Decision on Visa Waiver Program Adjustments

[Myopia 93]

Nothing New! Just some more links that i wanted to post.

Sanny D

Sapochnick Comments (Audio)

Sapochnick Update

[Myopia 93]

Not that surprised with this decision.

You can not challenge removal and decision of USCIS by marriage,

Nothing new about this at all and any one who expected the court decision to be any different would have been foolish.

What does this mean?

Still problematic in San Diego, peoples.

The man was stopped for using fake ID. I do not get the desire to push these matters through the court when the client has committed a clear crime.

Bingham Vs Holder in 9th Circuit

Edited April 6, 2011 by Myopia

[Myopia 93]

Just some mo'!

Pa and NJ now adjudicating VWP cases.

USCIS Offices in New Jersey and Pennsylvania Announce that the Service Will Adjudicate Form I-485 Applications for Adjustment of Status on Behalf of Visa Waiver Entrants So Long as the Applicant Has Not Been Ordered Deported or Removed from the US

Florida Attorney

Edited April 6, 2011 by Myopia

[rpandkp 0]

I'm so confused about all this - My husband and I were planning to file the I-485/I-130 package this week - It has been a long road to save money, etc. He is VWP overstay - Should we file this way or do something else? Our filing goes to Chicago. I also just found out I'm pregnant -this was NOT a plan to help our situation - a big surprise as I'm mid-40!

[Myopia 93]

I'm so confused about all this - My husband and I were planning to file the I-485/I-130 package this week - It has been a long road to save money, etc. He is VWP overstay - Should we file this way or do something else? Our filing goes to Chicago. I also just found out I'm pregnant -this was NOT a plan to help our situation - a big surprise as I'm mid-40!

Which state do you live in at this time...and congrats on the pregnancy! It would be better to start your own thread as I really want this thread to stay strictly on VWP updates.

[JMRJ 0]

All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon.

This is the USCIS response on AILA Meeting (04.07.11)

See page 6: http://www.uscis.gov...A%20_040711.pdf

[englandgirl 0]

Hi all, just found this forum/thread.

My husband was recently denied ajustment of status (due to being and overstay). Filed/interviewed in San Diego. Is there anybody else in the same predicament, or does anybody have any latest news?

Many thanks.

[Harpa Timsah 13,258]

How recently?

[JimVaPhuong 4,863]

According to the Cavanaugh lawyer blog, San Diego will still only approve AOS for a VWP overstay if they can show good cause for the overstay.

http://www.cavanaughlegal.com/adjustment-of-status-aos/adjustment-of-status-on-the-visa-waiver-program-vwp/

[englandgirl 0]

According to the Cavanaugh lawyer blog, San Diego will still only approve AOS for a VWP overstay if they can show good cause for the overstay.

http://www.cavanaughlegal.com/adjustment-of-status-aos/adjustment-of-status-on-the-visa-waiver-program-vwp/

We are probably going to file again in a different place.

[JimVaPhuong 4,863]

We are probably going to file again in a different place.

Whether they'll accept another petition from you depends on whether the I-485 was denied with prejudice. What does the denial notice say?

[Team SD 0]

Hey guys,

Thought I would share this with you.

We had our AOS interview yesterday at the SAN DIEGO office.

The Interview was going great and the IO was happy to approve us until... She saw that although we married while under the Visa Waiver Program ( two months after admission), we filed for AOS after the visa waiver had expired (less than 2 months, due to awaiting birth certificates and tax returns, paperwork for package). Thus, it is classed as an "Overstay" and San Diego had a denial policy for this as you had to have filed BEFORE the 90 day period had expired.

We were devastated and explained that Immigration Lawyers had informed us (at a cost), that due to new USCIS guidelines issued in April 2011, it was okay to file the i-485 after VWP overstay, as long as it was within 90 days of the expiry of the VWP.

But to her credit, the IO went off to consult, as the she said the rules may had changed.

When the IO returned, we were told that the she would now have to escalate our case to the director level for review and a recommendation for approval from her, but they would weigh up the positives vs. negatives and to our credit, we had many positives (No criminal history etc) and the only negative being the brief VWP overstay.

The decision could take between one week to three months and the Director could deny us.

England girl, share your story please?

[englandgirl 0]

Hey guys,

Thought I would share this with you.

We had our AOS interview yesterday at the SAN DIEGO office.

The Interview was going great and the IO was happy to approve us until... She saw that although we married while under the Visa Waiver Program ( two months after admission), we filed for AOS after the visa waiver had expired (less than 2 months, due to awaiting birth certificates and tax returns, paperwork for package). Thus, it is classed as an "Overstay" and San Diego had a denial policy for this as you had to have filed BEFORE the 90 day period had expired.

We were devastated and explained that Immigration Lawyers had informed us (at a cost), that due to new USCIS guidelines issued in April 2011, it was okay to file the i-485 after VWP overstay, as long as it was within 90 days of the expiry of the VWP.

But to her credit, the IO went off to consult, as the she said the rules may had changed.

When the IO returned, we were told that the she would now have to escalate our case to the director level for review and a recommendation for approval from her, but they would weigh up the positives vs. negatives and to our credit, we had many positives (No criminal history etc) and the only negative being the brief VWP overstay.

The decision could take between one week to three months and the Director could deny us.

England girl, share your story please?

First of all, sorry to hear about your situation and good-luck with the outcome. I will summarize our situation, as follows;

My husband was an overstay (of 12 years). We married in April 2010, filed for AOS in the same month. Interviewed in the August. We were(wrongly)informed by our attorney that there would be no problems whatsoever, etc. etc, so were very surprised when the IO informed us that we have "a problem". He informed us that due to filing out of status that the application would be denied. He did however give us the benefit of the doubt and left the room to talk to his supervisor, during which time we got our attorney on the phone to advise us. He was of no use at this point whatsoever. We were informed by the IO that it would be passed over to the Director for decision. We waited about 4 months for the decision and it was indeed a DENIAL TO ADJUST STATUS. At this point, you have the option of filing a Motion to Appeal the decision (more $$), but we were also warned that this appeal would probably get thrown out also. But, this was the only option for us at this point. It took about another 3-4 months for the response and another DENIAL. My husband was not given any notification to leave the country or any warning of deportation. We sought the advise of several San Diego attorneys and were given a few different options. Apparantly SD is the ONLY office that is denying Overstays so filing here again would be absolutely pointless, so we have made the decision to file again but outside of San Diego. Of course we will have to start the process all over again, but if this fails again then my husband will have to leave and of course there will be a 10 year ban.

I will keep you informed of our progress. Which attorney were you using, if you don't mind sharing?

[JimVaPhuong 4,863]

First of all, sorry to hear about your situation and good-luck with the outcome. I will summarize our situation, as follows;

My husband was an overstay (of 12 years). We married in April 2010, filed for AOS in the same month. Interviewed in the August. We were(wrongly)informed by our attorney that there would be no problems whatsoever, etc. etc, so were very surprised when the IO informed us that we have "a problem". He informed us that due to filing out of status that the application would be denied. He did however give us the benefit of the doubt and left the room to talk to his supervisor, during which time we got our attorney on the phone to advise us. He was of no use at this point whatsoever. We were informed by the IO that it would be passed over to the Director for decision. We waited about 4 months for the decision and it was indeed a DENIAL TO ADJUST STATUS. At this point, you have the option of filing a Motion to Appeal the decision (more $$), but we were also warned that this appeal would probably get thrown out also. But, this was the only option for us at this point. It took about another 3-4 months for the response and another DENIAL. My husband was not given any notification to leave the country or any warning of deportation. We sought the advise of several San Diego attorneys and were given a few different options. Apparantly SD is the ONLY office that is denying Overstays so filing here again would be absolutely pointless, so we have made the decision to file again but outside of San Diego. Of course we will have to start the process all over again, but if this fails again then my husband will have to leave and of course there will be a 10 year ban.

I will keep you informed of our progress. Which attorney were you using, if you don't mind sharing?

I mentioned this briefly in my previous post, but now I'm going to ask you outright - did the denial letter say anything like "without prejudice to future petitions"? If it did then USCIS will accept another AOS application from you.

There are two very broad categories for AOS denials. One is that the applicant didn't provide the required documents or evidence. The other is that the applicant is not eligible to adjustment status because he doesn't meet some statutory requirement. In the former case they would deny "without prejudice", which means you can file again and be approved if you provide the documents or evidence that was missing the first time you filed. If it doesn't say "without prejudice" then they've concluded he's not eligible to adjust status, and they would either reject or deny any future petitions unless that ineligibility has been addressed.

What I'm saying is that it might not make any difference if you move to another USCIS field office district and refile. You might get the same results. In fact, they might slap handcuffs on him when he shows up for the interview.

Look carefully at the denial letters you've gotten. Ask a few good immigration lawyers what they think.

[Team SD 0]

Wow! 12 years overstay?

The USCIS rules have changed since your application as of 7th April 2011. (see JMRJ above).

San Diego Office Response to 7th April 2011 USCIS statement:

The San Diego office has followed up with its own emails on this subject with USCIS HQ, and was advised that when there is a visa waiver overstay they should consider the totality of the circumstances and adjudicate "on the merits".

A section 217 violation is an ICE issue that can not be ignored. (AILA lawyers argued that section 217 overstay is not more serious than any other 214 Tourist visa overstay which is excused for immediate relatives; but the San Diego office District 24, belives they need to be distinguished because of the contract the immigrant signs when coming on the visa waiver.

Interesting that they have not sent you deportation order I would get moving if you are able to file again, before ICE catch up.

The San Diego office would like to see a good reason for the overstay to favorably adjudicate an I-485 on the merits in the exercise of discretion. We are looking forward to more specific guidance.

They would argue that a 12 year overstay, would be hard to produce a 'Good reason".

Our IO took notes as to the reason we filed late, it was really just administrative, the gathering of all the paperwork. (USPS must be one of the slowest postal service in the western world I have ever experienced. My birth certificate was mailed from the UK the day after I ordered it and it took SIX WEEKS to arrive, with my UK bank cards taking NINE WEEKS ) and awful advice from US lawyers.

These forums have more accurate advice than any I have paid for.

Has ANYONE had any success at the San Diego office due to VWP overstay? Please post.