Overstayed and AOS

[waiver1997 0]

I entered US on a visa waiver in 1997 with the intention of moving in with my boyfriend and adjusting

to a student visa. I was young, naive and though everything would just work itself out magically.

Long story short, I ended up overstaying.

In 2001 I submited a labor certification application under 245i and was approved. Due to being wrongly adviced and misrepresented by my lawyer, I decided not to continue to file the I-485.

In 2003 I married my boyfriend, a permanent resident. Now, 2010, my husband is eligable to apply for US citizenship. Once he becomes a citizen, I was hoping to adjust my status and obtain a greencard. We understand due to recent developments in visa waiver adjustment cases, I may be unable to or have difficulties adjusting in New Jersey or any other circuit.

What is your advice?

[JimVaPhuong 4,863]

13 years of overstay with a VWP entry? Well, there have been others with long overstays and a VWP entry who have managed to succeed. There have also been others who have been denied for a lot less. You're right that the trend lately has been to deny and immediately begin removal proceedings. Unfortunately, you can't appeal any decision because of the VWP entry.

My honest opinion is that your chances aren't very good.

[BellaRose 7]

Pray for immigration reform. I know that was a bad joke. I just feel for you, my husband and I are in the same boat with him overstaying a prior conditional residency. Your advantage is I think is that you are still in the country, my husband left the country. I'm sure it's possible with a lot of work and patience. But cases like ours needs a seriously good immiration attorney that has experience in waivers, extreme hardship...etc. You shouldn't just file and with the flow...your actions need to be thoroughly planned with the help of a lawyer.

I didn't get a lawyer in the begining and now I haven't seen my husband in two years.

[milimelo 4,541]

Moving to AOS from tourist, student and work visa.

[Brother Hesekiel 2,236]

While I usually agree with Jim, as he's one of the most knowledgeable people on this board, here I disagree with his assessment. As a WVP participant, you are indeed at the I.O.'s mercy, but unless you are originally from a high fraud country (which can't be the case in light of the VWP), I feel your chances to get an AOS petition approved are actually very good.

[JimVaPhuong 4,863]

While I usually agree with Jim, as he's one of the most knowledgeable people on this board, here I disagree with his assessment. As a WVP participant, you are indeed at the I.O.'s mercy, but unless you are originally from a high fraud country (which can't be the case in light of the VWP), I feel your chances to get an AOS petition approved are actually very good.

Things have changed, Bob. It used to be that an overstay was just as irrelevant for a VWP entrant as it was for someone adjusting from any other kind of visa if they were the immediate relative of a US citizen. Thanks to some fairly recent decisions in at least three federal appeals courts, that's no longer the case. One of the key outcomes of these court rulings is that a VWP entrant is considered immediately deportable when they overstay because of the "no contest" waiver they agreed to. According to several immigration attorneys, several USCIS field offices have been denying practically every VWP entrant with an overstay, and immediately starting removal proceedings. Some other USCIS field offices have been putting AOS cases on indefinite hold when the applicant was a VWP entrant with an overstay, which leads to the assumption that there may be guidance coming from the director's office regarding a uniform way to handle these cases. Given the court rulings, a uniform policy is probably going to mean an automatic denial for most if not all VWP entrants with an overstay.

A year ago, I would have agreed completely with your assessment. Today, I think it's a whole new ball game. The overstay has suddenly become a very significant factor.

[waiver1997 0]

Things have changed, Bob. It used to be that an overstay was just as irrelevant for a VWP entrant as it was for someone adjusting from any other kind of visa if they were the immediate relative of a US citizen. Thanks to some fairly recent decisions in at least three federal appeals courts, that's no longer the case. One of the key outcomes of these court rulings is that a VWP entrant is considered immediately deportable when they overstay because of the "no contest" waiver they agreed to. According to several immigration attorneys, several USCIS field offices have been denying practically every VWP entrant with an overstay, and immediately starting removal proceedings. Some other USCIS field offices have been putting AOS cases on indefinite hold when the applicant was a VWP entrant with an overstay, which leads to the assumption that there may be guidance coming from the director's office regarding a uniform way to handle these cases. Given the court rulings, a uniform policy is probably going to mean an automatic denial for most if not all VWP entrants with an overstay.

A year ago, I would have agreed completely with your assessment. Today, I think it's a whole new ball game. The overstay has suddenly become a very significant factor.

Thank you for your insight. I understand certain circuits may be more lenient than others at this point in time.

New York I am told is still allowing adjustments in these type of cases. I was considering moving back to New York

for the purpose of filing there. Does anybody have an opinion about this?

Also, do you believe I can use the amnesty of 2000 to my advantage in this case? As far as I remember this also

applied to people violating their visa waiver.

[juliava 80]

Thank you for your insight. I understand certain circuits may be more lenient than others at this point in time.

New York I am told is still allowing adjustments in these type of cases. I was considering moving back to New York

for the purpose of filing there. Does anybody have an opinion about this?

Also, do you believe I can use the amnesty of 2000 to my advantage in this case? As far as I remember this also

applied to people violating their visa waiver.

Unfortuntely at this point I don't think anybody on this forum can guarantee that if you move to NY your AOS would be successfull. As other users posted above, these type of AOS applications are currently on serious shaking grounds.

The amnesty of 2000 is just history, so NO, this can not be applied to anybody's case anymore.

[JimVaPhuong 4,863]

Thank you for your insight. I understand certain circuits may be more lenient than others at this point in time.

New York I am told is still allowing adjustments in these type of cases. I was considering moving back to New York

for the purpose of filing there. Does anybody have an opinion about this?

Also, do you believe I can use the amnesty of 2000 to my advantage in this case? As far as I remember this also

applied to people violating their visa waiver.

We can only guess, at this point, whether filing in a different district will make any difference. There have been people within the past month who've posted here and said their AOS application has been put on hold indefinitely, which leads me to believe that a decision from the director's office may be imminent. If you file now then one of three things is going to happen:

1. Your application will be denied because of the overstay, and you'll be placed in removal.

2. Your application will be placed on hold pending a policy directive.

3. Your application will be processed normally.

Given that you've already got 13 years of overstay, I don't think it will hurt to wait a little longer and see if a formal policy is issued.

I really don't know if the 245(i) would help you now. Yes, the overstay can be forgiven based on a petition filed before April, 2001. The problem is that the policy has changed for VWP entrants. According to these court decisions, you were immediately deportable on the first day you overstayed. "Immediately deportable" is the same as an immigration judge issuing a deportation order. They could simply disregard your 245(i) petition, deny your AOS, and place you in removal, and you would not be able to appeal the decision. Even if an immigration court judge or appellate court judge agreed with you, they wouldn't be able to claim jurisdiction over USCIS because of the "no contest" clause. You're basically at the mercy of the immigration officer. In hindsight, you really should have adjusted status when your 245(i) petition was approved. The federal courts may have now burned that bridge behind you.

Honestly, I think you should wait a bit and see if a formal policy directive is issued by USCIS. Whatever the policy ends up being, you should consult with an immigration lawyer before you submit an application.

[nelifi 0]

The overstay has suddenly become a very significant factor.

Does it include overstay of tourist/student visas or only VWP?

[JimVaPhuong 4,863]

Does it include overstay of tourist/student visas or only VWP?

Only VWP. People who enter with visas do not have to agree to a "no contest" clause.