VWP overstay between 180 and 365 days - options? CR1

[edgini 0]

Howdy,

it seems the US immigration system has shut a lot of doors to practically every would be immigrant. I am from France/UK.

I originally came to Florida in July 2009 to kill 2 months over the summer before going to Australia, however i ended up loving it and renewed my VWP by making a weekend trip to colombia, after a further 3 months i did the same thing but after taking some advice from an attorney I applied for a B2 visa whilst out of the country as this is for a longer term visa(6 months at a time) and can be adjusted to different type of visa if i wanted to remain longer.

unfortunately my B2 visa request was immediately denied at the embassy, the reason i was given was that i did not need a B2 visa as i had a Visa Waiver passport (catch 22!) and of course there is no way to adjust the VWP, (not even marriage to a usc anymore!) so US Immigration really have us by the balls here.

This caused me all sorts of problems coming back in, i was held in secondary as i had stated on my i-94w that i had been denied a visa, plus this was my 3rd re-entry on VWP in 10 months, luckily after having my attorney on standby he managed to convince them to let me thru.

Following this I nearly did get married in October 2010 to one girl here (which it turns out would not have qualified me for a GC anyway), we got as far as getting a marriage licence... i subsequently discovered that she had ulterior motives for wanting to get married and never went thru with the marriage.

However at the time i thought it would happen and furthermore it would resolve my status here, which led me to overstay by more than 180 Days, now i have until March 2011 before i reach >365days, I need to decide whether to leave and probably incur a 3 year ban or remain here ilegally and risk deportation +10 year ban or hope for immigration reform, (at least for marriage by VWP).

One option i am seriously considering is leaving the US, but i need to know if there is any way i can get around the 3 year ban (other than the hardship waiver which i dont think we would qualify for), because this is the deal breaker, I could leave the US and get married to my current girlfriend then apply for a CR1, and we could live happily ever after, but.....

1) do i have to wait for the 3 year ban to expire before i can even apply for CR1? (as the process will probably take a year, that would be 4 years in total)

2) Would the investor visa be an easier route, could i get around the 3 year ban with this? I am prepared to invest up to $1million in a qualifying business over here.

3) Is there anyway i can come to an arrangement with ICE/CBP to drop the 3 year ban before i leave the US?

I ask this as i read this posting by VJ member "brokenfamily" which suggests that if i were to get a deportation order but leave voluntarily before being deported the 3 year ban would not apply, however Im not sure if they issue deportation orders on VWP as oppose to detain and immediately deport? this is what i read >> H. Unlawful Presence - INA 212(a)(9)(B) and ©

1. Inadmissibility Provisions Based on Unlawful Presence

Inadmissible under

INA 212(a)(9)(B)(i)(I)

If an alien has resided unlawfully in the U.S. for an un interrupted

period of more than 180 days but less than 1 year and then voluntarily

departed, prior to the initiation of removal proceedings, he or she is

inadmissible to the U.S. for a period of 3 years from the date of

departure.

NOTE: If removal proceedings are initiated before the alien has been

in the U.S. for more than a year, and the alien leaves after initiation of

the removal proceedings pursuant to a grant of voluntary departure, but

before the alien has been unlawfully present for more than one year, the

alien is not subject to the three year bar. This is based on language in

the statute itself, which provides that someone with more than 180 days

continuous unlawful presence, but not more than a year of unlawful

presence is inadmissible only if he or she leaves before a removal

proceeding has been initiated. Thus, pursuant to statute, if the alien

leaves after removal proceedings are initiated (e.g., the NTA is filed

with EOIR and served on the applicant), INA 212(a)(6)(9)(B)(i)(I) no

longer applies. However, in this case, there is a chance that the alien is

inadmissible for failure to having attended a removal proceeding (INA

April 28, 2009

I have no criminal record, can support myself and any future family comfortably, am perfectly healthy and would love to be a part of this country and settle here, but i fear that at this rate it is just not worth the Hassle!.... im exploring my options before march. fingers crossed.

Thank you in advance for any and all helpful advice!

[JimVaPhuong 4,863]

The intention of the language in INA 212(a)(9)(B) is that you are barred only for 3 years if your overstay is between 180 days and 1 year, and if you leave voluntarily before removal proceedings have begun. It was never meant to imply that you can avoid the bar if removal proceedings are started while you're within the 6 month window, and then skip out on the removal proceedings, and I've never heard of USCIS interpreting it this way.

By the way, failure to appear for a removal hearing results in a FIVE year bar. Out of the frying pan and into the fire, so to speak.

If you really wanted to test that theory, you'd have to find a way to get USCIS to start removal proceedings while you're inside that six month window. Here's the problem - you entered using the VWP. If USCIS decides to remove you then there will BE NO REMOVAL PROCEEDINGS. The "no contest" clause means you are immediately deportable upon the order of any immigration officer. This is effectively the same as if an immigration judge had already ordered your deportation. The decision of the immigration officer is not subject to review or appeal. Instead of USCIS starting removal proceedings, you would be taken into custody and immediately deported. You would never get a hearing in front of an immigration judge.

You've earned the 3 year bar. An I-601 hardship waiver is the only way around it. If you play Russian roulette with deportation then you'll get a 10 year ban, and need an I-212 waiver as well.

The 3 year bar makes you inadmissible. You can't receive any sort of visa during the bar unless you receive a waiver. An investors visa would be no different.

You can't get a waiver unless you're an immediate relative of a US citizen. You apparently are not, but if you were then it might be possible to get the bar lifted while you're still in the US. An I-601 waiver request can be filed with an adjustment of status petition. Most in-country I-601's are denied.

[edgini 0]

Yes that is pretty much what I thought, thank you for your advice.

They really have us by the balls on the VWP, there is virtually nothing we can do..... To the detriment of the US of A.

[edgini 0]

Ps, has there been any update on the new USCIS directive about AOS by marriage for VWP? Are cases still on indefinite hold? What's the latest memo.......

[JimVaPhuong 4,863]

Yes that is pretty much what I thought, thank you for your advice.

They really have us by the balls on the VWP, there is virtually nothing we can do..... To the detriment of the US of A.

From what you say, you wouldn't have any basis to adjust status even if you'd entered with a visa, but let's ignore that for a moment.

US immigration law establishes a process by which people can immigrate to the United States. For some types of visas, that process begins with a qualifying petition to USCIS. For all types of visas, that process culminates with an application and interview at a US consulate. One of the consulate's primary jobs is screening intending immigrants for things that would make them inadmissible to the US - health related grounds, commission of certain types of crimes, prior immigration law violations, etc. The level of screening is far beyond what most non-immigrants face because a non-immigrant isn't supposed to remain in the United States indefinitely.

Immigration law recognizes that some qualified intending immigrants may already be in the United States, and it would be needlessly bureaucratic to require them to leave the US and apply for an immigrant visa at US consulate abroad. The law provides an exception in these cases, and allows USCIS to screen them for immigration and adjust their status to that of immigrant. The law is specific that this was not meant as an alternative to the immigrant visa process, which is why most non-immigrant visas do not allow for "immigrant intent" at the time of entry as a non-immigrant. If USCIS suspects that an intending immigrant has used a non-immigrant visa with the intention of short-cutting the immigrant visa process then they'll scrutinize the case for evidence of this, and further evidence that they fraudulently misrepresented their intentions. There was a time when INS (the predecessor of USCIS) would routinely deny AOS if they suspected preconceived intent to immigrate. That ended with some precedent setting BIA cases, so they now also require evidence the intending immigrant intentionally misrepresented their intent.

USCIS has been cracking down on VWP entrants who attempt to adjust status because they view this as more than just an attempt to short-cut the immigrant visa process, but an attempt to skip the visa process entirely. Not only does this go against the intended purpose of the VWP, it's also grossly unfair to people who are from countries that are not included in the VWP.

I have limited sympathy for your situation. You used the VWP, which is a privilege most people in the world do not have. You already had two VWP entries in a short span of time when you applied for the B2 visa. I'm sure the consular officer was wondering why someone who is eligible to use the VWP would want to go to the trouble and expense of getting a B2 visa. There can be only two reasons; you had a legitimate need to stay more than 90 days and less than 180 days (which would be valid), or you wanted to enter the US without the restrictions imposed by the VWP, such as the inability to adjust status if you overstay (which would NOT be valid). I'm sure you tried to make a case why you would need to stay more than the 90 days allowed under the VWP, and the consular officer obviously didn't buy it. CBP suspected something was up - it was your third VWP entry in a short time - so they referred you to secondary inspection. Since then, you've attempted to do exactly what both the consular officer and CBP suspected you might try to do - stay beyond the time authorized when you entered, and try to adjust status and get a green card. Your actions so far have shown a disregard for US immigration law. I'm really not sure why you think the US would benefit by having you here.

Ps, has there been any update on the new USCIS directive about AOS by marriage for VWP? Are cases still on indefinite hold? What's the latest memo.......

There is no new update yet. So far, five of the thirteen US Circuit Courts of Appeal have ruled that a VWP entrant is immediately deportable if they overstay, and that USCIS can deny their AOS without adjudicating it. There is pretty good evidence that USCIS field offices in those districts have been denying AOS for VWP overstays and ordering them deported. I know for certain that this is going on in the 9th circuit, which includes California. USCIS field offices in the other circuit court districts have either been adjudicating AOS petitions from VWP overstays, or holding them pending a uniform policy from the director. My understanding is that there are at least two cases pending in other circuit courts, and the director might be waiting for a decision from those courts, or perhaps waiting for the US Supreme Court to weigh in.

Talk to your attorney and ask him what the USCIS field offices have been doing in your circuit court district.

[edgini 0]

Well if you are seeking clarification, the basis for adjusting status would be marriage to my girlfriend, However I am not about to get married to someone if we are then going to be torn apart by an over zealous ICE, for both our sakes..... and no, Neither am i going to ask her to drop her life here and come to Europe with me, like i said in my original posting, if legalising my status here is too much hassle I will abandon the US.... there are plenty of other places in the world where i would be happy living and already have permission/freedom to go.

I had no pre-meditated intent to immigrate to the US, in fact I didnt even think i would like it very much, until i spent some time here....... at that time AOS through marriage even on VWP was not only permitted but was a very well established norm....

As for benefitting the US, many people like me, who have no criminal record, are healthy, want to start a family, have money to spend and invest and create jobs (esp in Florida with unemployment at over 11%) would contribute enormously to this country, Had i known the ridiculous red tape involved in this process i would not have even begun on this journey, and thats why they are shooting themselves in the foot, but im not asking you to judge my case/intentions. simply for advice on my options.

Thank you.

[Rebecca Jo 1,962]

Well if you are seeking clarification, the basis for adjusting status would be marriage to my girlfriend, However I am not about to get married to someone if we are then going to be torn apart by an over zealous ICE, for both our sakes..... and no, Neither am i going to ask her to drop her life here and come to Europe with me, like i said in my original posting, if legalising my status here is too much hassle I will abandon the US.... there are plenty of other places in the world where i would be happy living and already have permission/freedom to go.

I had no pre-meditated intent to immigrate to the US, in fact I didnt even think i would like it very much, until i spent some time here....... at that time AOS through marriage even on VWP was not only permitted but was a very well established norm....

As for benefitting the US, many people like me, who have no criminal record, are healthy, want to start a family, have money to spend and invest and create jobs (esp in Florida with unemployment at over 11%) would contribute enormously to this country, Had i known the ridiculous red tape involved in this process i would not have even begun on this journey, and thats why they are shooting themselves in the foot, but im not asking you to judge my case/intentions. simply for advice on my options.

Thank you.

You and your girlfriend have to live somewhere. Maybe you don't want to take her back to Europe because you have no life there to offer her?

I don't understand what journey you think you have begun. You came here as a visitor. You bounced back and forth over the border. You met one woman - that didn't work out. Now you've met another. Is that your journey?

Did you think you could just land over here and stay? The US hasn't had an immigration policy like that since the 50's. And France doesn't have one either.

[edgini 0]

You and your girlfriend have to live somewhere. Maybe you don't want to take her back to Europe because you have no life there to offer her?

I don't understand what journey you think you have begun. You came here as a visitor. You bounced back and forth over the border. You met one woman - that didn't work out. Now you've met another. Is that your journey?

Did you think you could just land over here and stay? The US hasn't had an immigration policy like that since the 50's. And France doesn't have one either.

No life to offer her?

Indeed, i have done a lot of travelling in the last few years, and to be honest im done with the bouncing around... im ready to settle down and I like Florida, as for europe, with my passport i can live/work in any european union country, and i have spent time in most.... as well as many other countries.

As for taking her to europe, thats something we will do in the future, but at this stage of the relationship it would be too much upheaval.

until just 2 months ago, AOS by marriage in the US was a regular occurance, hence my current dilemma.

[Rebecca Jo 1,962]

No life to offer her?

Indeed, i have done a lot of travelling in the last few years, and to be honest im done with the bouncing around... im ready to settle down and I like Florida, as for europe, with my passport i can live/work in any european union country, and i have spent time in most.... as well as many other countries.

As for taking her to europe, thats something we will do in the future, but at this stage of the relationship it would be too much upheaval.

until just 2 months ago, AOS by marriage in the US was a regular occurance, hence my current dilemma.

Your "dilemma" is that you came over thinking that if you decided to stay, there was an option available IF you met the right woman. So while you were checking out your options, you weren't paying attention to trends in US immigration policy. If you are making an investment, do you wait until you are ready to buy before you research the stock?

This is a not a case of hard-nosed US immigration policy. It's just poor planning on your part. Stop whining.

[edgini 0]

Your "dilemma" is that you came over thinking that if you decided to stay, there was an option available IF you met the right woman. So while you were checking out your options, you weren't paying attention to trends in US immigration policy. If you are making an investment, do you wait until you are ready to buy before you research the stock?

This is a not a case of hard-nosed US immigration policy. It's just poor planning on your part. Stop whining.

I am not whining, I am researching my options. your postings are totally unhelpfull and contain no advice whatsoever, please go and pester someone else and do not post anything further on my thread.

thank you.

Edited November 27, 2010 by edgini

[Rebecca Jo 1,962]

I am not whining, I am researching my options. your postings are totally unhelpfull and contain no advice whatsoever, please go and pester someone else.

do not post anything further on my thread.

thank you.

What help do you want? Jim has give you the straight-up facts. He has told you that you can marry and file from within the US. He has told you there is a trend towards the Service denying the applications of aliens who have overstayed their privileges. He has told you that if you file, you might be successful, and you might not.

Is there something else you want to know? Because there is not anything else to tell.

[edgini 0]

Right now all hangs in the balance, as many VWP entrants wait to see what the USCIS directive is on AOS after Marriage, if anybody is in that situation in Florida please advise of your experiences, alternatively if anybody gets details of the new directive/memo please advise also.....

Thanks to those who have contributed useful advice to my thread.

Im headed to the beach!

[Rebecca Jo 1,962]

There is no new directive or memo.

[Amy and Nick 37]

Hi edgini!

I have very limited knowledge on this subject but I thought id offer my two cents!

You obviously have overstayed, and you are aware of the ramifications this is going to have for you. You shouldnt have done this, and would be finding it a lot easier if you hadnt, but thats not for anyone on this site to judge!

The idea is that people can come here to find impartial advice on how best to proceed, not to be judges on the choices, bad or good, that they have made. i wish i could help you more, but im a newbie!

All i will say, is that I considered AOS (went to USA on VWP and decided to get married after three years with my now-hubby) I hadnt overstayed, but i felt that the risks were too high to risk a ban. Particularly as he is unable to upheave is life and move to England!#

However, IF i had your situation I think i would probably try AOS. It seems to me that if you leave, the three year ban is a definite. The AOS is a maybe. Try and it and see! If youve got the money to burn and are willing to gamble, then why not.

This is of course dependant on the fact that you are actually in love with your girlfriend and do want to be with her forever!

Alternatively, the investment idea sounds like it would probably be the best one, but i have NO IDEA where to start on this one!

Good luck! let us know what you decide.

Edited November 27, 2010 by Amy and Nick

[Aztec&Taino 144]

I have limited sympathy for your situation. You used the VWP, which is a privilege most people in the world do not have. You already had two VWP entries in a short span of time when you applied for the B2 visa. I'm sure the consular officer was wondering why someone who is eligible to use the VWP would want to go to the trouble and expense of getting a B2 visa. There can be only two reasons; you had a legitimate need to stay more than 90 days and less than 180 days (which would be valid), or you wanted to enter the US without the restrictions imposed by the VWP, such as the inability to adjust status if you overstay (which would NOT be valid). I'm sure you tried to make a case why you would need to stay more than the 90 days allowed under the VWP, and the consular officer obviously didn't buy it. CBP suspected something was up - it was your third VWP entry in a short time - so they referred you to secondary inspection. Since then, you've attempted to do exactly what both the consular officer and CBP suspected you might try to do - stay beyond the time authorized when you entered, and try to adjust status and get a green card. Your actions so far have shown a disregard for US immigration law. I'm really not sure why you think the US would benefit by having you here.

As always, your advice is excellent.

I particularly agree with the bolded sentences.