I-485 with expired visa waiver

[Frannie85 0]

I'm a US citizen and i recently married a Dutch citizen who is here on a visa waiver. We married before his visa waiver expired and I called uscis to find out what steps to take and was informed that we could apply for adjustment of status at any time. I contacted an attorney who tells me that I can no longer apply because his visa waiver expired 10 days ago and he must go back. Others tell me I should apply anyway but not in San Diego county. I'm now scared and confused. Can I apply for an AOS even if my husbands visa waiver expired 10 days ago? Does it matter which county hes in? Or should he go back to Netherlands and apply from there? Should I move to riverside county? 

[DandT14 272]

He can apply for AOS here. Unless there's something you're not telling us, there's no reason he needs to go back. The overstay is nothing to worry about.

I have no idea why the county you live in would matter. USCIS is federal. Maybe things move slower in the San Diego area, but that's not a big deal.

Sounds like you're getting some goofy advice. Read the guides here and you'll be on the right track.

[Frannie85 0]

Thanks for your response. What I'm hearing is that field offices are allowed to use their own discretion and the San Diego field office is particularly conservative.

[Moomin 292]

It's sad you can't prosecute a lawyer for giving you outright bad advise.

Anyways, while it is true that your husband can go home and you start the spouse petition that way, he also already has an overstay and can't use VWP again.

On the bright side; Your husband is in the US, you are already married and asking if it's possible he can stay. Answer: Yes! Get hold of the forms i-130, i-485, i-765 and i-131 and ALL supporting forms for those forms(there are quite a few, you can search VIsa journey for aos vwp checklist). Read the instructions as well. What your husband will be adjusting from is "AOS from tourist visa" or "family based AOS from tourist visa". That's the guide you'll be looking for on Visa Journey. Always-always-always check on USCIS' webpage regarding the updated fees. The i-765(work permit) and i-131(travel document until AOS is approved) do not cost anything when submitted with AOS.

On the down side: Your husband cannot leave until he either has the travel document in hand, or the greencard.

Your husband does have an overstay now however overstays are almost always automatically forgiven when being the spouse of a US citizen.

Forms/guide/checklist: http://www.visajourney.com/content/i130guide2

[Moomin 292]

Thanks for your response. What I'm hearing is that field offices are allowed to use their own discretion and the San Diego field office is particularly conservative.

Here are some reviews from people who had their interviews at that location; http://www.visajourney.com/reviews/index.php?cnty=&cty=San+Diego+CA&dfilter=5&topic=Adjustment+of+Status

[DandT14 272]

Thanks for your response. What I'm hearing is that field offices are allowed to use their own discretion and the San Diego field office is particularly conservative.

Well, unless you're going to move, you can't do anything about which field office you go to. You'll be fine. The majority of people are approved, even in San Diego.

Congratulations on your marriage.

[Hypnos 6,577]

The issue with the San Diego field office was that they were, as a matter of policy, outright rejecting all I-485 AoS applications from VWP applicants that had overstayed their allowed stay.

This policy was ended in April 2011 and now applicants who will interview at the San Diego field office that have overstayed the VWP can adjust the same as people at any other field office can. In essence, San Diego decided their own rules which were stepped on and invalidated by the USCIS upper administration.

Edited August 26, 2012 by Hypnos

[Harpa Timsah 13,258]

Yes, your lawyer is quite out of date. Get a new one, or if after studying the forms you think you can do it on your own, skip them altogether. There is no longer a problem with adjusting from the VWP with overstay anywhere.

[Frannie85 0]

Yes, your lawyer is quite out of date. Get a new one, or if after studying the forms you think you can do it on your own, skip them altogether. There is no longer a problem with adjusting from the VWP with overstay anywhere.

It seems you've been following this topic, is there a way to know for sure that they're no longer denying solely based on overstay? Do they allow you to speak with IOs at the field office over the phone? There's just so much varying information on the internet! And it's hard to understand why an immigration attorney would give outdated information, ugh!

[Harpa Timsah 13,258]

Hypnos has the story above. There was a brief period where San Diego was doing this, but it ended 2011 due to a USCIS nationwide directive. There are many posts on this topic if you can figure out the search functions.

You are not allowed to call and speak with IOs. Lawyers don't stay up on all the issues, especially when I would guess the minority of their cases are of this type.

I know it seems scary, but there was a memo sent out that AOS from overstayed VWP must be treated as any other case, effective immediately. Things will proceed as normal for you.

If you want a history lesson, you can read the below. I urge you only to take the history lesson if you can not freak out about it

Here is a post about the denial policy from 2010. http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

Here is the reversal from 2011: http://www.visalawyerblog.com/2011/04/marriage_based_adjustment_of_s_3.html

Here is the final update from 2012: http://www.visalawyerblog.com/2012/01/adjustment_of_status_for_alien_1.html

The final has the memo: "All field offices have been instructed to adjudicate I-485 applications filed by immediate relatives who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits"

If you want a lawyer's help, I would call that lawyer who wrote these articles. He knows what's going on. But hopefully you can see, the first lawyer you spoke with was out of date. Overstay is no longer (and was only briefly in one or two offices) a problem from VWP.

Good luck and relax.

[Frannie85 0]

Hypnos has the story above. There was a brief period where San Diego was doing this, but it ended 2011 due to a USCIS nationwide directive. There are many posts on this topic if you can figure out the search functions.

You are not allowed to call and speak with IOs. Lawyers don't stay up on all the issues, especially when I would guess the minority of their cases are of this type.

I know it seems scary, but there was a memo sent out that AOS from overstayed VWP must be treated as any other case, effective immediately. Things will proceed as normal for you.

If you want a history lesson, you can read the below. I urge you only to take the history lesson if you can not freak out about it

Here is a post about the denial policy from 2010. http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

Here is the reversal from 2011: http://www.visalawyerblog.com/2011/04/marriage_based_adjustment_of_s_3.html

Here is the final update from 2012: http://www.visalawyerblog.com/2012/01/adjustment_of_status_for_alien_1.html

The final has the memo: "All field offices have been instructed to adjudicate I-485 applications filed by immediate relatives who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits"

If you want a lawyer's help, I would call that lawyer who wrote these articles. He knows what's going on. But hopefully you can see, the first lawyer you spoke with was out of date. Overstay is no longer (and was only briefly in one or two offices) a problem from VWP.

Good luck and relax.

Thank you very much, you have been so helpful....it's very frustrating when an attorney gives you wrong information and really, your life is in their hands....I really did find an apartment in riverside county so that my case can be processed there, fortunately I have not yet signed a lease. I will call the above cited attorney tomorrow morning, thanks again.

[Frannie85 0]

My I485 was denied because of the overstay, Not sure what to do now. The San Diego field office is EXTREMELY conservative!

[Harpa Timsah 13,258]

Your I-485 was denied because your I-130 was denied after a failed Stokes interview, not because of the overstay. http://www.visajourney.com/forums/topic/448714-i-485-and-i-130-denied;-help-please/