Consequences of overstay/AOS denied

[ValerieA 350]

Lately, there has been a lot of questions regarding overstays (especially on the VWP) and what is happening there. I don't actually know what the consequences are of being denied AOS and having to leave the US. Basically, if denied AOS, can you just go back to your country, apply for CR-1/IR-1, and then have to file the waiver, same as if you didn't try AOS in the first place?

I do know on a non-VWP you go in front of a judge, and from what I was told (so, hearsay) you are likely to be granted AOS. VWP is a stickier issue.

The reason I ask is, maybe it just makes sense to take the risk and try for AOS anyway...

[JimVaPhuong 4,863]

The risk is that you could be ordered removed if you fail. When you apply for a visa abroad you'll have to apply for an I-601 waiver to overcome the overstay ban, and an I-212 waiver to overcome the deportation ban. If you leave voluntarily without being ordered removed then you'd only need the I-601 waiver.

[Bobby+Umit 161]

The reason I ask is, maybe it just makes sense to take the risk and try for AOS anyway...

I would think if people think there is a "risk" involved, they should follow the proper "non-risk" way to get a greencard.

Even with a waiver filed, that may be denied, and then your married to someone who can't enter the US for a very long time. (or even lifetime ban).

So you would have to make the decision to stay in the US, or go to the other country to wait it out. or divorce.

Which could of been avoided by the "non-risk" way.

For what it's worth, most of the cases I have seen denied based on the VWP is because they filed after the 90 days of entry, which opens up a can of worms.

Status, for all intents and purposes, is best protected at all times.

[ValerieA 350]

I would think if people think there is a "risk" involved, they should follow the proper "non-risk" way to get a greencard.

Even with a waiver filed, that may be denied, and then your married to someone who can't enter the US for a very long time. (or even lifetime ban).

So you would have to make the decision to stay in the US, or go to the other country to wait it out. or divorce.

Which could of been avoided by the "non-risk" way.

For what it's worth, most of the cases I have seen denied based on the VWP is because they filed after the 90 days of entry, which opens up a can of worms.

Status, for all intents and purposes, is best protected at all times.

Yeah, I get that. My thought process was that, if they were going to have to file a waiver for a CR-1 anyway, why not just try to adjust status? If they are refused, they will simply have to start the CR-1 process and then, uh, file a waiver. Looked like a viable option to me. Now, though, thanks to Jim, I know it is actually 2 waivers. Not sure if one is easier to get than the other, or the costs involved. All research I must do now.

[JimVaPhuong 4,863]

I suppose there's also a possibility that the IO could make an accusation against you that would become part of your record, and you would be unable to appeal it. Material misrepresentation, perhaps. The "no contest" clause means that pretty much anything they throw at you is going to stick.

A scenario where the differences are more dramatic is the case where a VWP entrant has overstayed less than 180 days. If they leave voluntarily they have no ban to overcome, and no waiver is required. If they try to adjust status and fail they would need an I-212 waiver if they are ordered removed.

There are probably more scenarios I haven't thought of. The whole idea of submitting yourself for a decision without a chance for review just scares me. It's like being charged with a crime and going to court only to find out that there is no judge, the prosecutor has the authority to convict you on his own, and you have no right to offer any defense or speak on your own behalf.

[Pegworth 2]

Canadians don't have the no contest clause. I imagine if denied they would consider your wavier options and strengths before a decision of the AOS.

[Maxximus1074 14]

Canadians don't have the no contest clause. I imagine if denied they would consider your wavier options and strengths before a decision of the AOS.

In a consultation with an immigration attorney I was told that a bona fide marriage to a US citizen does forgive you overstaying (even on vwp) or being out of status from a prior non-immigrant visa. It depends on the legality how you entered the US, if immigration processed you with an I-94, if you have lawfully entered here. Your AOS should not be any problem as long as you have a clean record and crimes to your name and the just mentioned proof of legal entry.

[Brother Hesekiel 2,236]

In a consultation with an immigration attorney I was told that a bona fide marriage to a US citizen does forgive you overstaying (even on vwp) or being out of status from a prior non-immigrant visa. It depends on the legality how you entered the US, if immigration processed you with an I-94, if you have lawfully entered here. Your AOS should not be any problem as long as you have a clean record and crimes to your name and the just mentioned proof of legal entry.

There you go. Then everything should go smoothly even for VWP participants who overstayed and file for AOS. That's coming from an immigration attorney, after all!

All that's needed is to tell the adjudicating I.O. that Maxximus' lawyer told us so, and that's it!

So much grieve for nothing. I'm just glad we could get this all sorted out so easily.

[trillium13 84]

In a consultation with an immigration attorney I was told that a bona fide marriage to a US citizen does forgive you overstaying (even on vwp) or being out of status from a prior non-immigrant visa. It depends on the legality how you entered the US, if immigration processed you with an I-94, if you have lawfully entered here. Your AOS should not be any problem as long as you have a clean record and crimes to your name and the just mentioned proof of legal entry.

There was a time that this was the case. You didn't have to worry. (much) But recent cases have caused some confusion on this topic, see the OP and similar threads.

[JimVaPhuong 4,863]

In a consultation with an immigration attorney I was told that a bona fide marriage to a US citizen does forgive you overstaying (even on vwp) or being out of status from a prior non-immigrant visa. It depends on the legality how you entered the US, if immigration processed you with an I-94, if you have lawfully entered here. Your AOS should not be any problem as long as you have a clean record and crimes to your name and the just mentioned proof of legal entry.

Your immigration attorney has not been keeping up with the recent appellate court decisions, apparently. The courts have found that a VWP who overstays is immediately deportable upon the order of an immigration officer. At any point along the way, an IO could order them deported, and nothing would be able to stop it - not an AOS petition, not an immigration judge, not the Board of Immigration Appeals, not even a federal court.