AOS from VWP; overstaying 90 days and filing while 212(e) waiver pending?

[holgerp 0]

Hi everyone,

We are currently in the process of getting our documents together and I thought I ask the experienced community for some input.
I used to work at the NIH on J-1 subject to 212(e). I recently got a job offer which allowed me to apply for the 212e waiver (No objection statement; the NIH as my previous sponsor requires a job offer letter to provide a favorable opinion for the State Department). I started the process two weeks ago.
I also married my long-term girlfriend (US citizen, of > 5years) back in June in Germany and we want to apply for the marriage-based green card. I am in the country via the visa waiver program now (as my contract at the NIH ended), hence we would file for adjustment of status.

I wanted to get your opinion on two things. First, would be overstaying my allowed 90 days on the VWP and the second, filing the green card application while the waiver has not been granted (to reduce wait time).

1. Usually I would have to leave the country before my 90 days on the VWP are up. I found this policy memorandum from the end of last year:
http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

This would enable me to stay even if I start the application for the green card/adjustment of status after those 90 days are up (unless a removal order has been issued).

2. Also, generally people can't send in paperwork for the green card until the waiver is granted (not the US State Department recommendation but the final word from USCIS). However, in the adjudicator's field manual under section 45.5. it is mentioned in Note 2 that a waiver based on a "No Objection Statement" (my case) is the only time an application for an AOS can be filed concurrently with the waiver application.

Now I am wondering how reliable those things are. Does anyone have any experience with either of these issues?
Do you think discussing this at a USCIS field office before filing the AOS application would help?
Should we get the help of an immigration lawyer?

Thank you all for your help!

Best,

Holger

[Hypnos 6,578]

USCIS cannot and will not give you legal advice.

Consulting with an experienced immigration attorney is often a good idea in non-straightforward cases, such as this one.