RFE - legal presence in US (Visa Waiver)

[mof 15]

Jim gave you superb and most competent advice. It's true that the I-94W is now processed entirely electronically. Saves a lot of trees every year.

I'm glad you were able to get this sorted.

Welcome to the USA!

Thank you, Bob - I don't feel quite "here," yet.... Hopefully, it will all go smoothly despite being VWP and we can continue to live together as a happy family without having to move abroad again.

[Used to be broken 147]

Thank you, Bob - I don't feel quite "here," yet.... Hopefully, it will all go smoothly despite being VWP and we can continue to live together as a happy family without having to move abroad again.

Hi, hopefully your case will sail along smoothly and no issues will be run into. There is some controversy in different circuits around the US regarding if someone can adjust status from an overstay VWP entry. Today on Bibdaily.com there is a link to an article I posted in this forum regarding how the government is dealing with cases like this. They can basically say yes or no. Read the article to get an idea of what NOT to do while you wait for the answer. The case discussed , the gentleman missed an interview at USCIS and they moved to deport him. Of course this also involves a ban for the illegal presence. Anything over a year can be a 10 year bar, which is waiverable in these circumstances, but a much longer process than a simple

I130 from the home country.

My advice , don't work until you have EAD and don't miss the interview, I also would not leave because that can start the clock on a bar ticking. It would not hurt to speak to an attorney given the stakes are high and there is some risk in the process.

Good luck

[Harpa Timsah 13,258]

The OP is not an overstay.

[JimVaPhuong 4,863]

You know although this site claims that it does not condone visa fraud it sure as heck encourages it by telling every person who asks that their intent to stay in the US while on a VWP isn't an issue.

The language of ESTA specifically states:

"WARNING: If upon application for admission to the United States at a port of entry you are admitted under the Visa Waiver Program (VWP) by a US Customs and Border Protection Officer, you may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under the program. You may not apply for: 1) a change of nonimmigrant status, 2) an extension of stay, or 3) adjustment of status to temporary or permanent resident, unless eligible under section 245©(4) of the Immigration and Nationality Act. Violation of these terms will subject you to REMOVAL."

It may not be an enforced rule but it is a rule nonetheless.

You answered your own question. Section 245(c )(4) of the INA makes a specific exception for immediate relatives of US citizens.

[mof 15]

The OP is not an overstay.

That is correct - I filed one month before my legal presence in the US expired and have the corresponding NOA.

In terms of what to do and what not to do to avoid jeopardizing the application: USCIS actually sent me a notification to show up for biometrics in Miami (where I filed but do not live). In order to avoid any trouble or delay, I flew to Miami just for the appointment - in other words, I am extremely eager to make this process as simple as possible.

Edited January 5, 2011 by mof