VISA WAIVER

[dan1100 0]

Hi there i was wondering if anyone could help us ...i entered the us on a visa waiver nad married my husband we did not know off any complications while doing this may i add. Since we have been married we have tried every possiblilty off making everything legal..have been to the immigration and were informed that we could apply for the AOS at anytime as long as i had proof of legal entry to the US. The nxt few months i had health problems and we spent that time saving for the filing fee, as like i said we had been told that we were not breaking any laws. When we returned to the immigration a few months later we were informed that i had to return home asap as the visa had expired and that a new law had been passed stating that ANY pending cases for adjustment in this same situation were being denied. We are so confused trying to do the right thing and everytime things are not as they seem.We have our documents ready to send and have been advised by our attorney that i can potentially get into trouble for now doing this. I am from England and he is a US citizen our marriage was not planned we just fell in love.. we cannot bear to be apart its such a difficult situation and any thoughts would be welcome.

[JimVaPhuong 4,863]

No new law has been passed. Whoever told you this doesn't know what they're talking about.

When you entered using the Visa Waiver Program you agreed to a "no contest" stipulation, which effectively means you waive any right to appeal any decision by an immigration officer. This has always been a sticking point for anyone trying to adjust status after a VWP entry. USCIS can arbitrarily deny the petition, and they don't have to worry about any repercussions because the decision is not subject to review. This means that the risk of being denied has always been higher for VWP entrants.

What HAS changed relatively recently are decisions in several federal courts of appeal that have upheld the USCIS position that a VWP entrant is immediately deportable after they've overstayed their entry. USCIS cannot be compelled to consider any petition filed on behalf of the VWP entrant that might stop the deportation. Because of these court decisions, USCIS field offices in the districts affected by those federal appeals courts have been automatically refusing to accept AOS petitions from VWP entrants who have overstayed, and instead immediately ordering their deportation. There has been concern brewing that USCIS (or their parent Department of Homeland Security) might unify this policy across all USCIS field offices, but there hasn't been any formal policy memorandum that I've seen that confirms this yet.

If the USCIS field office you went to confirmed that they are now implementing this policy then there's little point in filing an AOS application with them now. They could cash your check, summarily deny the AOS, and then order your deportation.

You take a risk if you remain in the US more than 180 days beyond the expiration of your authorized stay. You will be subject to an automatic 3 year ban when you leave. If you overstay more than 1 year then the ban becomes 10 years. You will have to return to your home country and either wait out the ban, or your husband could submit a hardship waiver application AFTER you are denied a visa. You'd need a really good lawyer if you expect the hardship waiver to have any chance of succeeding.

If your overstay is currently less than 180 days then I strongly advise you to leave the US, and your husband to file an I-130 petition on your behalf. If all goes well, you'll interview for a CR1 visa some months from now, and be back in the US with a green card in under a year.

[dan1100 0]

No new law has been passed. Whoever told you this doesn't know what they're talking about.

When you entered using the Visa Waiver Program you agreed to a "no contest" stipulation, which effectively means you waive any right to appeal any decision by an immigration officer. This has always been a sticking point for anyone trying to adjust status after a VWP entry. USCIS can arbitrarily deny the petition, and they don't have to worry about any repercussions because the decision is not subject to review. This means that the risk of being denied has always been higher for VWP entrants.

What HAS changed relatively recently are decisions in several federal courts of appeal that have upheld the USCIS position that a VWP entrant is immediately deportable after they've overstayed their entry. USCIS cannot be compelled to consider any petition filed on behalf of the VWP entrant that might stop the deportation. Because of these court decisions, USCIS field offices in the districts affected by those federal appeals courts have been automatically refusing to accept AOS petitions from VWP entrants who have overstayed, and instead immediately ordering their deportation. There has been concern brewing that USCIS (or their parent Department of Homeland Security) might unify this policy across all USCIS field offices, but there hasn't been any formal policy memorandum that I've seen that confirms this yet.

If the USCIS field office you went to confirmed that they are now implementing this policy then there's little point in filing an AOS application with them now. They could cash your check, summarily deny the AOS, and then order your deportation.

You take a risk if you remain in the US more than 180 days beyond the expiration of your authorized stay. You will be subject to an automatic 3 year ban when you leave. If you overstay more than 1 year then the ban becomes 10 years. You will have to return to your home country and either wait out the ban, or your husband could submit a hardship waiver application AFTER you are denied a visa. You'd need a really good lawyer if you expect the hardship waiver to have any chance of succeeding.

If your overstay is currently less than 180 days then I strongly advise you to leave the US, and your husband to file an I-130 petition on your behalf. If all goes well, you'll interview for a CR1 visa some months from now, and be back in the US with a green card in under a year.

[dan1100 0]

Thanks for your reply and for being so quick to do so! I have another question..if we were to go ahead with the AOS and it went past the 6 months stay would there then be a ban off 3yrs? I have read and been told that when you apply for AOS you are ok being here until they make their final decision and then obviously you can stay or have to leave but does the ban still occur...we have a attorney but he is hard to get hold off and something tells me we should have gone for a more expensive one to begin with..also (sorry another Q!) if we apply and get denied to you know if that will give us future problems for applying for the i130 ..thanks again you have been great! at last we get answers from someone that knows what their talking about!!

[Bobby+Umit 161]

Thanks for your reply and for being so quick to do so! I have another question..if we were to go ahead with the AOS and it went past the 6 months stay would there then be a ban off 3yrs? I have read and been told that when you apply for AOS you are ok being here until they make their final decision and then obviously you can stay or have to leave but does the ban still occur...we have a attorney but he is hard to get hold off and something tells me we should have gone for a more expensive one to begin with..also (sorry another Q!) if we apply and get denied to you know if that will give us future problems for applying for the i130 ..thanks again you have been great! at last we get answers from someone that knows what their talking about!!

Once you apply for the AOS - it stops the overstay clock ticking - however, any overstay you had before the AOS still remains with you - and if the AOS is denied, you usually have 30 days to leave the country. (the clock starts ticking also).

in cases similar to yours, they usually approve the 130, but deny the 485 (which means you would have to go home) and then apply at the embassy. If you have overstay 180+ days, then you would have to get a waiver for the ban.