Decision on Visa Waiver Program Adjustments

[schatzi3277 6]

In the revised instructions from 01/18/2011 on how to file the i-485,it states that you can't adjust status if you were admitted under the VWP, unless you are applying because you are an immediate relative of a U.S. Citizen (parent, spouse, widow/er..). Page 2 of the Instructions on how to file an i-485. I am sure everyone will find a reason to argue this and what it means or could mean.

Everyone have a good night

[caeremonarius 26]

In the revised instructions from 01/18/2011 on how to file the i-485,it states that you can't adjust status if you were admitted under the VWP, unless you are applying because you are an immediate relative of a U.S. Citizen (parent, spouse, widow/er..). Page 2 of the Instructions on how to file an i-485. I am sure everyone will find a reason to argue this and what it means or could mean.

Everyone have a good night

I'm fairly certain that nothing has changed on that point. I don't have a copy of the instructions my wife and I had used last year to adjust her status, but I'm almost positive that they (the instructions) had similar wording. (In other words, I don't think that that particular section was revised.) I'll check later today if I have a chance.

AJ

[Deputy Purple 1,294]

Most understand that VWP AOS'ers have no right to appeal even if they file to adjust status within or out of the 90 day lawful stay.

I believe that some people are waiting for a memo to clarify this unequivocably, and I dont believe that is going to happen with the wording that is expected. If the memo that AILA have mentioned is the memo than it really must be anticlimactic for those waiting for a statement that states that USCIS will no longer adjust VWP over-stayers aka Visa waiver express, jumping the line, hey its not fair etc.

I don't think anyone is waiting for a memo to clarify the waiver of right to appeal for VWP entrants, it's never been about that. It specifically relates to one question:

Does applying to Adjust Status after the 90 days constitute a request equal to Cancellation of Removal which is something a VWP Overstayer has no right to ask for due to the Waiver. See if they apply before the 90 days then they aren't deportable so they're not asking for a negative status to be cancelled whereas if they apply after then they are [technically]. That has always been the core issue here and the reason used to deny in San Diego. Thus fas five of circuit courts have agreed that they don't have jurisdiction to even hear an appeal [let alone overturn] VWP Overstayers request on a negative decision.

The only official that stated that there was to be memo, was an Immigration Officer at Newark office who informed a VJ adjuster of this fact. This was the same IO who said that the adjustee was on hold because of her VWP overstay so I suppose we should just disregard both statements seeing as neither can be proven. Right?

Its just hearsay and internet muddling.

Actually I could swear there were other local documents referred to in one of the [many] other treads about this topic. Plus we have the rulings of the 5 districts regarding their lack of jurisdiction on the matter. We shouldn't discount anecdotal evidence but we can't give it same weight as factual evidence either.

No. Im not "emotionally attached". I don't live in San Diego.

Actually, you don't have to be in San Diego to be emotionally attached, we're seeing denials & decisions on hold from other offices. Additionally your earlier post you state that you are emotionally attached, "In any event my motivation is selfish in part because of my 13 years as a Visa Waiver Overstayer".

I hope this memo is published soon so this topic can be laid to bed.

As do we all...

[JimVaPhuong 4,863]

Here is another lawyers opinion and I agree with him.

Very interesting!

San Diego Blog about this decision..or not?

I hope you paid close attention to what this San Diego attorney wrote in his blog. In spite of the memo trumpeted by the AILA, the San Diego field office continues to deny AOS to VWP overstays. The New Jersey office has released their hold, and started adjudicating cases. As I suspected might be the case, New Jersey was apparently holding these cases because they wanted guidance from the national director whether they had jurisdiction to adjudicate them. San Diego never questioned whether they had jurisdiction, and they're still denying them.

The lawyer also mentioned that Bradley's writ of certiorari was denied, so the Supreme Court isn't going to be weighing in on this anytime soon.

I think we're still waiting for that other shoe to drop...

[Myopia 93]

Does applying to Adjust Status after the 90 days constitute a request equal to Cancellation of Removal which is something a VWP Overstayer has no right to ask for due to the Waiver.

Let me ask you this, What does it mean when USCIS say that they retain jurisdiction to adjust VWP applicants that file after 90 days?

Maybe the only memo about this issue is a memo that is going specifically to San Diego office. Newark office are happy with their memo as they are taking cases off hold.

Actually I could swear there were other local documents referred to in one of the [many] other treads about this topic. Plus we have the rulings of the 5 districts regarding their lack of jurisdiction on the matter. We shouldn't discount anecdotal evidence but we can't give it same weight as factual evidence either.

There aren't any local documents. There is one in San Diego. The courts don't have jurisdiction because USCIS do. USCIS in San Diego have retained their jurisdiction to deny all VWP cases (Whilst allowing parole in place). They are allowed to do this.

Actually, you don't have to be in San Diego to be emotionally attached, we're seeing denials & decisions on hold from other offices. Additionally your earlier post you state that you are emotionally attached...

Being selfishly motivated doesn't mean emotionally attached.

There is only one office that we know of, that is denying carte blanche.

The truth is some people think that the VWP is a fast track to adjusting status and that it is unfair. That is the motivation that they have to see a memo that states that no one is allowed to adjust on VWP anymore. Anyone can dress it up and act as it if is about point of law and judicial reviews but the truth is these people want to see this "loophole" closed. Just call it what it is.

Edited March 25, 2011 by Myopia

[Myopia 93]

I hope you paid close attention to what this San Diego attorney wrote in his blog. In spite of the memo trumpeted by the AILA, the San Diego field office continues to deny AOS to VWP overstays. The New Jersey office has released their hold, and started adjudicating cases. As I suspected might be the case, New Jersey was apparently holding these cases because they wanted guidance from the national director whether they had jurisdiction to adjudicate them. San Diego never questioned whether they had jurisdiction, and they're still denying them.

The lawyer also mentioned that Bradley's writ of certiorari was denied, so the Supreme Court isn't going to be weighing in on this anytime soon.

I think we're still waiting for that other shoe to drop...

New Jersey had cases on hold based on the Bradley case, as I can recall, whilst San Diego had the Momeni case. Two different kettles of fish yet interpreted as if there was a national memo that was about to be issued that would address all these different situations. That looks less likely seeing as one memo with guidance has been issued and accepted.

What is the other shoe supposed to do?

I mean seriously. San Diego have the right to deny VWP. Case closed.

[JimVaPhuong 4,863]

New Jersey had cases on hold based on the Bradley case, as I can recall, whilst San Diego had the Momeni case. Two different kettles of fish yet interpreted as if there was a national memo that was about to be issued that would address all these different situations. That looks less likely seeing as one memo with guidance has been issued and accepted.

What is the other shoe supposed to do?

I mean seriously. San Diego have the right to deny VWP. Case closed.

It's not just Momeni and the 9th circuit. Mr. Montag, whose blog you cited, mentioned five other circuit courts that agreed with the Momeni decision. Mr. Sapochnick, another San Diego lawyer, opined in his blog that this so-called "favorable resolution" would result in changes at the San Diego office, but Mr. Montag indicates that nothing has changed in San Diego. You yourself cited multiple sources for this anticipated memo that would put the issue to rest, once and for all. Well, it hasn't. I mentioned several times in this thread, starting with post #5, that people (including you and Mr. Sapochnick) were misinterpreting the meaning of this memo. Jurisdiction has never been an issue for the field offices that were denying, so there was no reason to believe that a memo affirming jurisdiction would change anything.

Mr. Montag summed it up nicely in his blog:

Third, if USCIS is going to proclaim that visa waiver entrants can adjust, what is it going to do about all the circuit court decisions that say that they cannot?

When the other shoe drops then we will know the answer to that question.

[Myopia 93]

I went back and re-read the entire thread to see where my understanding became derailed. I quoted other posters in part.

What has been confusing is the fact that these two issues have been merged as if they were one, when in fact there are two heads to this , as I understand in my albeit very limited understanding.

The first is that ;

a) Filing for adjustment of status after the 90 days constitutes a request of cancellation of removal which USCIS can only allow in special circumstances (San Diego) but which they usually deny,(San Diego)

b) That because of the overstay, USCIS lack jurisdiction to adjust VWP entrants and those that followed that opinion placed VWP filers on hold waiting guidance from HQ.(Newark/Philly/etc)

Then there was a third ;

c) those offices that just adjusted as normal when able.

To me, lacking jurisdiction means that they cant legally adjust those entrants and the only reason that they lack jurisdiction is because the visa waiver prevents anyone adjusting after 90 days, but if thats the case, then that would mean that USCIS discretion can override lack of jurisdiction because filers have successfully adjusted.

Have I got it now?

DHS made the argument that USCIS retains jurisdiction in support of the policy of denying AOS to VWP overstays.

If they lacked jurisdiction then they would have no authority to make any decision whatsoever.

Well as we now know, the Solicitor general has confirmed this and stated that USCIS have jurisdiction to deny.But he also confirmed that they have the jurisdiction to adjust in the same way as those who filed within the 90 days.

The government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust

Whether that means by allowing parole in place or just allowing them because of the I-130 is not known at this time.

We do have one attorney that blogged that San Diego will adjust if parole in place is used but generally are still denying.

I would not be surprised if USCIS issued a directive contradicting the findings of these courts, and instructing field offices to adjudicate AOS for VWP overstays just as they would for everyone else. I would, however, be surprised if anyone is expecting that this what USCIS will do.

Well we see that USCIS did issue a directive that has at least been reported from various sources in at least one office.

Unless a policy memo is issued that specifically addresses why field offices were denying AOS for VWP overstays, and not just rehashing the argument they made in the Bradley case, then the shoe has not dropped yet.

And based on this statement, it hasn't, so far only one memo that has caused hold offices to adjust. I wonder what that memo said. Specifically.

I don't know why some USCIS field offices have been holding AOS petitions from VWP overstays, rather than adjudicating them. I had presumed it was because they were waiting for guidelines from the national director. If the reason was because they weren't sure if they had jurisdiction to issue a decision then this memo should clear that up, allowing them to move forward with those cases.

Well the Solicitor general said that USCIS had jurisdiction and they have moved forward.

If things were always up to the individual field offices and IO's, and the memo says that the USCIS has discretion adjust status or not, then nothing is different. If the SD office continues to use its discretion to deny all VWP overstayers, then that will continue. Maybe the offices that have had applicants on indefinite hold will now make a decision,

And this is the case with at least one of the offices that were placing cases on hold. They allegedly got a memo but it is not the memo that is hoped to address cancellation of removal. Hey, it may not even be because of a memo.

What I understand is that USCIS are affirming, in the Newark memo, that they DO have the right to adjust these applications regardless of what the district appeal courts have said and regardless of when the application was filed.

And that is basically what I am saying.

USCIS are not following what the Courts opinions have been regarding cancellation of removal being a form of appeal and they dont have to.. They have jurisdiction whether to approve or deny and the courts can not change what USCIS as an agency have decided. Ie. The courts can't approve a case that USCIS have denied or vice versa when it relates to visa waiver.

Maybe I'm still confused.

I don't think I am. I just think that this is not an easily reconcilable issue.

[JimVaPhuong 4,863]

I don't think you're confused. I think you now have a good grasp of what's happening. What this memo appears to have addressed is the question of jurisdiction for those field offices that were sitting on AOS petitions. AILA views this as a positive development, and I would agree. I don't think it's fair to anyone when a field office won't make a decision because they don't know what to do.

What's still lacking is a uniform policy nationwide. I was really hoping that the Bradley case would be heard by the Supreme Court. However, even if the Supreme Court had agreed to hear the Bradley case, I'm not sure it would have settled the matter. As I said when you originally discovered Bradley's writ of cert., I thought Bradley's attorneys asked the wrong question of the court. Instead of asking whether a VWP overstay should have a right to appeal in an immigration court, they should have asked if an AOS application from a VWP overstay constitutes any form of appeal. That's the crucial question that needs to be answered.

Maybe another case will make it to the Supreme Court and they'll agree to hear it. If not, maybe the national director of USCIS will issue a policy memorandum that standardizes this across all field offices. I don't think it can hang in limbo forever.

[Myopia 93]

Yea I agree with you 100%.

I didn't think that the Supreme court would hear the Bradley case to be honest. It just seemed like too much of a hot potato issue in lieu of, what I am sure, is some clandestine government direction as relates to family reunification.

After all a uniform policy, no matter how legit, would specifically affect every visa waiver entrant who is trying to be adjusted based on marriage.

That's a whole lot of married couples with or without children who would be denied and I don't know if the government have the stomach for this kind of publicity at this time.

What would be mass denial and deportations of people from Westernized culture, not quite the Mexican in labor wading through the Rio Grande version of illegals that most people are used to.

We really shall see. I will keep posting links when I find them on this thread, if only to keep the info in the same place.

Again, thank you!

Edited March 27, 2011 by Myopia

[serendipity10 0]

Id just like to throw in my 2 cents here if I may. Now, I have just SKIMMED through all the posts so someone has made a point to say this already I apologize. It seems to me that whether you overstay or not on the vwp and attempt to aos this is not the issue. The problems arise when other elements are involved that create a redflag. In all major cases I've read there has been something wrong besides overstaying or adjusting from vwp. I think what happens is it is much easier in these cases to deny them cause they overstayed then getting into the real reasons which might require a bit more evidence and explanation on the IO's part. This is just my humble opinion based on seeing numerous vwp'ers overstayers and with 90 days file, including myself, and get approved with literally no questions asked. There's too much fear mongering on here too many opinions floating around not enough analytical answers. I think fate and good faith cone into play when it comes to immigration period. If it's meant to be it will, let's stop filling everybody with extra stress and fear. Everything in life worth doing is a gamble, you just need to decide what's best for you.

[JimVaPhuong 4,863]

Yea I agree with you 100%.

I didn't think that the Supreme court would hear the Bradley case to be honest. It just seemed like too much of a hot potato issue in lieu of, what I am sure, is some clandestine government direction as relates to family reunification.

After all a uniform policy, no matter how legit, would specifically affect every visa waiver entrant who is trying to be adjusted based on marriage.

That's a whole lot of married couples with or without children who would be denied and I don't know if the government have the stomach for this kind of publicity at this time.

What would be mass denial and deportations of people from Westernized culture, not quite the Mexican in labor wading through the Rio Grande version of illegals that most people are used to.

We really shall see. I will keep posting links when I find them on this thread, if only to keep the info in the same place.

Again, thank you!

Let's assume, for a moment, that the decision is made and a national policy is established that dictates that a VWP overstay cannot adjust status. The effect this would have is simple - no VWP overstays would apply for AOS. They would return to their home country and wait out an immigrant spousal visa. It doesn't impose any undue hardship on anyone or deny family reunification to anyone, at least not any more than the process does for the people from the 150 or so countries that are not included in the Visa Waiver Program. They have the same opportunities for family immigration that everyone else has.

The biggest problem here is the uncertainty. People make decisions based on what they believe to be factual information. For example, after entering with the VWP they decide to adjust status. They don't have the money right now, but they decide it's ok to wait a few extra months because they believe the overstay will be forgiven. When they finally get the money and apply it ends up being denied, on top of which they get summarily deported. No doubt, this is very bad. Had they known in advance that this was the inevitable outcome then they wouldn't have overstayed, and they wouldn't have sent the petition. They would have returned to their home country, perhaps visited two or three more times while waiting for the CR1 visa, and never had to deal with the AOS denial, deportation, or subsequent I-212 ban.

If the uncertainty is removed then people won't make potentially catastrophic decisions.

Id just like to throw in my 2 cents here if I may. Now, I have just SKIMMED through all the posts so someone has made a point to say this already I apologize. It seems to me that whether you overstay or not on the vwp and attempt to aos this is not the issue. The problems arise when other elements are involved that create a redflag. In all major cases I've read there has been something wrong besides overstaying or adjusting from vwp. I think what happens is it is much easier in these cases to deny them cause they overstayed then getting into the real reasons which might require a bit more evidence and explanation on the IO's part. This is just my humble opinion based on seeing numerous vwp'ers overstayers and with 90 days file, including myself, and get approved with literally no questions asked. There's too much fear mongering on here too many opinions floating around not enough analytical answers. I think fate and good faith cone into play when it comes to immigration period. If it's meant to be it will, let's stop filling everybody with extra stress and fear. Everything in life worth doing is a gamble, you just need to decide what's best for you.

You probably should have read the thread more thoroughly so you'd understand the problem. There have been seven federal circuit courts of appeal that have either decided outright or at least implied that a VWP overstay cannot adjust status. This isn't about "red flags". This is about some field offices flat out denying EVERYONE who overstayed their VWP status. Other field offices were simply putting all AOS cases for VWP overstays on hold. Myopia found out about a memo that cleared up the situation for people whose cases were on hold. It's now come to light that memo apparently didn't change things for the field offices that were denying, since at least one of them is still denying every case.

I agree that fear mongering doesn't help anyone, but neither does it help someone to tell them that they should focus on "red flags" in their relationship if they happen to live (for example) in San Diego. If someone enters on the VWP, has overstayed less than six months, and lives in an area where the local field office is known or suspected to be denying AOS for VWP overstays, then the best advice is DO NOT FILE. A CR1 is a far safer option because it doesn't come with a risk of a deportation ban if you fail.

[Myopia 93]

Let's assume, for a moment, that the decision is made and a national policy is established that dictates that a VWP overstay cannot adjust status. The effect this would have is simple - no VWP overstays would apply for AOS. They would return to their home country and wait out an immigrant spousal visa. It doesn't impose any undue hardship on anyone or deny family reunification to anyone, at least not any more than the process does for the people from the 150 or so countries that are not included in the Visa Waiver Program. They have the same opportunities for family immigration that everyone else has.

The biggest problem here is the uncertainty. People make decisions based on what they believe to be factual information. For example, after entering with the VWP they decide to adjust status. They don't have the money right now, but they decide it's ok to wait a few extra months because they believe the overstay will be forgiven. When they finally get the money and apply it ends up being denied, on top of which they get summarily deported. No doubt, this is very bad. Had they known in advance that this was the inevitable outcome then they wouldn't have overstayed, and they wouldn't have sent the petition. They would have returned to their home country, perhaps visited two or three more times while waiting for the CR1 visa, and never had to deal with the AOS denial, deportation, or subsequent I-212 ban.

If the uncertainty is removed then people won't make potentially catastrophic decisions.

Well for thousands of people it has not caused them a huge catastrophe. They have been able to adjust successfully without any issues at all,and yes it would cause undue hardship especially if there are children involved.

I believe that a fair policy either allows all over stayers to adjust when married or forces all over stayers to leave. That includes those on B1/B2 Visas. Kinda like that comprehensive bill that failed a few years ago.

The fact that I( for example) come from a privileged travel nation as opposed to someone from say China shouldn't mean that I get treated any differently when it comes to being with my spouse, regardless of how I arrived here . As long as I was inspected then I should be allowed the opportunity to adjust just like everyone else,thankfully USCIS agree and generally speaking allow VWP to adjust. I am yet to read one VWP adjustee to say that they were asked about their overstay and reasons, the true problem comes when the adjustment is denied.

I am yet to hear an AOS denied when everything is in order, that being a bonafide marriage to a USC. If you ever find one (Other than the San Diego cases) I would love to know.

USCIS can deny any application regardless of who files it and when. I have read plenty of denials on this site from people who came on K1, B1/2, Naturalization applications and whatever else. Seems to me that none is safe from USCIS discretion.

The only difference is appeal and the truth is the majority of people dont have money to pay a lawyer to fight a denial if it comes to that. The inability to appeal and lack of funds to lodge an appeal may well create the same outcome in the end.

If USCIS allow VWP entrants to adjust, regardless of when they file, do you think there is ever a good reason to adjust in country or do you believe that they should "get to the back of the line" and leave period?

Honestly I know the answer. Its a rhetorical question more than anything else.

Anyways I guess we just have to watch this space!

Edited March 27, 2011 by Myopia

[Myopia 93]

Id just like to throw in my 2 cents here if I may. Now, I have just SKIMMED through all the posts so someone has made a point to say this already I apologize. It seems to me that whether you overstay or not on the vwp and attempt to aos this is not the issue. The problems arise when other elements are involved that create a redflag. In all major cases I've read there has been something wrong besides overstaying or adjusting from vwp. I think what happens is it is much easier in these cases to deny them cause they overstayed then getting into the real reasons which might require a bit more evidence and explanation on the IO's part. This is just my humble opinion based on seeing numerous vwp'ers overstayers and with 90 days file, including myself, and get approved with literally no questions asked. There's too much fear mongering on here too many opinions floating around not enough analytical answers. I think fate and good faith cone into play when it comes to immigration period. If it's meant to be it will, let's stop filling everybody with extra stress and fear. Everything in life worth doing is a gamble, you just need to decide what's best for you.

I love your name for so many reasons. It underscores how my life has been in the US since I came, I have been more blessed in my dealings and I really believe that I would never have been able to survive here but for the fact that I was supposed to be here. You have to do whatever you do based on faith or you will lose it all.

The issue is more complicated than that but the issues that caused the flag were major matters. Fake passports? Missing several appointments etc. I still dont know why these people pushed this so hard. Those matters created this huge dilemma. Back in 2000. I used to see people advising VWP to wait to file till after the 90 days was up! I have learned to take every bodys words with a huge pinch of salt unless they are in some way able to cause some change.

I agree that there is way too much fear mongering. Thats why I reply so much. Give people the information that they need and be done with it.There was a poster who was within her VWP lawful time on another thread. She is in status and rather than let her know that she can adjust with a bonafide marriage, she was scared. Leave and get a CR1. Do it the "right way" The "elegant" way when all she wanted to know was could she or could she not.

Noone told her that CR1's get denied all the time. K1's get denied. Denials happen. It is as if people want those questioners to think that CR1 is the holy grail of approval. Tell that to the people who cant get their cases out of AP! Anyways that was a slight rant

Throw the dice and see what happens! I can get with that!

[JimVaPhuong 4,863]

Myopia, I agree with you. The playing field isn't level. It does seem unfair that a B2 visa holder from China can adjust status after overstaying while a VWP entrant from Europe might be denied outright. There are a whole host of changes that could be made to the law that would make it the same for everyone, but all of those solutions would involve going to extremes. Allowing all VWP overstays to adjust, regardless of whether or not they overstayed, would make them even with those B2 visa holders from China, but then there's still the waiver of appeal rights if they are denied. There's also the argument that it's not fair for people who don't live in a VWP country and will never get a B2 visa because they aren't wealthy enough to convince a consular officer they won't overstay.

The only way to make it absolutely fair and equal to everyone is to either eliminate adjustment of status and require everyone to get an immigrant visa, or allow everyone to come to the US as a non-immigrant and adjust status if they are eligible. Obviously, neither of these is going to happen. Immigration law is chock full of exceptions and contradictions for the same reason that the tax law is full of them - it's an attempt to make things a little more fair to people whom our elected officials believe deserve a little extra consideration. The people who benefit from the extra consideration will always think the law is right, and those who don't will always think the law is wrong.

No matter what anyone's personal views about the law are, the law should always be applied consistently. Right now, it's not.