Visa Waiver overstay and GC

[msd 3]

Ok so I went through the whole process a year ago and have kind of forgotten all the stuff I learned along the way.

One of my husband's coworkers has a foreign wive. Apparently she has been here since Sept. 2010 on an expides visa waiver.

Can you guys please refresh my memory and run me down all the obstacles and procedures?

Will they deport her for sure or has she a chance of successfully staying here?

I forgot if they will just kick her out for 3 years or if her attorney can plead a case for her. She has no felonies or convictions as far as I know. I think she is german.

I'm just asking all this because we're gonna have them over one evening and I'll explain to her what I know. They have hired an attorney and I want to make sure it's not one of the shady kind.

Thank you kindly!!

[Done--Really 331]

VWP has gotten very complex and it depends on where they live. Some districts will still allow AOS, some won't, and some are just on hold.

More information please.

[msd 3]

They live in GA, Houston County. He is Army. That's all I know right now.

I'll get the details from my husband when he comes home from work. Ugh...

Edited August 16, 2011 by msd

[Harpa Timsah 13,258]

No, overstay from the VWP isn't complex anymore. It's back to be like it used to be. There was a memo published (in March?) which states that local offices do have jurisdiction to approve AOS from overstay cases and the cases that were on hold were approved within days of that memo being published.

OP - Your friend will file a CONCURRENT I-130/I-485 application and the overstay will be forgiven/irrelevant. If it is denied for other reasons, there will be no chance to appeal, but the overstay won't be the cause of any denial. Good luck.

[msd 3]

Ok here goes. She came here in Sept. 2010. They have been married since 2008. They never started a Visa process while she was in Germany. She came here on a Visa Waiver, overstayed and is still here.

No idea how she managed to get in.

Apparently the husband hired a Lawyer in Cali. They have asked them to fill out the forms but he hasn't done so. Stupid people.

The lawyer said it's too late now to do AOS.

Also, she is pregnant, due in November.

They already have one kid (born in October last year, right after she got here).

She has no felonies or convictions. No unpaid taxes since she never worked.

The whole situation is retarded but since my husband is involved now because he is that guy's boss, I need to help.

[Done--Really 331]

Harpa--very good to know--it was real messy for awhile.

msd--it's hard to tell exactly what is going on with your friend--we will need an exact time line from the very beginning, and if there are any immigration violations other than the current overstay, it could be very difficult for them. The lawyer may or may not be correct depending on the circumstances. If there are any immigration violations, then go to the following website where they deal with even impossible cases--this website is for plain vanilla cases

www.immigrate2us.net

[msd 3]

Well by now, I've told you all I know. I'll try to copy some info together. Including the website you mentioned and have my husband hand it to them.

I'm just too busy to help somebody go through this. And I don't want to bother you kind people about helping somebody who obviously was too dumb/lazy to do it right the first time.

So, thank you for what you have posted by now. I'll try to figure something out and hope they don't bother us anymore after that.

[Brother Hesekiel 2,236]

I have an idea how she got in: she entered an airplane with her passport, and arrived in the U.S., showed her passport again, and was admitted based on Germany being part of the VWP. Nothing mysterious here.

I simply assume that she did not intend to stay here, as they were married for several years already. She got pregnant, and that might be the trigger to stay. Can't blame her. If her attorney told her it's too late to file for AOS, that's not only bad, but unprofessional advice. Drop the guy or gal.

Like Harpa already told you, this is a straightforward case of AOS. Have 'em file I-130, I-485, G-325a, I-765, and I-864 concurrently. There will be an interview and I even doubt that the I.O. will bring up the issue of intent. But if he or she does, it makes a lot of sense to change plans once a woman learns that she's pregnant. It's a life-changing event and I don't see any problems at all for her to smoothly adjust status. Since they've been married for over 2 years, she'll get an unrestricted, 10-year Green Card.

No attorney needed.

[Harpa Timsah 13,258]

This should be a pretty vanilla case; maybe it treads into the territory of French vanilla. There is no need to go to a website for illegals. The lawyer who told them it's too late to do AOS probably hasn't kept up on the latest in VWP-overstay cases. I would fire the lawyer and have them make an account here and read up on the forms. It's a lot of worry for no reason.

[Done--Really 331]

Bob and Harpa

You are probably right, but we don't know the immigration history, and unless we do, we can't be sure it is French vanilla or not. Let's hope it is.

[msd 3]

I have an idea how she got in: she entered an airplane with her passport, and arrived in the U.S., showed her passport again, and was admitted based on Germany being part of the VWP. Nothing mysterious here.

I simply assume that she did not intend to stay here, as they were married for several years already. She got pregnant, and that might be the trigger to stay. Can't blame her. If her attorney told her it's too late to file for AOS, that's not only bad, but unprofessional advice. Drop the guy or gal.

I know how the process works. But thank you for explaining VWP again for me, Bob.

So it's totally easy these days for a 8 month pregnant woman to pass customs and border officials? Already married to a US Citizen who never filed immigration papers for her?

The intent to stay here was there of course. She was pregnant when she came. Had the baby here. Got pregnant again in Feb. already after the VWP was long expired.

I don't know them personally, but one more detail (probably won't change anything). She is from the Philippines. Her parents and her immigrated to germany years back and she is a dual citizen of germany and the philippines. so I was told.

Edited August 17, 2011 by msd

[msd 3]

But you know what. Since I don't care anymore (after hearing how stupid they are), I'll just tell them what you said and have them file. I doubt they'll be able to do it on their own though. Or else they would have already.

[Sergi9 110]

But you know what. Since I don't care anymore (after hearing how stupid they are), I'll just tell them what you said and have them file. I doubt they'll be able to do it on their own though. Or else they would have already.

The Army has a program as do all military services to help out with this. Have your husband point them in the direction of JAG.

[Brother Hesekiel 2,236]

I know how the process works. But thank you for explaining VWP again for me, Bob.

So it's totally easy these days for a 8 month pregnant woman to pass customs and border officials? Already married to a US Citizen who never filed immigration papers for her?

Apparently so.

The intent to stay here was there of course. She was pregnant when she came. Had the baby here. Got pregnant again in Feb. already after the VWP was long expired.

Intent for the most part happens within the human brain. You may clearly see the intent, but proving it is a totally different cup of tea. That aside, intent by itself is not sufficient to deny an AOS petition. Why? Because the Adjudicator's Field Manual says so.

I don't know them personally, but one more detail (probably won't change anything). She is from the Philippines. Her parents and her immigrated to germany years back and she is a dual citizen of germany and the philippines. so I was told.

See, that I do not believe without proof. Don't make me explain it.

[newlyweds2010 208]

I don't know if things work differently in Germany baby-wise, but if she came in September 2010 and is due in November 2011, my feeling is that she wasn't pregnant when she passed the POE. "Things" happened later on, but this would be quite irrelevant.