What Sates have been denying Visa Waiver Overstays?

[Harpa Timsah 13,258]

Myopia, are you sure that the I-601 waiver wasn't for another reason? 601s can be adjudicated in country, usually for something that makes a person inadmissible. There was a recent in-country 601 required on this forum for an arrest for shoplifting (CIMT). Was the 601 in that case purely for overstay from VWP? I will reread your link in the meantime.

[JimVaPhuong 4,863]

Im not so sure that USCIS want to make a policy directive. The Solicitor General reaffirmed what we already know so I don't know if they are anxious to issue one especially when there is a clear split in what different circuits have decided. In the 2nd circuit, they have chosen to remain silent on VWP and have stated that they do not agree that a person waives his right to appeal by virtue of being on the Visa waiver program. In one case that I read they stated that USCIS couldn't produce an actual signed waiver as a reason.

What I do find curious is what I noted in my post which is an applicant just had an interview with Chicago for AOS from the Visa Waiver and they were given the I-601 waiver packet to complete at the interview. That would seem to be a huge policy change and would seem to suggest that at least at Chicago office with at least one IO, they are asking applicants to file waivers in order to process the actual I-485.

Have you or anyone else for that matter came across the same kind of case?

I wouldn't call it a "clear split". The 2nd circuit court decision is in contrast to the decisions of at least six other district courts, which means that for the first time there isn't unanimous agreement between all district courts. If you get enough judges to weigh in then you'll always eventually find one who dissents from the majority.

Personally, I think the 2nd district court was wrong. They were looking at the case as if it were a simple matter of contract law - if the government can't produce the contract then they presume it doesn't exist. They're ignoring the law itself, which requires a VWP entrant to agree to the waiver. If they claim they didn't agree to the waiver then they're effectively saying they were not admitted legally into the US. This is the position at least one other court has taken. You can't claim to be admitted under the VWP, and also claim you dictated your own terms of entry.

If anything, the 2nd district court decision pretty much guarantees this is going to end up in front of the Supreme Court. I doubt they'll side with the one court and against the other six.

Like Harpa Timsah, I'm also curious about the I-601. A VWP overstay is not being denied AOS because of an inadmissibility. They're being denied because they are effectively at an equivalent point in the removal process as someone who is facing an immigration judge for the last time, which means they are one signature away from being deported. USCIS considers their AOS application to be a request for a stay of removal, and a VWP entrant waived the right to make that request when they entered. However, the basis for removal is unlawful presence - not an inadmissibility.

[Myopia 93]

Myopia, are you sure that the I-601 waiver wasn't for another reason? 601s can be adjudicated in country, usually for something that makes a person inadmissible. There was a recent in-country 601 required on this forum for an arrest for shoplifting (CIMT). Was the 601 in that case purely for overstay from VWP? I will reread your link in the meantime.

No I'm not sure now I go back to check. Sorry about that. It was for misrepresentation.

[britnick77 0]

Anybody in texas experienced the same thing?

I fall into the same cateogory. My case was last touched in Jan. I just completed my bio.