I'm a tourist who got married

[Rebecca Jo 1,962]

I've been following all this as well, trying to get a handle on it. The way I am understanding it is that: you are absolutely able to apply for AoS from VWP but if you were (for whatever reason) to be denied you would not be able to appeal. Is this correct?

What would be the scenario if a person applies for AoS from VWP and they get denied-- Could they then return to their home country and file the I-130? Or are you pretty much snookered if this were to happen?

Yes they could return to their home country and file from abroad.

The problem would be that while they were in the US, they would likely have accrued overstay time and subject to a 3 or 10 year bar (depending on how time they accrued).

[ceadsearc 516]

Yes, they can return and file but they'd have to overcome whatever issue caused the denial.

[Brother Hesekiel 2,236]

Depends. If the I.O. denies the petition based on presumed misrepresentation, which is totally at his or her discretion, the denial can also carry a lifetime bar from the U.S. In some cases it has also been lead to an immediate deportation. Since there is no appeal for a VWP participant, that would be a final decision, written in stone.

[Rebecca Jo 1,962]

http://imminfo.com/Resources/CIS/matter_of_cavazos.html

Interim Decision # 2750

Volume 17 (Page 215)

United States Department of Justice

Board of Immigration Appeals

MATTER OF CAVAZOS

In Deportation Proceedings

A-22365153

Decided by Board January 8, 1980

(1) While an Immigration and Naturalization Service Operations Instruction binds neither an immigration judge nor the Board, the Service policy manifest therein may appropriately be considered by the immigration judge and the Board in exercising discretion.

(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative or other specified alien who under Operations Instruction 245.3(b) and 8 CFR 242.5(a)(2) and (3) could be granted voluntary departure until invited to appear before a United States consul to apply for an immigrant visa.

(3) Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent's United States citizen wife and child, a grant of adjustment of status is warranted as a matter of discretion.

CHARGE:

Order: Act of 1952--Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant-- remained longer than permitted

ON BEHALF OF RESPONDENT:

Laurier B. McDonald, Esquire

P.O. Drawer 54

Edinburg, Texas 78539

ON BEHALF OF SERVICE:

Richard M. Casillas

Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from the December 21, 1977, decision of an immigration judge, rendered in reopened deportation proceedings, which denied the respondent's application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. The appeal will be sustained.

The respondent, a 26-year-old native and citizen of Mexico, entered the United States as a nonimmigrant visitor for pleasure on July 1, 1976, upon presentation of a border crossing card, Form I-186, issued to him in 1972.1 On that same date, he married his United States citizen spouse whom he had known for a considerable period of time prior to their marriage; a child was born in the United States in 1974 as a result of that relationship.

At the initial deportation hearing, the respondent conceded deportability as a nonimmigrant who remained longer than permitted and was granted the privilege of voluntary departure in lieu of deportation. Prior to the expiration of the authorized period of voluntary departure, the respondent filed the present motion to reopen for consideration of his application for section 245 relief predicated upon his status as the beneficiary of an approved immediate relative visa petition. The immigration judge granted the respondent's motion to reopen the deportation proceedings, found him statutorily eligible for adjustment at the reopened hearing that ensued, but denied him the relief sought in the exercise of discretion on the ground that he had entered the United States in July of 1976 with a preconceived intent to remain permanently.

We find that the record, while providing some support for the immigration judge's findings, is ambiguous at best with respect to the respondent's actual intentions at the time of his entry. We need not dwell on that question, however, in light of our conclusion that the adverse factor of preconceived intent, if it existed, has been overcome by the equities presented.

We note with approval present Immigration and Naturalization Service policy, as reflected in Service Operations Instruction 245.3(b), regarding the discretionary grant or denial of an adjustment application. Operations Instruction 245.3(b) provides that notwithstanding evidence establishing an intent on the part of a nonimmigrant to circumvent the normal visa process, i.e., a preconceived intent to remain permanently at the time of entry as a nonimmigrant, an adjustment application should not be denied in the exercise of discretion where substantial equities are present in the case. Under that Instruction, substantial equities are considered to exist if the facts are such that the alien would be granted voluntary departure until he is invited to appear at a United States consulate to apply for an immigrant visa. The Code of Federal Regulations, 8 CFR 242.5(a)(2)(vi)(A) and 245.5(a)(3),2 authorizes the District Director in his discretion, to grant voluntary departure to an immediate relative of a United States citizen,3 prior to the commencement of his deportation hearing, until such time as the United States consul abroad is ready to issue an immigrant visa.

The Service's internal Operations Instruction 245.3(b) binds neither the immigration judge nor the Board; moreover, under the express terms of the regulation which gives effect to the Instruction, whether an alien may benefit from the Instruction as one who would be granted extended voluntary departure is a discretionary determination to be made by the District Director prior to the commencement of the hearing. We believe, however, that the policy manifest in the Instruction, i.e., to favor immediate relatives seeking a grant of adjustment of status by essentially negating preconceived intent as an adverse factor in meritorious cases, may appropriately be adopted by the immigration judge and the Board in exercising discretion on applications for relief under section 245.

The finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent's adjustment application and no additional adverse matters are apparent in the record. A significant equity is presented by the respondent's United States citizen wife and child. We conclude that a grant of adjustment of status is warranted in this case and will accordingly sustain the appeal and remand the record to the immigration judge for further processing of the application for adjustment of status filed by the respondent and for the entry of an order not inconsistent with this opinion. In light of our holding, we need not reach the alternative arguments advanced by the respondent on appeal.

ORDER: The order of the immigration judge is vacated and the record is remanded for further proceedings in accordance with the foregoing opinion.

[106206 15]

Murph it's your call.

We did an AOS because my I met my wife after she was in overstay status, and she would have triggered a ban.

You on the other hand it sounds like is within the current guidelines of your visit.

If you want to do AOS you will probably be fine.

Or you can go home and do it 'by the book'.

Just don't get into an overstay situation if you can avoid it.

Good luck in marriage and in the immigration matters.

[Murph 0]

Thanks everyone for your replies; there's certainly a lot of useful information here (plus stuff about being a traitor which I didn't quite get ) and a lot to look into. Can I just confirm that as long as I put the applications in within the time in which I am still legally allowed to be here (due to the 90 day VWP), I won't then be considered to be overstaying when the 90 days are up, because my case is being considered. I think (hope) I'm right in saying some of the posts in this thread relating to overstaying are replies to points made in the posts of others, rather than directly in relation to me.

[Boiler 46,373]

It is the receipt that counts so a week or so before the 90 days.

But bans do not accumulate until 180 days after the 90 days so no biggie.

[selma cristina 0]

Hi

Everyone can help me to help one friend of my?...Please. She get here with B2 visa on Julho 2009 and is expired all ready. She got married with a green card holder on junho 2010. Now she wants to apply for her green card or visa whatever...what she should do to do this ? Which forms she has to fill out to send to immigration? Also she does have a Tax ID but not a social security.

[JimVaPhuong 4,863]

http://imminfo.com/Resources/CIS/matter_of_cavazos.html

Interim Decision # 2750

...snip...

What's the point of quoting Matter of Cavazos here? That case dealt with the subject of preconceived intent when there were no other adverse factors, and that issue has already been beaten into the ground in this thread. BH's post dealt with material misrepresentation (a completely different matter), immigration officer discretion, and the "no appeal" clause for VWP visitors.

[Boiler 46,373]

Hi

Everyone can help me to help one friend of my?...Please. She get here with B2 visa on Julho 2009 and is expired all ready. She got married with a green card holder on junho 2010. Now she wants to apply for her green card or visa whatever...what she should do to do this ? Which forms she has to fill out to send to immigration? Also she does have a Tax ID but not a social security.

Her husband would be the one applying. She can not adjust in country because she has no status to adjust from.

Probably best bet is to lay low and wait for her husband to become a US Citizen, if he wants to.

[KeyWest 1]

Hi

Everyone can help me to help one friend of my?...Please. She get here with B2 visa on Julho 2009 and is expired all ready. She got married with a green card holder on junho 2010. Now she wants to apply for her green card or visa whatever...what she should do to do this ? Which forms she has to fill out to send to immigration? Also she does have a Tax ID but not a social security.

It would be best if you started your own thread.

[Rebecca Jo 1,962]

What's the point of quoting Matter of Cavazos here? That case dealt with the subject of preconceived intent when there were no other adverse factors, and that issue has already been beaten into the ground in this thread. BH's post dealt with material misrepresentation (a completely different matter), immigration officer discretion, and the "no appeal" clause for VWP visitors.

Because BH is attempting to imply that intent is misrepresentation.

[Little_My 464]

Depends. If the I.O. denies the petition based on presumed misrepresentation, which is totally at his or her discretion, the denial can also carry a lifetime bar from the U.S. In some cases it has also been lead to an immediate deportation. Since there is no appeal for a VWP participant, that would be a final decision, written in stone.

..He doesn't even mention the word "intent" in his post. He was merely responding to the previous question about denial of an AOS petition from VWP and what would be the consequences if the decision to deny was based on misrepresentation. At least that is how I read his response.

Edited November 15, 2011 by Little_My

[Murph 0]

OK, now I'm totally confused. Is any of this relevant to me and my case? If so, how?

[Boiler 46,373]

No, just talking heads.

Just adjust status, if you do have any concerns then consult with an immigration lawyer. The paperwork is straightforward, a diy job.

It sounds pretty straightforward to me.