I will make it easy for you...here is one of the several links..

http://caselaw.findlaw.com/us-9th-circuit/1448616.html

[Harpa Timsah 13,258]

Sorry fox, copy and paste does not help. You are wrong. I have read the Momeni case. I am sure you are a nice person and all that, but you are wrong here. You did not read what I wrote, as I predicted. I give up.

[schatzi3277 6]

The issue with the MOMENI v. CHERTOFF case is that he applied for change of status after he already was put into removal proceedings.

'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.'

I don't think that the VWP entry was the main problem here but the time the status was trying to be adjusted.  

[Harpa Timsah 13,258]

The only exception being if you are adjusting status based upon marriage or immediate family member who petitioned you

Aha, this is what we are talking about. Now you get it.

This is what ValerieA pointed out and you refuted then.

We are talking about the fact that this exception may not work for WVP overstays, even spouses of USCs, for the reasons I outlined above. And again, for the reasons I outlined above, this will NOT automatically transfer to other overstays who otherwise would be forgiven (ie apouses), as you have suggested.

I am finally, done.

[desert_fox 32]

Aha, this is what we are talking about. Now you get it.

This is what ValerieA pointed out and you refuted then.

We are talking about the fact that this exception may not work for WVP overstays, even spouses of USCs, for the reasons I outlined above. And again, for the reasons I outlined above, this will NOT automatically transfer to other overstays who otherwise would be forgiven (ie apouses), as you have suggested.

I am finally, done.

My original point being that if you out of staus when you file, the you will lose (denied).;..now...you get it??

of course this is only in the 9th circuit...whcih is California and a few other western states...who know what is going on in the rest of the country?

I would imagine they aol follow the same rules.

[Kathryn41 3,205]

Schatzi3277 has the right interpretation here. The critical fact being overlooked in this one case offered as evidence of this 'radical change in procedure' regarding VWP applicants for AOS based upon a marriage to a US citizen is that the applicant was already in deportation proceedings when he applied to adjust status. It is clearly stated in legislation and the USCIS adjudicator's handbook that an AOS application received while the applicant is in removal procedures is automatically considered fraudulent. His AOS denial is not because he tried to adjust from a VWP but because his marriage has been seen as immigration fraud. His deportation has been put on hold waiting for the decision so if it were an absolute case that no one can adjust status based upon a VWP entry, his case would never have been put on hold pending a judicial review - he would have been removed immediately. If he and his wife had filed for his green card before he entered deportation proceedings then the relationship would not automatically be considered fraudulent and the AOS may have been approved based upon the merits of the application. It is the timing of the application that is the critical piece of information here.

Edited September 20, 2010 by Kathryn41

[desert_fox 32]

Tell you what...you guys can make you own conclusions.....I prefer the court ruling on the matter, and would NOT advise anyone to try to adjust status from a VWP. A b-2 maybe if you are still in status.

Obviously something going on after years of ignoring the matter, due to lack of investigatiors and trained personnel...but appartently.......things ar different.

Good luck to the ones who are trying...

fox

[desert_fox 32]

The issue with the MOMENI v. CHERTOFF case is that he applied for change of status after he already was put into removal proceedings.

'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.'

I don't think that the VWP entry was the main problem here but the time the status was trying to be adjusted.  

I see yoiur point.......

There is still something going on........there is going to be some kind of direction.

Im interested because I have a nephew try to adjust status for his wife that entered on a B-2

[desert_fox 32]

Schatzi3277 has the right interpretation here. The critical fact being overlooked in this one case offered as evidence of this 'radical change in procedure' regarding VWP applicants for AOS based upon a marriage to a US citizen is that the applicant was already in deportation proceedings when he applied to adjust status. It is clearly stated in legislation and the USCIS adjudicator's handbook that an AOS application received while the applicant is in removal procedures is automatically considered fraudulent. His AOS denial is not because he tried to adjust from a VWP but because his marriage has been seen as immigration fraud. His deportation has been put on hold waiting for the decision so if it were an absolute case that no one can adjust status based upon a VWP entry, his case would never have been put on hold pending a judicial review - he would have been removed immediately. If he and his wife had filed for his green card before he entered deportation proceedings then the relationship would not automatically be considered fraudulent and the AOS may have been approved based upon the merits of the application. It is the timing of the application that is the critical piece of information here.

I see the issue that you are refering to. But the court did not use this fact as part of their decision. It was cited only in the facts of the case.

The case was decided solely on resolving two conflicting laws. One being the fact that a VWP cannot appeal, and the fact that someone has the right to adjust status based on immediate family relationships.

They only decided that the issue of no appeal rights trumps the right to adjust status.

I just wonder how the USCIS decides who they allow to adjust and whom they decide to deny. Must be some criteria other than a dart board.

[trillium13 84]

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.

Makes perfect sense to me.

Glad we applied (and were approved) when we did!

[JimVaPhuong 4,863]

I see the issue that you are refering to. But the court did not use this fact as part of their decision. It was cited only in the facts of the case.

The case was decided solely on resolving two conflicting laws. One being the fact that a VWP cannot appeal, and the fact that someone has the right to adjust status based on immediate family relationships.

They only decided that the issue of no appeal rights trumps the right to adjust status.

I just wonder how the USCIS decides who they allow to adjust and whom they decide to deny. Must be some criteria other than a dart board.

You misunderstand the decision in Momeni v. Chertoff. The 9th circuit court determined that Momeni's AOS application could not be adjudicated because it constituted a request for DHS to stop his removal proceedings, and the no-contest clause makes it impossible for a VWP entrant to make such a request. It was not that his removal "trumped" his AOS. He would not have been in the same predicament if he'd entered the US with a visa. USCIS would have been able to accept the AOS petition and stop the removal while the AOS was adjudicated. This is because people who enter the US with a visa do not agree to a no-contest clause as a condition of entry.

Anyway, section 245(c )(2) of the INA prevents an alien from adjusting status if they have worked in the US without authorization, or they aren't in lawful status at the time of the application, or have failed to maintain their lawful status since entering the US unless they are an immediate relative of a US citizen or a special immigrant defined under section 101(a)(27)(H), (I), (J), or (K).

In other words, the prohibition to adjustment of status for someone who is out of status specifically does not apply to the spouse of a US citizen. This isn't the section of the INA being used to deny adjustment of status to VWP entrants. They are denied because they are immediately deportable for having violated the terms of their entry. If USCIS chooses to remove them then the removal cannot be stopped by the AOS application. So it all depends on what they decide to do first - order the VWP entrant removed, or adjudicate the AOS application.

I entered on the Visa Waiver almost 10 years ago and I had my interview in June. I was told that it has to be put on hold because no one knows what to do with the applications from visa waivers. Today I made an info pass to find out a little more about whats going on and so I won't have to speculate anymore.

The officer was very nice and apparently USCIS is waiting on a court ruling ( what the reason for the lawsuit is I don't know and what district no idea either). After the court makes a decision immigration headquarters will be able to decide what to do with all of those applications from people that entered and filed after the I-94w has expired. Everyone that filed within the 90 days and did not overstay is fine. The problem is for those people that overstayed the i-94w. She could not give me a time frame on when a change might happen. All she said is that to renew the work permit 90 days before it expires.

Hope this information help someone that is in the same situation.

Good luck to all

Now THIS is fascinating, and makes perfect sense. There have been decisions in five federal circuit courts of appeal. There are a total of eleven circuit courts (not including the DC circuit, which only hears cases for Washington DC, and the Federal circuit, which doesn't hear immigration appeals). One more ruling would constitute a majority of the major regional circuit courts. USCIS might consider that enough to make a uniform policy.

[schatzi3277 6]

Thought this was interesting and it shows which other states make it more complicated to adjust from I-94w overstay.

May 2010: In New Jersey, Pennsylvania, Delaware and the Virgin Islands -foreign nationals who marry US citizens after entering the US on visa waiver may no longer be protected

On April 22, a decision by the United States Court of Appeals for the Third Circuit changed the legal landscape for foreign nationals married to US citizens in New Jersey, Pennsylvania, Delaware and the Virgin Islands. See

http://www.nytimes.com/2010/05/15/nyregion/15visa.html

[Brian&Nikkis 0]

Here's some hopeful news for those of you adjusting from vwp and did apply for AOS after your 90 days expired. We did the same thing and just got an update and text that our greencard has been ordered for processing today. We had our interview on 9/10 and the IO sent us out at the without saying we were approved just that we would hear something in the mail and not a word since. Good luck to everyone.

[trillium13 84]

Here's some hopeful news for those of you adjusting from vwp and did apply for AOS after your 90 days expired. We did the same thing and just got an update and text that our greencard has been ordered for processing today. We had our interview on 9/10 and the IO sent us out at the without saying we were approved just that we would hear something in the mail and not a word since. Good luck to everyone.

Awesome!

How long was your overstay? Just curious.