Question about AOS and overstaying

[meauxna 15]

Most people with half brain know the difference between an opinion and a fact. Do you?

It's a proven fact that most people do not have a half a brain during the immigration process. Do you?

Seriously, errors are made this way ALL the time here. If you want to help and look up the source, do so. If you don't know, you can suggest search terms and sites for the person to do their own research. "A family friend was in the same situation" is just as weak as "I just immigrated so I can help them with the forms".

Unless either of you had a 5+ year overstay and know all the other details of this person's (3rd hand) story, the only suggestion is see an immigration attorney.

The regular flavor of atty won't cut it.

[Addie_Goodvibes 0]

LOLA-

IF the person in question did ENTER the USA LEGALLY on Visa Waiver , overstayed and did not leave and re-enter illegally then

Once married to a USC and once AOS is field the Overstay is forgiven. I usually AOS will not be denied based on the overstay.

My wife overstayed her VWP in 2004 we did not apply for AOS until June of 2006.

She was approved for 10 year Green card. in Oct. 2006 We filed everything oursleves and the interview went smooth. (Keep in mind we had a daughter together & that alone with our marriage established legitimacy!)

Everybody has a unique circumstances surrounding their case so I am not sure what the circumstances are of the person in question.

My wife overstayed due to her having complications with a pregnancy , then after we had our daughter we decided to apply AOS.

Since her date of Overstay Aug 2004 she did NOT leave the country nor did she apply for any benefits until she had her EAD/ Green card. All these things will be factors in each case.

You may be asked why the person in question overstayed, also the person in question will be asked to provide proof that they entered legally.

That is the Most importnat thing, Legal Entry.

If you are worried or have any doubts i suggest consulting a legal professional.

Good Luck

[Addie_Goodvibes 0]

What makes this case NOT fairly simple is 5 year overstay. While overstay is generally forgiven via marriage to a USC (and the reason for the overstay is not considered), anyone dealing with a situation that could go either way should consult a qualified immigration attorney with experience adjusting from overstay. Lawyers actually do more than fill out paperwork - it's their job to advise clients on the law and how it may impact them.

The Most important thing, Legal Entry. As well as intent. you friend may be questioned as to why overstay 5 years??

During the 5 year over stay did the person in question Obtain illegal employment? (work without DHS authprization EAD card), receive any govt. benefits? If so then the case is different and may be denied based on those things. Thats why an immigration Lawyer needs to be part of this process.

in Conclusion I agree with KITKAT, If you are worried or have any doubts i suggest consulting a legal professional. They are educated in Immigration law and will be able to advise you on what to do.

Good Luck

[antda 13]

Hi Lola,

Welcome to vj. Good luck on your immigration journey. From personal experience, arriving in the USA on a visitor's visa, getting married, and then applying for an AOS is legal to do. This is provided if they DID NOT come into the USA with the intention of immigration fraud by getting married here in the USA. The AOS this way worked for me (as I got my AOS approved/Green Card), but I can't say that it will work for everyone else, as every situation is different.

My best advice to your friend and to anyone else: Hire a good immigration lawyer.

Ant

Hi all!

So I have a question...If someone entered on a visa waiver program and overstayed since 2002, then got married, is there a chance that her AOS will get approved? Assuming, of course, that there is a good reason for her to have stayed so long (which, by the way, I know nothing about).

My boss is trying to decide (lawyer, but not an immigration lawyer) whether we should help this person with the paperwork.

I mean, all the questions are going to come up in the interview, right? We can fill out all the paperwork for her for AOS, and that is all anyone can do, right? Is the process different for someone who overstayed so long? Are we going to run into problems if the boss is not an immigration attorney? Is AOS her only way? (I looked over all the other processes but AOS is the only one that does not require her to leave the country).

Now, please, I don't want to hear judgement for this person, just your input on how difficult the process will be. Thanks!!!

[Lola_ 0]

She DID enter LEGALLY

She DID work and file taxes until her visa waiver ran out

reason for overstay - I do not know

[Kez/JWolf 6]

She DID enter LEGALLY

She DID work and file taxes until her visa waiver ran out

reason for overstay - I do not know

So not only does she have a overstay she also have unathorized work as the VWP does not allow you to work.... as I said before it is all the little details like this that mack it very important that she speak with an immigration lawyer....

Kez

[Addie_Goodvibes 0]

She DID enter LEGALLY

She DID work and file taxes until her visa waiver ran out

reason for overstay - I do not know

The fact that she worked with out DHS Authorization is grounds for immediate denial of petition, If found out she could have been immediatly detained and deported.

I mention "grounds for" that does mean her fate is definate but these things all impact the outcome of her petition.

Just because she "filed" taxes does not mean working with out Authorization is accepted.

There is no proof she claimed all of her income not mention that she illegally worked with out proper authorization.

For These reasons you need to advise your friend to seek legal councel.

[JenT 0]

Lawyer up!

[Killer_Clown_2009 0]

Unauthorized work is forgiven when filing adjustment of status based on marriage to a USC.

What the person needs to do is complete and file her I-130/I 1-485 applications ASAP.

Edited February 16, 2007 by jane2005

[Killer_Clown_2009 0]

Addie,

The fact that she overstayed her Visa and worked illegally won't affect her AOS whatsoever. Go look up the special rules that apply to spouses of USC's adjusting status. She entered the US legally. She is married to a USC. If her marriage is bonafide and she doesn't have a criminal history and/or a communicable disease that would affect her adjustment, there is a good chance that her application process will be pretty smooth.

Edited February 16, 2007 by jane2005

[Dr_LHA 3]

Jane is 100% correct here, both illegal work and overstay are forgiven if you're married to a USC. USCIS cannot use illegal work or overstay as a reason for denial of AOS.

[DelcoCouple 1]

Jane is 100% correct here, both illegal work and overstay are forgiven if you're married to a USC. USCIS cannot use illegal work or overstay as a reason for denial of AOS.

Subject of course to the caveat that AOS is a discretionary benefit. They do not strictly need a reason to deny it as there is no automatic right to it.

[Killer_Clown_2009 0]

It does seem odd though that she'd come to the US as a tourist and start working right away and then manage to have either a SSN or ITIN to use in order to file taxes.

[Killer_Clown_2009 0]

Jane is 100% correct here, both illegal work and overstay are forgiven if you're married to a USC. USCIS cannot use illegal work or overstay as a reason for denial of AOS.

Subject of course to the caveat that AOS is a discretionary benefit. They do not strictly need a reason to deny it as there is no automatic right to it.

And what percentage of AOS applicants do you think are denied with no reason given?

.0000001 %?

[DelcoCouple 1]

Jane is 100% correct here, both illegal work and overstay are forgiven if you're married to a USC. USCIS cannot use illegal work or overstay as a reason for denial of AOS.

Subject of course to the caveat that AOS is a discretionary benefit. They do not strictly need a reason to deny it as there is no automatic right to it.

And what percentage of AOS applicants do you think are denied with no reason given?

.0000001 %?

I have no idea and if it is your petition that is denied you really wont give a damn what the percentage is as it is pretty irrelevant. As there is in effect no review of a discretionary refusal I am not sure where the figures you ask for may be found.

The fact remains the benefit is discretionary. Often the assumption is made in this forum that it is a right. Whilst in the vast majority of cases it is plain sailing the possibility of denial is still very much a possibility. It is important that readers understand it is discretionary, not mandatory. It is possible for a person who is technically eligible for immigrant status to nonetheless be denied adjustment of status in the exercise of that discretion. The most common instances of such discretionary denials involve cases where the applicant abused the nonimmigrant process. For example, if a person applies for admission into a school or for a change in nonimmigrant status within 30 days of entry, they are presumed to have acted in bad faith. That is, they had the preconceived intent to make the change and they used an easier to obtain visa in order to evade the normal screening process abroad for the visa they really wanted.

If an AOS applicant has anything in his or her past visa history that suggests that he or she may have abused the visa process, or otherwise tried to take shortcuts, the USCIS has made it clear that they can and will deny such adjustment applications in the exercise of discretion. Discretionary AOS refusals are not subject to administrative review. While federal court review is theoretically possible, few judges are willing to attempt to substitute their judgment for that of USCIS officers in the absence of gross abuse of discretion.

The point you raised about starting work immediately after entering on VWP would tend to ring alarm bells to me as a case where such discretion may be a consideration and as such a competent Immigration Attorney would seem a wise choice in light of the limited amount of information given.

Edited February 16, 2007 by DelcoCouple