AOS on visa waiver?

[JimVaPhuong 4,863]

Hi There, Just to clarify even though im not out off the 180 days if the application is denied i can still face a ban? Its so confusing as the IO we spoke with yesterday said that the clock stops and then starts again if denied ..so i should still be able to leave the US with no ban! we have 2 days to decide whether to go ahead with the AOS so anymore thoughts would be great. Also we have been told that getting in contact with your local congressman can help, has anyone else tried this route? Thanks

Yes, the clock stops and then starts again if you're denied. If you leave before accumulating a total of 180 days then you won't be banned for the overstay, and you won't need an I-601 waiver. However, if the IO orders you deported then you'll receive a ban with the deportation - usually 10 years. An I-212 waiver is required.

It's a bigger risk for you than it would be for someone with a long overstay. Someone with a long overstay is facing a ban regardless, and their going to need one waiver if they leave without applying for AOS, and two waivers if they apply for AOS and are denied. Their risk is mitigated by the fact that, although they're submitting two waiver applications, they only need to prove hardship once. For you, if you leave without applying for AOS you face no ban. If you apply for AOS and are denied then you may face a ban for the deportation.

Your congressman can help grease the wheels and get things moving if USCIS is dragging their feet on making a decision. It's highly unlikely your congressman can influence the decision USCIS makes on your case, and there's absolutely nothing your congressman can do if you are ultimately denied. The decision is not subject to review by anyone - not even the President or the US Supreme Court.

[The Heub's 0]

Yes, the clock stops and then starts again if you're denied. If you leave before accumulating a total of 180 days then you won't be banned for the overstay, and you won't need an I-601 waiver. However, if the IO orders you deported then you'll receive a ban with the deportation - usually 10 years. An I-212 waiver is required.

It's a bigger risk for you than it would be for someone with a long overstay. Someone with a long overstay is facing a ban regardless, and their going to need one waiver if they leave without applying for AOS, and two waivers if they apply for AOS and are denied. Their risk is mitigated by the fact that, although they're submitting two waiver applications, they only need to prove hardship once. For you, if you leave without applying for AOS you face no ban. If you apply for AOS and are denied then you may face a ban for the deportation.

Your congressman can help grease the wheels and get things moving if USCIS is dragging their feet on making a decision. It's highly unlikely your congressman can influence the decision USCIS makes on your case, and there's absolutely nothing your congressman can do if you are ultimately denied. The decision is not subject to review by anyone - not even the President or the US Supreme Court.

Do you know that if i was to leave and file the CR1 whilst back in the UK, if i would then face problems due to the overstay this time? Or if there would be any chance of a poss ban or problems while going home?

[Harpa Timsah 13,258]

Hi There, Just to clarify even though im not out off the 180 days if the application is denied i can still face a ban? Its so confusing as the IO we spoke with yesterday said that the clock stops and then starts again if denied ..so i should still be able to leave the US with no ban! we have 2 days to decide whether to go ahead with the AOS so anymore thoughts would be great. Also we have been told that getting in contact with your local congressman can help, has anyone else tried this route? Thanks

A few thoughts...

I have not heard all cases my any means, but I have not heard of anyone going to their interview only to be told that they will be deported. The deportation cases I have seen is where someone has gotten "caught" BEFORE they sent in their paperwork (or they sent in their paperwork wrong)... which shows that ICE is getting more active on VWP overstays (or that someone has a nasty ex telling on them). On the other hand, with the recent memorandum relaxing deportation efforts on people that have applications pending, I would think this risk would now be less. If anyone knows of a case where the overstayed VWP applicant has been jailed at their interview, please let me know.

As to the cases we have seen where they are being put on indefinite hold, I agree that the offices must be waiting on some sort of memorandum or further clarity on the laws. However, I disagree that the memorandum is most definitely going to tighten the laws and make it worse for VWP people. Furthermore, if said memorandum is indeed more severe, I would think that people who had applications pending before the clarification took place would be granted amnesty. I disagreed with Jim in an earlier post that someone with 13 years overstay should wait until possible future memorandum, and am glad to hear him recant and suggest that that person file asap, which jives with my unvoiced opinion.

I wish the people who were put on indefinite hold would let us know if there were any updates.

So the the OP, it’s your choice. If you do it, you will have company. You will also have a super nerve-wracking few months and potentially long and further nerve-wracking separation if all does not go well. I don't envy having to make that decision.

I do not read lawyer blogs so my opinions are purely my own and therefore purely lay.

Good luck.

[trillium13 84]

A few thoughts...

I have not heard all cases my any means, but I have not heard of anyone going to their interview only to be told that they will be deported.

I have. One time. On another site. IIRC, the person said they were deported at interview due to overstay alone. It was at the very beginning of when all of this WVP/overstay stuff was starting.

I will see if I can dig it up.

[trillium13 84]

Here:

http://britishexpats.com/forum/showthread.php?t=557059&highlight=vwp+overstay+deportation

If you click on the little square next to YB1 in that first post, you can read that person's post. It's a long thread and sort of confusing, but there it is, it happened.

Edited September 17, 2010 by trillium13

[The Heub's 0]

Here:

http://britishexpats.com/forum/showthread.php?t=557059&highlight=vwp+overstay+deportation

If you click on the little square next to YB1 in that first post, you can read that person's post. It's a long thread and sort of confusing, but there it is, it happened.

Thanks so much for finding that information, I take it that person had overstayed her 180 days?! and that was why she had huge problems...im going home and now am a little nervous that i have overstayed the waiver (not the 180 days though).

[desert_fox 32]

Thanks so much for finding that information, I take it that person had overstayed her 180 days?! and that was why she had huge problems...im going home and now am a little nervous that i have overstayed the waiver (not the 180 days though).

You wont be able to use the VWP again...you abused it.

[Harpa Timsah 13,258]

You wont be able to use the VWP again...you abused it.

She knows... she is getting a CR1 visa. No hate.

[Harpa Timsah 13,258]

I have. One time. On another site. IIRC, the person said they were deported at interview due to overstay alone. It was at the very beginning of when all of this WVP/overstay stuff was starting.

I will see if I can dig it up.

Thanks so much trilium! I also want to add that I read through some of the explanations, and that my idea of "amnesty" seems wrong. One lawyer indicated that the current practice in place when applications get adjudicated is what counts. So if an application is pending, and the law changes, then it applies to all pending cases no matter their submission date. Ouch.

[JimVaPhuong 4,863]

A few thoughts...

I have not heard all cases my any means, but I have not heard of anyone going to their interview only to be told that they will be deported. The deportation cases I have seen is where someone has gotten "caught" BEFORE they sent in their paperwork (or they sent in their paperwork wrong)... which shows that ICE is getting more active on VWP overstays (or that someone has a nasty ex telling on them). On the other hand, with the recent memorandum relaxing deportation efforts on people that have applications pending, I would think this risk would now be less. If anyone knows of a case where the overstayed VWP applicant has been jailed at their interview, please let me know.

Until trillium posted that link, I'd never heard of it happening either. Then again, I'm not an immigration lawyer. For all I know, they see it all the time. What I'd read about were lawyers warning that the AOS could be denied solely based on the overstay, and the denial letter would be accompanied by a deportation order and notice to leave the US. This would happen before any interview. Presumably, they aren't routinely being arrested by ICE.

As to the cases we have seen where they are being put on indefinite hold, I agree that the offices must be waiting on some sort of memorandum or further clarity on the laws. However, I disagree that the memorandum is most definitely going to tighten the laws and make it worse for VWP people. Furthermore, if said memorandum is indeed more severe, I would think that people who had applications pending before the clarification took place would be granted amnesty. I disagreed with Jim in an earlier post that someone with 13 years overstay should wait until possible future memorandum, and am glad to hear him recant and suggest that that person file asap, which jives with my unvoiced opinion.

I thought about what I had said in that other thread, and realized that the poster might have a chance if he filed now, but would likely have no chance if he waited for a formal policy decision. In that case, my change of heart was because I do think they will definitely make it worse for VWP people with an overstay. I honestly don't think USCIS will adopt a policy that contradicts findings in several federal courts of appeal. I've never heard of them doing that before.

Court: Ok, you have the authority to do what you've been doing.

USCIS: M'kay, thanks. We won't use that authority anymore.

I do not read lawyer blogs so my opinions are purely my own and therefore purely lay.

I don't read them regularly, as in I don't subscribe to them. When somebody posts about a problem and I can't find clear answers in the INA, CFR, AFM or FAM, then I go on a google hunt. What comes up are sometimes policy memorandums, court transcripts, threads in forums, and lawyer blogs.

Interestingly, there aren't a lot of lawyers writing about this. Most lawyer's websites regurgitate the same basic info, word for word. The few that are offering opinions aren't in agreement. An AILA blog said that these court cases only confirmed that USCIS can refuse to adjudicate an AOS application and deport a VWP entrant for overstay, but that they won't normally do this - they'll process the AOS application just as they normally would. Another blog from a major immigration law firm said that USCIS field offices in some districts were now routinely rejecting every AOS application from a VWP overstay. It reminds me of the three blind men and the elephant - one feels the tail and says the elephant is like a rope, another feels the leg and says the elephant is like a tree, etc. This could be because different field offices are doing different things. The only thing that's really clear is that things have changed for VWP entrants with an overstay, and applying for AOS now has risks that it didn't have before.

[The Heub's 0]

Until trillium posted that link, I'd never heard of it happening either. Then again, I'm not an immigration lawyer. For all I know, they see it all the time. What I'd read about were lawyers warning that the AOS could be denied solely based on the overstay, and the denial letter would be accompanied by a deportation order and notice to leave the US. This would happen before any interview. Presumably, they aren't routinely being arrested by ICE.

I thought about what I had said in that other thread, and realized that the poster might have a chance if he filed now, but would likely have no chance if he waited for a formal policy decision. In that case, my change of heart was because I do think they will definitely make it worse for VWP people with an overstay. I honestly don't think USCIS will adopt a policy that contradicts findings in several federal courts of appeal. I've never heard of them doing that before.

Court: Ok, you have the authority to do what you've been doing.

USCIS: M'kay, thanks. We won't use that authority anymore.

Does anyone know if there could be or has been any problems leaving the country volunterialy before the 180 days !! Would it be a factor that i left myself. Also i would not need to use the visa waiver again, i want to apply for a CR1 in the UK so i can be with my husband permamently.

I don't read them regularly, as in I don't subscribe to them. When somebody posts about a problem and I can't find clear answers in the INA, CFR, AFM or FAM, then I go on a google hunt. What comes up are sometimes policy memorandums, court transcripts, threads in forums, and lawyer blogs.

Interestingly, there aren't a lot of lawyers writing about this. Most lawyer's websites regurgitate the same basic info, word for word. The few that are offering opinions aren't in agreement. An AILA blog said that these court cases only confirmed that USCIS can refuse to adjudicate an AOS application and deport a VWP entrant for overstay, but that they won't normally do this - they'll process the AOS application just as they normally would. Another blog from a major immigration law firm said that USCIS field offices in some districts were now routinely rejecting every AOS application from a VWP overstay. It reminds me of the three blind men and the elephant - one feels the tail and says the elephant is like a rope, another feels the leg and says the elephant is like a tree, etc. This could be because different field offices are doing different things. The only thing that's really clear is that things have changed for VWP entrants with an overstay, and applying for AOS now has risks that it didn't have before.

Does anyone know if there could be or has been any problems leaving the country volunterialy before the 180 days !! Would it be a factor that i left myself. Also i would not need to use the visa waiver again, i want to apply for a CR1 in the UK so i can be with my husband permamently.

[JimVaPhuong 4,863]

Does anyone know if there could be or has been any problems leaving the country volunterialy before the 180 days !! Would it be a factor that i left myself. Also i would not need to use the visa waiver again, i want to apply for a CR1 in the UK so i can be with my husband permamently.

In all likelihood, you couldn't use the visa waiver program again even if you wanted to. You've violated the terms of the program, and that's enough to revoke your privileges. In the future, they'd make you get a visa before coming to the US.

If you leave with less than 180 days of overstay then there should be no problems. There would be no ban for the overstay, and there would be no ban for being deported. You just wouldn't be able to used a privileged program like the VWP again. They make ask about your overstay at the CR1 interview, but they won't deny your visa because of it. It does not make you inadmissible.

[The Heub's 0]

In all likelihood, you couldn't use the visa waiver program again even if you wanted to. You've violated the terms of the program, and that's enough to revoke your privileges. In the future, they'd make you get a visa before coming to the US.

If you leave with less than 180 days of overstay then there should be no problems. There would be no ban for the overstay, and there would be no ban for being deported. You just wouldn't be able to used a privileged program like the VWP again. They make ask about your overstay at the CR1 interview, but they won't deny your visa because of it. It does not make you inadmissible.

Thanks for your help, this is the route we will take and im sure ill be back on this forum when waiting for the CR1.

[JAYKE 0]

If you adjust status from VWP (as opposed to tourist visa), and are denied, yes, you face a ban, as you will be in the system as DEPORTED (tourist visa gives you notice of hearing, etc., and therefore time to leave on your own accord without DEPORTATION). Deportation carries MINIMUM ten year ban.

[Lisa011 6]

I'm going thru the same process right now

came to the U.S when 12 years old on visa waiver and have stayed here ever since. Current age 21

I did not not i became illegal until i was 17 years old,

Ive been with my husband for 4 years recently got married and started filling out papers for permanent residency

Im very nervous and scared that I will be denied and have to go back.

I thought that if you overstay a visa waiver the only way for forgiveness is if you marry a u.s citizen.