I-485 Denied.

[cheekymonkey 0]

I arrived in Jan 09. We married within the 90 days. We reside in California.

[juliava 80]

I arrived in Jan 09. We married within the 90 days. We reside in California.

Yes, unfortunately we are definitely talking about a 10 years bar here if you leave US. I wasn't quite sure about it until now.

It's interesting that the letter mentions a "motion to re-open your case".

I wonder if that's possible and how would that bring any good in your case?

[john_and_marlene 162]

nevermind.

Edited January 26, 2011 by john_and_marlene

[YuAndDan 153]

This is a bummer of a topic, but demonstrates what can happen when attempting to get around the normal spouse or K-1 visa process and using VWP to immigrate.

AOS from a student or work visa tends to be no problem, unless never worked, or never went to school. AOS from Tourist, and VWP has more problems, especially VWP.

I have seen posts where the POE has visitor sign a document stating no attempt to immigrate, then later AOS fails because of this document.

[Myopia 93]

Thank you so much for all of your support and advise. I guess it is not looking too good for us but I am going to do whatever it takes to keep us together. My husband is in Grad school so can't come to England to live with me for several years and I can't stand the thought of being away from him for that long.

In answer to some of your questions:

Our I-130 was approved after the interview.

We filed in San Diego, California on July 7th 2010 after getting married on April 2nd 2009. We had our interview on December 7th 2010 and recieved the letter denying the I-485 on Jan 20th. It states that I have 30 days to file a motion to re-open the case. It does not say anything about having to leave. It also says "Although an immigrant visa is currently available to you, you are not eligible for adjustment of status".

"The decision resulting in the denial of form I-485 leaves you without lawful immigration status and you are present in the United States in violation of law. Also, as of this date, any employment authorization or advance parole granted based on the pendancy of your application is hereby cancelled".

We dont have a great deal of money but I am willing to spend whatever we have to hire a great attorney to help us through this, however I am having a hard time knowing who can really help us and who just wants our money. Any advice would be very much appreciate. We are running out of time and need as much help as possible.

i am willing to go back to the UK for a short amount of time if that is what it takes to file whatever forms I need to file but I am terrified of being banned for 10 years.

Hey Cheeky, Its a shame that you didnt visit the forum before you filed because every one would have told you NOT to file. The problem is in San Diego there was a memo that was sent out by the Director of that district office that stated the following,

" To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview."

Basically you were never going to be able to adjust in the San Diego office. I know that it says you can file a motion within 30 days but the pending ruling from the Supreme court is about this very matter.

The letter says what you already knew. You are in violation of immigration law as you do not have permission to be in the US.

Had you filed in another state you may have had another outcome but for sure, for sure...San Diego is categorically denying.

Now you have some hard choices to make, You can either

a) File to open a motion within the 30 days (and the clock is ticking) and the motion would have to state that something has changed in the initial application. If you go that route then it would be better to have an attorney file this for you but again because San Diego have a specific memo, I dont know how that would help or

b) You could stay in the US and wait for ICE to catch up with you. If they do they will take you into custody. They really do this. or

c) You can hope that there is some kind of Immigration reform that would forgive these kinds of overstay after a denial but I dont know about that or

d) You can go home and start the journey again knowing that you will be denied for your overstay and you will have to file a waiver to overcome that.

Do you have children with your spouse?

Sorry I couldnt help you more.

[Myopia 93]

This is a bummer of a topic, but demonstrates what can happen when attempting to get around the normal spouse or K-1 visa process and using VWP to immigrate.

AOS from a student or work visa tends to be no problem, unless never worked, or never went to school. AOS from Tourist, and VWP has more problems, especially VWP.

I have seen posts where the POE has visitor sign a document stating no attempt to immigrate, then later AOS fails because of this document.

It is a bummer if people use the VWP to immigrate specifically and it fails. AOS from tourist visas do not have the same problem as the applicants had a interview in their countries and didnt sign a waiver for appeals.

You can be denied regardless of what kind of visa you have or dont have. Ask the people in the MENA forums who are denied simply because they are from a particular country.

[MrsP2010 20]

I think the problem is (this is true for me) many people just don't realize the immigration laws when they marry. We'd done a little research, but it's only when you know to look for problems with the path you're on that you realize there are problems. When I looked online in the Summer after his proposal, all I found was the stuff from early 2010 saying overstays were ok.

My problem is, McDonalds is told it doesn't make it obvious enough that eating it every day will make you fat, but marrying someone from a different country is so easy to do on the wrong visa without realizing anything is actually wrong with it. And I know it's my responsibility to find out the facts before I make a legal decision, but I really thought I had, otherwise I would have followed the normal process.

[katiemanny 64]

This is why they created K1 and CR1 visa so people could bring their love one with less hassle. Now you're talking about spending a significant amount of money and time just to keep your husband from being deported, and if he does go back you will have to wait 10 years unless apply for a waiver proving extreme hardship if you move back with your husband to England, and I doubt there's any extreme hardship to move to such a beautiful country with free health care.

Sorry about your situation, and I will you good luck on your journey

[Myopia 93]

I think the problem is (this is true for me) many people just don't realize the immigration laws when they marry. We'd done a little research, but it's only when you know to look for problems with the path you're on that you realize there are problems. When I looked online in the Summer after his proposal, all I found was the stuff from early 2010 saying overstays were ok.

My problem is, McDonalds is told it doesn't make it obvious enough that eating it every day will make you fat, but marrying someone from a different country is so easy to do on the wrong visa without realizing anything is actually wrong with it. And I know it's my responsibility to find out the facts before I make a legal decision, but I really thought I had, otherwise I would have followed the normal process.

Dont beat yourself up about it. I came in 1998 when they were saying that it was better to file after the 90 days so as to avoid being seen as having intended to marry when immigrating.

Some do it the correct way and good on them. I commend them for that. Others don't.

[TracyTN 237]

Immigration is a very specialist field. When you're contemplating going through it, reading and posting on forums like these is an almost must-do, and thankfully, most people do that. If they present their situations in an accurate way, they may be told to have at least a consultation with an immigration attorney if there is anything that could possibly muddy the waters away from it being a strictly DIY case.

I'm not sure how USCIS could 'advertise' that you may want to seek help with this process. They put the forms and information out there, and yes, the onus is on the applicant to understand and get through the system, or get help with it. Unfortunately, things like this (a seeming change in policy) will catch people out regardless of the research they have done, or even if they have gotten an attorney.

[cheekymonkey 0]

I have been advised by an attorney to have my I-130 transfered to the London consulate and file a I-160 to waive the 10yr ban. She also said that now I already have the 10yr ban I do not need to hurry to leave the country as a further overstay will not add to the penalty, I should stay here until the ban is waived and then go back to the UK to complete the CR-1 process.

Any comments on this advice?

Thankyou

[Myopia 93]

I have been advised by an attorney to have my I-130 transfered to the London consulate and file a I-160 to waive the 10yr ban. She also said that now I already have the 10yr ban I do not need to hurry to leave the country as a further overstay will not add to the penalty, I should stay here until the ban is waived and then go back to the UK to complete the CR-1 process.

Any comments on this advice?

Thankyou

My only comment is that now ICE have your address. There is nothing to prevent them arresting you and putting you on a plane.

You need to be very careful. I would consult with someone else and see what they say. Not to mention you need to build a case for hardship.Do you have any children with your husband?

[Harpa Timsah 13,258]

I have been advised by an attorney to have my I-130 transfered to the London consulate and file a I-160 to waive the 10yr ban. She also said that now I already have the 10yr ban I do not need to hurry to leave the country as a further overstay will not add to the penalty, I should stay here until the ban is waived and then go back to the UK to complete the CR-1 process.

Any comments on this advice?

Thankyou

That sounds fine to me if the 485 was just plain denied. I do wonder though, did you get a notice to leave the country? or a deportation order or any other instructions? If you did, I would follow the instructions on the letter they sent you. If they just told you to leave, and did not actually deport you, then it's better to follow the rules and show them you have regard for the laws (except of course the overstay). That might also save you one waiver to file (depending on the situation, you may have to file a 212 waiver too if they order you deported. If they didn't do this, they are trying to help in their weird way, and I would not spit in the face of that "kindness.")

[TracyTN 237]

That sounds fine to me if the 485 was just plain denied. I do wonder though, did you get a notice to leave the country? or a deportation order or any other instructions? If you did, I would follow the instructions on the letter they sent you. If they just told you to leave, and did not actually deport you, then it's better to follow the rules and show them you have regard for the laws (except of course the overstay). That might also save you one waiver to file (depending on the situation, you may have to file a 212 waiver too if they order you deported. If they didn't do this, they are trying to help in their weird way, and I would not spit in the face of that "kindness.")

I tend to agree with this. . How is she sure that this plan of staying while you await the outcome of the I 130/waiver won't bite you later? To suggest a blatant disregard of the law is risky, and I'm surprised she'd suggest it. Unless, as Harpa Timsah says, they have not yet told you to leave the country. Either way, you're going to have to leave for the UK at some point if you go with this attorney's suggestion. I guess only you can determine if waiting or going now is better for you in the long run.

It also bothers me that the attorney called the waiver by the wrong name - it's a 601. Where she got I 160 is beyond me. Buyer beware on that one.

If it were me, I'd talk to at least another attorney. Did this one specialize in this area or have a lot of experience with similar cases that you know of?

[LIFE'SJOURNEY 970]

I have been advised by an attorney to have my I-130 transfered to the London consulate and file a I-160 to waive the 10yr ban. She also said that now I already have the 10yr ban I do not need to hurry to leave the country as a further overstay will not add to the penalty, I should stay here until the ban is waived and then go back to the UK to complete the CR-1 process.

Any comments on this advice?

Thankyou

Did you get a signed statement from the lawyer that states if you are picked up by ICE, he/she will bail you out.

Indeed you may have to depart now that your I-485 has been denied or you risk being taken into custody, imprisoned for the night, and put on a plane the next day, as people who came on VWP are not entitled to a Hearing before an Immigration Judge.