Can Visa Waiver Overstay (over 90 days) AOS if married to USC?

[Bengalita 12]

Gosh, this is a hard topic. Let me try to explain the best way possible. Ok, so a lady from church arrived from Argentina in 1996 on a visa waiver. She did not return to Argentina. She married a LPR in 2002, but he became a USC in 2006 and for her in 2006. She received an APPROVAL NOTICE (I-797), in November 2006, approving the I-130, she being the "Spouse of a US Citizen".

On the I-797, the body of the letter states nothing about her being able to Adjust Status here in the USA. Rather, it says that her paperwork will be transfered to the National Visa Center. And that's exactly what they've done. They've transfered her case to NVC, and now they're asking for Police Reports and all that.

She and her husband paid some "Notaria" (I can't stand "notarias") from Winchester, VA to do all the paperwork, and they were under the impression that Argentine wife would AOS here in the USA. But obviously, if they're getting NVC stuff, it shows that Argentine wife will have to return to Argentina. Both husband and wife did not think that NVC correspondence meant wife having to return to ARgentina. Well, duh! Yes, that's what it means!

I don't understand why, though. Shouldn't Visa Waiver Overstays be able to AOS here in the USA if married to a USC? I read the instructions on the I-485, and it clearly states that Visa Waiver Overstays cannot AOS UNLESS HE/SHE IS AN IMMEDIATE RELATIVE OF A US CITIZEN. So, .....what's going on here?

Thanks for your responses.

[bigdog 376]

They went to a notary, if they need help and translation seems to be an issue get some one certified to do this.

[Bengalita 12]

They went to a notary, if they need help and translation seems to be an issue get some one certified to do this.

I understand this. They now realize that having gone to a "notary" was not a good idea. However, am I right to conclude that a Visa Waiver Overstay CAN adjust status in USA if married to a USC? If so, why then, did this case go to NVC?

[ceadsearc 516]

Generally, someone on VWP can adjust status, though there have been cases in certain jurisdictions where it was an issue.

As she filed as the spouse of a US citizen, she should have filed the 485 concurrently with the 130. I would assume the issue could be that as it wasn't file concurrently, perhaps USCIS is under the impression she is in Argentina and/or will be filing from Argentina.

[JimVaPhuong 4,863]

File an I-485. Include a copy of the approval notice for the I-130. USCIS will request that NVC return the petition. When USCIS gets the petition back then they'll adjudicate the I-1485. She's eligible to adjust status.

A couple of provisos:

The field office in San Diego is apparently still routinely denying AOS for VWP overstays. If they live in that district then they should consult with an immigration attorney before submitting an I-485. Once they submit the I-485 they will have started a train that they cannot stop. If the AOS is denied then she'll be deported.

VWP applicants waive the right to appeal, so any denial is final - no review and no appeal. This is the risk for VWP applicants. However, with the amount of overstay she's got it sounds like she has little to lose. She's going to be hit with a 10 year ban if she leaves anyway. The only alternative would be continuing to live as an illegal alien.