Married while in US on ESTA - AOS?

[AF-Wife 181]

this is my opinion. they dont have to listen to it & you don't have to agree. I think, here on VJ, there's enough information about how it can be done and the money for an attorney can be saved!

[Rebecca Jo 1,962]

this is my opinion. they dont have to listen to it & you don't have to agree. I think, here on VJ, there's enough information about how it can be done and the money for an attorney can be saved!

That's right, they don't have to listen to it.

Reputable practitioners of US family based immigration don't charge a lot for a consultation. Reputable practitioners won't try to take a case where their services aren't needed, either. I know because I had an attorney consult and was told I didn't need to hire him.

At the end of the day, it's up to the OP. I prefer to lead people seeking real advice down the path of caution. Because it's their life. Their real life.

Edited May 4, 2012 by Rebecca Jo

[Maria TH 20]

I am curious about what is the consequence if his AOS get denied?

Will he just have to go back to his country and file CR1 after the denial?

[AF-Wife 181]

I am curious about what is the consequence if his AOS get denied?

Will he just have to go back to his country and file CR1 after the denial?

yes, if his AOS will get denied here, he just has to go back to his country and file CR-1. it also depends, if he overstays ... but yes, you are correct.

[SOflaherty 40]

Reputable practitioners of US family based immigration don't charge a lot for a consultation. Reputable practitioners won't try to take a case where their services aren't needed, either. I know because I had an attorney consult and was told I didn't need to hire him.

I have to respectfully disagree and say your situation is by far the exception and not the rule. I've been lurking on this board for two years, and if I had $1 for every time I read about a couple who got a lawyer for a simple AOS case and either later figured out they could have easily done it themselves, or worse has the lawyer screw up their case in some way, I would have a LOT of $ in front of me. Very few lawyers would ever tell someone their services aren't needed for an immigration case, when in reality, if it is a simple case', they are far more likely to actually slow things down.

[Rebecca Jo 1,962]

I have to respectfully disagree and say your situation is by far the exception and not the rule. I've been lurking on this board for two years, and if I had $1 for every time I read about a couple who got a lawyer for a simple AOS case and either later figured out they could have easily done it themselves, or worse has the lawyer screw up their case in some way, I would have a LOT of $ in front of me. Very few lawyers would ever tell someone their services aren't needed for an immigration case, when in reality, if it is a simple case', they are far more likely to actually slow things down.

I've read those stories also, so I understand your perspective.

We actually had two attorney consultations during my husband's visa process. Once at the beginning (seven years ago), before we filed. That gentleman told us our case was simple and he felt we could handle it ourselves. That's the one I had in mind when I wrote my opinion above.

We had a second consultation two years later when my husband's adjustment of status was stuck in name check. To be honest, I'd kind of forgotten about that one! The second attorney advised there was nothing she could do for us at that time, but if my husband's case was not approved by the end of three years we should get back to her about a writ of mandamus.

All I know is that in both cases, I heavily researched who I was interested in hiring. I looked for experts in FAMILY cases (a great majority of "immigration" attorneys in the US have experience with employment visas instead of family visas). I also looked for someone who had been in practice for some time. I looked at their past credentials and the credentials of their staff (any State Department experience? ever under supervision of a US attorney? etc).

The law is like any other professional field where there are experts or careless individuals; honest men or dishonest. I think it's not unlike buying a house or a car in that you have to be a pro-active consumer.

[jdh 103]

Misrep is a handy little charge to slap on top of something else in the file the AO doesn't like.

I realize there is case law which advises AO's to approve the case even if intent is obvious. What the case law also says, however, is intent is not enough to deny IF ALL OTHER ASPECTS OF THE CASE ARE SATISFACTORY.

That is actually not how the case law or the field adjucators manual states it..."all other aspects satisfactory" yields different meaning than "adverse conditions".

I feel like you may be incorrectly interpreting the fact that AOS is described as "discretionary".

The way you have described it makes a picture of an IO that doesnt like your haircut so he can throw intent in there and call it a denial.

The fact it is discretionary doesn't mean they are given free reign. From the Field Manual:

"Although all types of adjudications involve proper application of laws and regulations, a few also involve an exercise of discretion: adjustment of status under section 245 of the Act, change of status under section 248 of the Act and various waivers of inadmissibility are all discretionary applications, requiring both an application of law and a consideration of the specific facts relevant to the case. An exercise of discretion does not mean the decision can be arbitrary, inconsistent or dependant upon intangible or imagined circumstances.

For each type of adjudication, there is also a body of precedent case law which is intended to provide guidance on how to consider evidence and weigh the favorable and adverse factors present in a case. The adjudicator must be familiar with the common factors and how much weight is given to each factor in the body of precedent case law. The case law and regulatory guidelines provide a framework to assist in arriving at decisions which are consistent and fair, regardless of where the case is adjudicated or by whom."

If an adjucator makes a negative decision it has to be because they have weighed both the positive and the negative elements of the case and the negatives outweigh the positives according to precedent case law.

The amount of weight that is given to strong family ties is VERY heavy and outweighs, according to case law, intent.

An adverse factor cannot just be something made up - ie: bad mood, bad hair day etc. An adverse factor would be something like, overstay, crime, illegal work, evidence of a shame divorce or marriage. If some of these 'actual' adverse factors are weighed and measure to more weight than family ties than the case may very well be denied.

Here is some applicable case law on that as recorded from the 'Matter of Battista':

"We disagree with the findings of the immigration judge and the district director in regard to the respondent's intent at the time of his 1978 entry to the United States. Although the respondent admits knowledge of the visa petition filed by his father, he has consistently stated, both in an affidavit signed on September 12, 1978, and at the hearing, that he only intended to visit his family for a short period until he arrived in this country, at which time they convinced him to stay. As counsel points o ut, the respondent had an approved visa petition and could easily have obtained an immigrant visa if he had intended to live permanently in the United States. 2/ Although the respondent admits that he did not inform the consul of his approved visa petition, he asserts that he was not asked whether a petition had been filed on his behalf. The Service was unable to obtain the respondent's nonimmigrant visa application to establish that he lied to the consul. Furthermore, the consul indicated that a visa might have been granted anyway, even if the respondent's true status had been known. Under the circumstances presented, we are not persuaded that the respondent h ad a preconceived intention to remain in the United States when he applied for a visitor's visa and entered the country.

In any case, as counsel for the respondent notes, a preconceived intent is only one factor to be considered in exercising discretion on an adjustment application, so the immigration judge erred in finding the respondent ineligible to adjust on that basis alone. See Matter of Ibrahim , 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos , 17 I&N Dec. 215 (BIA 1980). The record reflects that the respondent's parents and siblings are United States citizens and lawful permanent residents and that he has a United States citizen spouse and child. These are significant equities which the immigration judge failed to consider in denying the respondent's application.

As you can see, it is not quite as simple as some folks make it out to be, in thinking the adjucator has free will to reject an applicant for any reason.

Yes there is a vert small risk of denial, and that is true for any case even those that are filed outside of the US.

Cases with family ties as a rule will almost always result in a favorable act of discretion, as per case law.

If it does not, as an AOS applicant on a VWP or Tourist Visa etc. you would have no right to appeal. This could be a negative if there a documented overstay that may complicate things with a potential bar from re-entry. Otherwise it is simply a matter of going back home and re-filing from there and spending a few months apart. ie. doing what other people have had to do from the start.

Obviously you have to weigh your case individually and determine what is best. For a lot of people with a fairly straightforward case, it is an easy decision. For you it may take a little more thought - only you know the full details of your situation.

Best of luck.

Edited May 4, 2012 by jdh

[Rebecca Jo 1,962]

I feel like you may be incorrectly interpreting the fact that AOS is described as "discretionary".

The way you have described it makes a picture of an IO that doesnt like your haircut so he can throw intent in there and call it a denial.

jdh - Thanks for that thoughtful post. I just wanted you to know that I'm not interpreting things incorrectly. I'm familiar with the caselaw you have posted. They are good cites. I hope I didn't write my opinion in such a way as to give someone the impression that an AO can deny someone for a bad haircut.

My opinion in this case has to do with "totality of circumstances", a phrase used by officers in decision-making. And the fact that should there be an adverse decision, the officer will go to great lenghts to justify it. In this case there exists the possibility (dependant on CBP records) of a misrep charge. It may be a slim possibility, but it exists nonetheless.

It is also noteworthy for the discussion that CBP records (and the testimony of CBP officers when it is needed) are regarded as sancrosanct in a court of law.

[jdh 103]

jdh - Thanks for that thoughtful post. I just wanted you to know that I'm not interpreting things incorrectly. I'm familiar with the caselaw you have posted. They are good cites. I hope I didn't write my opinion in such a way as to give someone the impression that an AO can deny someone for a bad haircut.

No worries, just the impression the wording gave me and figured it should be clarified.

I don't know that I am completely with you on the 'sancrosanct' title for CBP reports, but I can agree it is certainly heavy weight if recorded, and if obtained for use in a case.

The chance is certainly there, as it always is, for denial. We have definitely established and can agree on that.

But the strength of a familial tie is very strong - and one thing we should keep in mind is that IO's aren't out there with the directive to deliberately try to send people back, issue denials, or use every negative thing against you in our situations.

The fact that these proceedings are discretionary can actually work in your favor. They are influenced to not seperate families by their directives, so they should be looking for all the positives they can find to establish positive eligibility for immigration benefits. For example if your funds aren't quite there but everything else is positive there is precedent that would allow them to use their discretion to approve the case anyway. It is part of this area of guidance of weighing each factor - "The adjudicator must be familiar with the common factors and how much weight is given to each factor in the body of precedent case law."

I feel like overall we are on the same basic page. .

To anyone who wants to do some research there is lots of good info out there provided by USCIS...that's the best resource...law office pages are usually full of bad info.

[Mike Z 8]

ESTA is the program that we sign up for the VWP. you don't have to attack that person, because they just said ESTA and not ESTA visa!

i am just correcting them. (even more relevant if the mistake is the topic title)

there is no such thing as an ESTA visa. you enter under the VWP.

ESTA is a system (like the name suggests) that verifies if you are eligible to enter under the VWP.

those using the searching function should be able to find the correct content, using the correct syntax.

[Laura & Kyle 16]

I do not believe it is ever wise to tell another member they don't need an attorney consult. Because we don't know the details of their case.

I agree with this part 100%. None of us are qualified to tell you that you don't have to see a lawyer, but it's an option you should keep open. I would tell almost anyone that. However, there are many of us VWP-AOSers out there that didn't consult/use an attorney and did just fine. I agree that every case is different.

I'll be honest, it is stressful going this route, but if truly came here without intent, then the odds are in your favor. It's still stressful waiting, but he didn't want to leave me and go the CR-1 route. It was our choice and our decision. We knew there would be no way to appeal but we also heavily considered the fact that we were not hiding anything and we had no prior intent. We made an educated decision and did the AOS just fine.

And yes, there are many here would will tell you that you're not doing it the proper way and that you need to do K1 (if you were still in the consideration phase) or the CR-1(if married) way. This is completely untrue. Some of those posters will rant about it not being fair, you're cutting in line, etc. etc.

You've got to have a thick skin here at VJ, but if you ask open questions about adjusting from VWP, know you'll get those "it's not fair" kind of people responding. By the time you make it to the ROC part, everyone is friendly and it doesn't much matter which route you took.

[Hypnos 6,576]

If it does not, as an AOS applicant on a VWP or Tourist Visa etc. you would have no right to appeal.

I believe only visitors from the VWP waive any possible appeals; tourists who entered on a B-2 visa retain their right of appeal.

Edited May 4, 2012 by Hypnos

[ValerieA 350]

I believe only visitors from the VWP waive any possible appeals; tourists who entered on a B-2 visa retain their right of appeal.

That is correct. People on visitor's visas can appeal.

[jdh 103]

That is correct. People on visitor's visas can appeal.

Yah, my bad - I didn't mean to put visa on there. I intended people like Canadians who don't enter on the VWP but still have no visa - just plain old tourist/visitors.

Thanks for the correction.

[ValerieA 350]

Yah, my bad - I didn't mean to put visa on there. I intended people like Canadians who don't enter on the VWP but still have no visa - just plain old tourist/visitors.

Thanks for the correction.

Canadians can appeal, also. Only those on the VWP can't appeal.