Get the feeling we are in trouble

[melandrob 0]

hi everyone,

Hope to get your views on our situation. overstay almost 2 years

We have read many of the posts on these forums and are still lost.

My husband (boyfriend at the time) arrived here in Sep 08 on the vwp program from the uk! We are in south carolina , but he flew into La , we were supposed to meet there and spend the next 3 months traveling the west where i am originally from. This did not happen due to urgent family problems my side ( my daddy was diagnosed with terminal cancer already very ill ) Rob then decided to come to South Carolina.

Just before he was due to leave, my daddy took a turn for the worse. He stayed, and helped my family with my fathers illness, driving to doctors apts, helping my mom with chores ( she is disabled and unable to drive). A couple of months later we decided to get married, unbelievably daddy held on until January this year. Just missing the wedding

we now realise , this was probably the stupidest thing we possibly could have done!

He never wanted to stay, had no interest in becoming a citizen , i think he would just as soon go home and we could start a life over there... I caant do that , my mom takes sooooo much of my time and cannot be alone... he will be were ever i am.

so i guess my question after that horribly composed short version of our story is....

do we try to adjust his status? or just keep doing what we are doing until the inevitable happens and he is caught by ins? ( we are not rich , and he has had to work! i know BAD MOVE , mostly he bought and sold on ebay), although he assures me that he is happy as long as he is with me , im not buying it anymore! He is starting to get really home sick, but wont complain or talk about it.

any advice?

[SisJ 13]

Sorry abt your dad. In my opinion you can apply to adjust his status. There have been many ppl who overstayed their Visa's ended up getting married and adjusting their status. His overstay will be "forgiven" and he'll get his GC. Not doing anything about his status and just leaving things be isn't the best choice. Since you're married and it was in good faith, doing an AOS shouldn't be much of a hassle if you have the evidence to prove your relationship is legit. All the best!

[melandrob 0]

Thankyou we both miss him soo much , he was a wonderfull man,

i have read that due to recent cases ( not sure of the specific case) , an aos will not be allowed. Is this true?

After everything thats gone on the last couple of years i dont think i could stand him being deported or detained! Anyone out there succesfully gone this route recently ?

[SisJ 13]

Well unless he entered the country illegally ( without inspection) or entered with a tourist visa or VWP with the sole intention of getting married and filing for AOS, which is considered fraud, there's no reason why he couldn't file for AOS since he's married to an American citizen.If you're worried about his two year overstay, don't be. there are ppl who have stayed longer and are now lawfully married to USC who have successfully applied and have approved AOS's.

[melandrob 0]

Well unless he entered the country illegally ( without inspection) or entered with a tourist visa or VWP with the sole intention of getting married and filing for AOS, which is considered fraud, there's no reason why he couldn't file for AOS since he's married to an American citizen.If you're worried about his two year overstay, don't be. there are ppl who have stayed longer and are now lawfully married to USC who have successfully applied and have approved AOS's.

he did enter on the VWP ( this is why were are woried), definatly no intention of getting married or staying ( he has visted the States well over 30 times before). I forgot to mention he was married to a USC for four years and only recently divorced about a year before we met. They didnt live here. I dont think he EVER had intentions of getting married again. Just a testement of how WONDERFUL i am ! LOL

is the fact he came on the VWP going to exclude him from aos?

LATE EDIT: sorry neglected to read! SOLE PURPOSE oops

Edited October 23, 2010 by melandrob

[trillium13 84]

There have been many threads on this subject recently. Overstay on the VWP IS becoming an issue, where it was not before. I'd recommend doing a search here of the threads on this topic.

I'm sure that someone will come along who can give you more details. I do know however that AOS from VWP with overstay is not nearly as simple as it once was.

I'd highly recommend you speak with an immigration attorney.

[Myopia 93]

he did enter on the VWP ( this is why were are woried), definatly no intention of getting married or staying ( he has visted the States well over 30 times before). I forgot to mention he was married to a USC for four years and only recently divorced about a year before we met. They didnt live here. I dont think he EVER had intentions of getting married again. Just a testement of how WONDERFUL i am ! LOL

is the fact he came on the VWP going to exclude him from aos?

LATE EDIT: sorry neglected to read! SOLE PURPOSE oops

Depending on where you are and where you file there seems to be some discrepancy with how the application to adjust status is dealt with.

Some people have successfully been able to adjust.

Some have been denied and Some have been told that their application will be on hold.

Honestly the best bet for you is to try to adjust. The reason I say that is your husband has already overstayed on the VWP. If he leaves he is goin to face a 10 year ban. You will be able to file for him from the UK but you will have to get a waiver for that. The waiver is not easily got,

If his AOL is denied, he will still have to leave and have the same ban,

Its about $1300 to file within the US. I say go for it.

I dont believe that the length of the overstay matters as much as the policy of the office that will adjust(or not) his status.

Honestly what more can you do?

I wish you the best.

Edited October 23, 2010 by Myopia

[JimVaPhuong 4,863]

I don't know for certain whether South Carolina is in one of the federal appeals court districts which are affected by the recent decisions. If it is, the AOS will probably be denied, and your husband will be summarily ordered deported. There will be no review or appeal of this order. He waived any right to review or appeal when he entered on the VWP.

Some USCIS field offices have been holding their breath, seemingly waiting for a uniform policy decision from the director's office. If South Carolina field offices are in this group then the AOS application will be placed on hold until a formal policy decision is issued. In all likelihood, the formal policy decision will agree with what five district courts have already said - a VWP overstay is immediately deportable. In that event, the AOS will be denied, and a deportation order issued.

I haven't heard about any recent VWP overstays who were approved, but I wouldn't be surprised if there have been some. You might get lucky and be assigned to a field office that still actually adjudicates AOS petitions from VWP overstays.

An educated local immigration lawyer should be able to tell you what's been going on at USCIS field offices where you live. If your local field office is adjudicating AOS petitions from VWP overstays then you'll want to get your petition in quickly, before they change their policy.

Anyway, if he leaves voluntarily he faces a 10 year ban for his overstay. If he ends up being deported then he will also be slapped with a 10 year ban for the deportation. Either ban can be overcome with a hardship waiver; I-601 for the overstay ban and I-212 for the deportation ban. If he gets both bans then he'll need both waivers to return, but if you can satisfactorily prove hardship for one then it automatically applies to the other. You only need to prove the hardship once.

Go consult with a lawyer.

[Ning 619]

I don't know for certain whether South Carolina is in one of the federal appeals court districts which are affected by the recent decisions. If it is, the AOS will probably be denied, and your husband will be summarily ordered deported. There will be no review or appeal of this order. He waived any right to review or appeal when he entered on the VWP.

Some USCIS field offices have been holding their breath, seemingly waiting for a uniform policy decision from the director's office. If South Carolina field offices are in this group then the AOS application will be placed on hold until a formal policy decision is issued. In all likelihood, the formal policy decision will agree with what five district courts have already said - a VWP overstay is immediately deportable. In that event, the AOS will be denied, and a deportation order issued.

I haven't heard about any recent VWP overstays who were approved, but I wouldn't be surprised if there have been some. You might get lucky and be assigned to a field office that still actually adjudicates AOS petitions from VWP overstays.

An educated local immigration lawyer should be able to tell you what's been going on at USCIS field offices where you live. If your local field office is adjudicating AOS petitions from VWP overstays then you'll want to get your petition in quickly, before they change their policy.

Anyway, if he leaves voluntarily he faces a 10 year ban for his overstay. If he ends up being deported then he will also be slapped with a 10 year ban for the deportation. Either ban can be overcome with a hardship waiver; I-601 for the overstay ban and I-212 for the deportation ban. If he gets both bans then he'll need both waivers to return, but if you can satisfactorily prove hardship for one then it automatically applies to the other. You only need to prove the hardship once.

Go consult with a lawyer.

Jims' advice is sound & should be followed to have any chance of avoiding the most seriouse outcome. Additionaly the question will come up about his income & related taxes I would think. Good idea to ask the lawyer how to take care of that potential problem.

[Kevin&Jessica 3]

i myself was a 5yr overstay i entered in on a vwp.. i now have my greencard (granted i hired a laywer and he helped us) i have seen some talk of the vwp and people overstaying being an issue however my own exp (3 marrieges and 5yrs overstayed) i managed to get my greencard so yes file the 1485. just one point not sure it was made but take into account u need to be making 1.5 times the poverty line if u dont u will need a sponsor

[NigeriaorBust 4,087]

VWP used to be treated like overstaying from a visitors visa but things have changed and it is hard to 'just adjust status' anymore. Which evens things out with those of from non vwp locations. However it does increase your chanced for failure and having to 'pay for your crimes' of ignoring immigration law. You need to decide to either roll the dice and possibly face 2 bans/waiver or return to the UK and face one ban/waiver. Working illegally is a separate issue and if he DIDN'T pay taxes on his earning your quest to 'just adjust status' is probably not going to have a happy ending because not only did he ignore immigration law but he ignored tax laws also and is showing a basic disrespect for US laws in general. Lets hope is isn't driving without a license and without uninsured also.

[Brother Hesekiel 2,236]

Here is what I would do if I were in your shoes:

Plan A.

File for AOS ASAP. Prepare to be denied and have all things sorted for Plan B to take in effect. If the denial does not result in a deportation, have hubby leave the US voluntarily soon after to avoid the dreaded I-212. Keep all proof (such as bording passes) for later.

Plan B.

Move to the U.K. with your husband.

Tell Mommy she's a big girl now, all grown up.

In 10 years' time, you file for DCF and come back (if you like), and hubby enters the US as permanent resident.

[Sam and Fen 41]

Get a Good Lawyer and you should be able to adjust status.

A customer of mine married a lady from a Eqauador who had overstayed her tourist visa by years and they were able to adjust status here in the US.

[TimJay 0]

My ex-wife was here on a tourist visa which had expired for more than two years. I applied to adjust her status and it was fine. Our country just doesn't have the resourced to track down and try to deport people for overstaying visas. Good luck!

[Harpa Timsah 13,258]

Tourist visa is NOT VWP in this case, so please don't confuse her. They are becoming very different.

OP: Follow Jim's advice. I'd try for the AOS and see what happens... there is no hard "law" that it has to be denied, just precedent cases that changes the emphasis of situations. ( this is all very recent as of early 2010 so 2009 approvals don't mean any guarantees here). If he gets denied, then you can file hardship waivers... which you would have to do anyway if he left now. Yeah, there will be one more waiver to overcome if he gets denied AOS, but I think you have good grounds for approval if it gets that far. Here's to hoping your AOS goes well.