VWP AOS NIGHTMARE UNFOLDING

[rosie's baby 5]

Hello, I am a new poster although I have followed people's stories with interest for the last year or more. I am watching the unfolding scenario on VWP AOS adjusters with increasing horror. My daughter and I have been here two years out of status - the story which led us to that unfortunate situation is a long one, and basically a catalogue of naive decisions and bad advice. I know there is no hope for myself, but my daughter, (who has been here since she was 14, at first in status but over the last two years without), is in a serious relationship and they are talking about getting married at the end of the year. I had hoped that she, at least, would be able to redeem her situation by marriage, but now it is looking not so. I dont know how to tell her that all her hopes and dreams for the future are dashed, She is in every respect an American, having been through the school system etc. I could jump under a train right now and I simply dont know what to tell her...

[NigeriaorBust 4,087]

If she isn't 18 yet she doesn't have any overstay against her. She could leave and have a clear record.

[Harpa Timsah 13,258]

Some VWP people lately have been approved. Others have been put on indefinite hold. Some people that have had troubles have been picked up as "newsworthy" by the NYTimes and other media outlets (about the disgrace and unfairness of it all etc). I wouldn't panic just yet. Marriage to a US citizen is a huge postive factor.

Edited September 15, 2010 by Harpa Timsah

[Brother Hesekiel 2,236]

Your daughter is in every aspect an American? Please, don't say that; truth is, she is as far away from being an American as it gets.

That being out of the way, the US Government understands that children don't really have a choice when parents drag them along. Therefore, they have a grace period of 180 days (6 months for simplification purposes) to do "the right thing" once they become an adult, by leaving the US of A on their own account without any adverse implications attached to it.

So if your daughter is under the age of 18-1/2 (which still is way too young to get married IMHO), she should leave the US as soon as possible and her soon to be fiance could petition for a K-1 visa for her. Once issued, she enters the US legally, gets married within the allotted 90-day time frame and gets her Green Card. If everything goes well, she becomes a US citizen at about age 22-1/2 and petitions for you, her dad, as an immediate relative.

Unless something weird happens in regard to the US immigration politics until then, you have a real shot to get your Green Card as well.

[rosie's baby 5]

Your daughter is in every aspect an American? Please, don't say that; truth is, she is as far away from being an American as it gets.

That being out of the way, the US Government understands that children don't really have a choice when parents drag them along. Therefore, they have a grace period of 180 days (6 months for simplification purposes) to do "the right thing" once they become an adult, by leaving the US of A on their own account without any adverse implications attached to it.

So if your daughter is under the age of 18-1/2 (which still is way too young to get married IMHO), she should leave the US as soon as possible and her soon to be fiance could petition for a K-1 visa for her. Once issued, she enters the US legally, gets married within the allotted 90-day time frame and gets her Green Card. If everything goes well, she becomes a US citizen at about age 22-1/2 and petitions for you, her dad, as an immediate relative.

Unless something weird happens in regard to the US immigration politics until then, you have a real shot to get your Green Card as well.

[rosie's baby 5]

Thank you for your replies. Bob, you are right, she is not of course in every way an American, that was a bit stupid of me to say that, but I meant to suggest that 6 years of living the American life when you start fairly young, the indoctrination is pretty thorough. She is 19 1/2, so unfortunately the 18 threshold has been breeched.

[trillium13 84]

It is still possible that she could be approved. There is no clear consensus yet on this subject, as far as I know. From what I've read it seems to pretty much depend on where you live and the whims of USCIS. At this point, I don't think she really has any other option than to try. She will need real solid proof of bona fide marriage if she goes for it.

[JimVaPhuong 4,863]

It is still possible that she could be approved. There is no clear consensus yet on this subject, as far as I know. From what I've read it seems to pretty much depend on where you live and the whims of USCIS. At this point, I don't think she really has any other option than to try. She will need real solid proof of bona fide marriage if she goes for it.

True, there is no consensus. Five circuit courts of appeal is not even a majority of the federal appeals courts, but it's enough to say that there is a pretty strong wind blowing. The number of people who've had their AOS cases put on hold lately, presumably because they overstayed a VWP entry, leads me to believe (strongly) that a formal policy ruling is forthcoming from the director of USCIS. There may be a possibility that her AOS will be approved if she can get it filed before that formal policy ruling is handed down. Nobody can guarantee that, though. The risk if it's denied is that, in addition to facing a 10 year ban for the overstay, she'll also be facing a ban for the deportation. Instead of just an I-601 waiver, she'll also need an I-212 waiver. If they decide to pile any serious charges on their decision (what the heck - she can't appeal any decision they make) then the resultant ban from the deportation could be unwaiverable.

There is a real possibility that filing for AOS might only make her situation worse. The only thing I can suggest is that if they DO decide to file for the AOS then they should do it soon, before a new policy memorandum is issued.

I suggested to another poster the other day that he should wait for the new policy to be issued, since he already had 13 years of overstay. In retrospect, that probably wasn't good advice. The more I think about this, the more certain I am that any new policy is going to mean automatic denial and deportation for VWP overstays.

[Bobby+Umit 161]

True, there is no consensus. Five circuit courts of appeal is not even a majority of the federal appeals courts, but it's enough to say that there is a pretty strong wind blowing. The number of people who've had their AOS cases put on hold lately, presumably because they overstayed a VWP entry, leads me to believe (strongly) that a formal policy ruling is forthcoming from the director of USCIS. There may be a possibility that her AOS will be approved if she can get it filed before that formal policy ruling is handed down. Nobody can guarantee that, though. The risk if it's denied is that, in addition to facing a 10 year ban for the overstay, she'll also be facing a ban for the deportation. Instead of just an I-601 waiver, she'll also need an I-212 waiver. If they decide to pile any serious charges on their decision (what the heck - she can't appeal any decision they make) then the resultant ban from the deportation could be unwaiverable.

There is a real possibility that filing for AOS might only make her situation worse. The only thing I can suggest is that if they DO decide to file for the AOS then they should do it soon, before a new policy memorandum is issued.

I suggested to another poster the other day that he should wait for the new policy to be issued, since he already had 13 years of overstay. In retrospect, that probably wasn't good advice. The more I think about this, the more certain I am that any new policy is going to mean automatic denial and deportation for VWP overstays.

I agree with Jim - from all the things I have come across on this, it seems USCIS really wants to close the VWP to AOS loophole that more and more people are taking advantage of.

That "catchall" clause they have where VWP people give up the right to appeal their case gives them the teeth to deport them.

Sooner than later is always the best thing.