VWP Overstay! Starting to Panic!

[Deputy Purple 1,294]

She's worried about our progress being slowed down by a RFE, not filing the papers in the right order, or similar.

An RFE won't matter, once filed you're in a protected status. Just be sure to file all required forms.

Legal offices are just a likely to make mistakes. If you can read at 8th grade level and post on VJ then you can do everything without a lawyer and much faster.

Get your packet together, list the contents and post it on VJ, someone will tell you if you forgot something.

[juliava 80]

A lawyer is not cheap. If you add all the AOS filing fees, the medical and the lawyer's fees - you might have to have ready around $4,500 minimum. Do you really have that money?

Also, a lawyer can not change the fact that you overstayed on VWP.

This is a great website where you can learn how to file everything correctly and completely. Ask as many questions you may have and believe me, you will get the answers.

Think about it.

[Myopia 93]

Hi guys, a member from another forum suggested that I join this one, as it's more relevant to our situation, so hi

We're really panicking right now, we only found out about the changes yesterday, and all of a sudden, our future is starting to look bleak...

Hey there

I am in NYC and poised to file my AOS packet. I have not used an attorney and see no need for it seeing as my case is pretty straightforward..if any VWP adjustment can be straightforward.

I have done an awful lot of research when it comes to VWP adjustments in NY State and you are right in saying that the cases that have gone to the District Courts have not resulted in the same outcomes as those states that are now denying VWP adjustments. In fact NY leans the other way and as a result I believe that the district offices in NY are operating as they have always operated; adjusting those applications as they merit adjusting.

In my opinion bar an "imminent memo" from USCIS, NY will be doing business as usual.

Trust me when I say I have overdosed on this topic because of my own situation You can do this and tell your wife not to worry.

I live by the motto that it aint over till its over.

Dont psyche yourself out worrying about waivers at this time. Dont worry about 'ifs' until 'if' becomes 'now what'. Just focus on right now.

Edited February 17, 2011 by Myopia

[Justine+David 218]

Tell your wife that the lawyer is more likely to make a mistake, NOT you guys because I can tell that you're going to read all about this process. You're paying a lawyer who's paying an assistant WITHOUT a law degree to fill in paper.

I know your wife is worried...but don't let that cloud your judgment. She is going to have to get used to being worried--it's a consequence of your guys' decisions together. Yes, you've had bad luck, but you also rolled the dice against a path that is more dangerous than filing a traditional CR1.

If she faces to the reality that if you are denied and will be deported to England, she can move over to England and be with you (and much quicker process than the US) and bring along your daughter. You do not have to be apart. She may not like the scenery...but at least you'll be together while you wait out the ban. If she can face that reality, perhaps it will calm her down a bit and see reason as to why a lawyer would be a sheer waste of money, especially considering that you are self-admitted broke with a young child that you need to feed and clothe.

Every single day on VJ, we hear horror stories about lawyers. They're only useful if you're filing a waiver or are from a high-fraud country that the lawyer has specialized knowledge about.

[doctorbeat 6]

An RFE won't matter, once filed you're in a protected status. Just be sure to file all required forms.

Legal offices are just a likely to make mistakes. If you can read at 8th grade level and post on VJ then you can do everything without a lawyer and much faster.

Get your packet together, list the contents and post it on VJ, someone will tell you if you forgot something.

Wait, what?

I thought all this nonsense was because as an overstayer I'm not entitled to any legal protection?

Are you saying that as long as I've sent the paperwork off before any policy change, I'm ok?

That would be awesome, but it's not the impression I've got from what I've been reading.

The way I thought it was was that policy could change at any point during the application process, and that I wouldn't be truly safe from deportation until I had been approved?

Can someone clarify this for me, it seems to be a rather important point...

[Boiler 45,948]

Your understanding is correct.

[Justine+David 218]

You're protected until you have your interview. So...if they change the law while your application is pending and you have the interview and are denied, then yes, you are deportable. An RFE shouldn't slow you down by more than a week or two, so it's sort of a moot point, unless you can't produce what they ask.

Have you guys also considered the fact that the lawyer may not fill out the paperwork as quickly and efficiently as you guys would? Many lawyers take a few weeks to gather all the documents...I only took 1 week to get married, get the certificate, medical, affidavit support, etc etc.

[doctorbeat 6]

Ah, I thought it sounded too good to be true!

Being protected during the process isn't really much good if the policy changes during the process.

An RFE could make all the difference if a memorandum is hanging overhead, even if it only delayed things by a week. Unlikely, but not out of the realms of possibility.

[trillium13 84]

It can be done without a lawyer. My husband had a long VWP overstay and we filed ourselves with no problem. Yes, things have changed since he was approved, but my point is that you can file yourselves. Read the guides. It's straightforward. Provide what they ask for. There's no trickery involved.

The sooner the better!

[JimVaPhuong 4,863]

It seems that the fact that we live in NY is very fortunate, as NY has its own ideas about this subject.

There was this case:

http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202479888581&slreturn=1&hbxlogin=1

Admittedly, the circumstances of the case are rather unusual (I'm not a Mafia member ) but it shows NY disagreed with the other states, at least in the context of this case.

The fundamental premise that the other seven district courts have used to justify denial of AOS for VWP overstays is that a VWP entrant has waived any right to appeal or review, and therefore becomes immediately deportable without due process if they overstay. As a consequence, a petition to adjust status constitutes an appeal of that deportable status, and they have no basis to submit such an appeal because of the waiver.

The Galluzzo case did not address this premise at all. The court concluded that because USCIS couldn't produce the other half of the I-94W, which contains the waiver clause, that they could presume it didn't exist. With a presumption that the waiver didn't exist, they could conclude that Galluzzo's due process rights were stepped on.

Bear in mind that Galluzzo hasn't actually won yet. He's only managed to force USCIS to give him due process. He'll get his day in immigration court, and he'll probably still end up being deported.

VWP entrants no longer receive an I-94W to fill out. The waiver is signed electronically through ESTA. The defense used by Galluzo wouldn't work with someone who used ESTA to sign up for the VWP. The evidentiary loophole used by Galluzzo doesn't exist for ESTA users. It also wouldn't work for someone who did fill out an I-94W if USCIS could produce the waiver portion of the I-94W for the court.

What's more, this tactic was tried in Bradley v. Attorney General in the 3rd district court, and it failed miserably. Bradley also contended that he didn't waive his rights because USCIS couldn't produce the waiver portion of the I-94W. That court determined, among other things, that an agency of the government is entitled to a presumption of regularity, and that they could presume the agency acted according to standard procedure unless there was evidence to the contrary. Standard procedure was to require a properly completed I-94W.

Again, for emphasis: The 2nd district court hasn't taken a position on whether USCIS can deny AOS for VWP overstays without adjudicating them. The Galluzzo case didn't address this at all.

[doctorbeat 6]

Ah, ok, I guess that case isn't really relevent to my situation then.

Myopia, would you mind pointing me to the links you found?

I've been reading as much as I can, but we only found out about this two days ago.

Also, is there any way of knowing how 'impending' this memo is?

It seems that NY is carrying on as normal for the time being, and this memorandum is the thing that could cause problems.

[Fandango 1,440]

If the couple wants to use a lawyer, then I think the constant 'you don't need a lawyer' talk is superfluous. He's explained why several times, so let's move on from that.

I do rec reading the guides and familiarizing yourself completely with the laws in your state. Like Myopia did. That way, you're not at the mercy of an atty who might not be so great.

Good luck, and congrats on your baby!

[doctorbeat 6]

If the couple wants to use a lawyer, then I think the constant 'you don't need a lawyer' talk is superfluous. He's explained why several times, so let's move on from that.

I do rec reading the guides and familiarizing yourself completely with the laws in your state. Like Myopia did. That way, you're not at the mercy of an atty who might not be so great.

Good luck, and congrats on your baby!

Oh believe me, we have been reading about the laws!

I think that's just about all we have done for the last two days!

If we can get an affidavit together, and if the law doesn't change while we're in the middle of things, it looks promising.

Just wish we didn't have the Sword of Damocles (ie, possible memorandum) hanging over our heads...

[Myopia 93]

Myopia, would you mind pointing me to the links you found?

I've been reading as much as I can, but we only found out about this two days ago.

Also, is there any way of knowing how 'impending' this memo is?

It seems that NY is carrying on as normal for the time being, and this memorandum is the thing that could cause problems.

There really is no way of knowing when this impending memo,(I like to call it "imminent", It's just more scary that way), is going to be released but when it is Im sure that we will know on Visa Journey the second that it is released!

As far as I know, at this time NY is still adjusting VWP overstays, In fact states that have ruled on denying VWP overstays have actually had District Offices that have adjusted VWP overstays so things are not always what they seem. In San Diego office they are denying VWP overstays. That is a fact. North Californian Offices are still adjusting. Chicago office is also one of the districts that have a ruling yet our VJ member Lisa was able to successfully adjust having entered in the US on the Visa Waiver Program. The whole thing is very piecemeal which is why lawyers etc are expecting a memo.

Lisa's VWP Successful Adjustment

Note that Lisa was advised to sit tight and wait for an immigration reform. She ignored that advise and was successful in her adjustment.

I am sure that there is going to be some kind of direction from USCIS Director, but at this time different states are doing different things. At this time in NY (The 2nd circuit), there are no internal memos that have been published and no rash. Thankfully the government seem to be leaning to adjust those cases when they can and I, for one, am happy that they still have the ability to do so.

Here are some of the links that I have. Some may be superfluous to the thread but it gave me a better understanding of the issue.

VWP "Mafia Case" in 2nd District

Where does the idea that there is an "imminent memo" come from?

San Diego USCIS Internal Memo about VWP Adjustment Denials.

AILA Opinion on VWP Overstay Adjustments

VWP Redux-Informative

AILA VWP Update (Jan 2011)

The way I see it the entire process from filing to interview could take around 6 months. It could be sooner or it could be later; I have a friend whose husband's process took three months in full. If the memo is released before the AOS interview and the memo says to deny all VWP adjustments after 90 days then we are both done for. Instant denial with no hope of appeal.

If there is no memo than we should be home free with at least the opportunity to interview and be adjusted. If the adjustment is denied, exactly what will be different? You will be at risk of removal, be separated from your family and be banned from the USA for however long it is once deported. Sounds like exactly what the situation is now! What do you have to lose? Nothing at all.

#Lets go!

Edited February 17, 2011 by Myopia

[doctorbeat 6]

Myopia, I can't thank you enough for this.

I probably would have found all of that info sooner or later, but since we've only known about this since the day before yesterday, you have saved me a LOT of leg work

The one stumbling block for us right now is the same one we've always had (and the reason we didn't apply within the 90 day period in the first place)- the affidavit of support.

My wife hasn't seen her boss yet. He normally goes in to the store every morning, but of course this morning he decided not to.

We're still not sure what to do.

Say we are lucky, and he decides to give her a pay raise, will we be able to assemble the affidavit immediately?

If he gives her $2 extra an hour, we will be about $1,000 over 125% of the poverty line.

Since we hope to file asap, what proof will we have that she has received a pay raise?

Her current paychecks to date show that she does NOT make enough, but in our situation we really can't afford to wait around for weeks or months for her to accumulate new paychecks showing the raise.

Will they accept a letter from her employer stating that she has received a raise and showing the new amount, or will this just trigger an RFE?