AOS & Deportation Worries

[GKB 1]

Hi Everyone,

 

I was wondering if anyone had experience with filing an I-485 Adjustment of Status close to when their ESTA was about to expire? 

 

My husband and I have been working on the CR1 process since last year and we were almost at the end (NVC approved case on March 12th and his embassy interview was scheduled for April 17th) until this whole coronavirus thing exploded.  My husband came into the US via his ESTA on January 4th and was scheduled to leave on March 28th but around the middle of March we started becoming concerned due to the virus.  I was keeping track of flights and noticed all the flights going to Manchester were being cancelled but when I contacted the airline they couldn't give me any information.  I reached out to the NVC on March 19th and they told me to contact USCIS.  The agent at USCIS told me I would be able to file the I-485 and my husband wouldn't be in violation of overstay (even after the 90 day point).  Our I-130 was approved last year so I gathered all the paperwork and sent to USCIS the next day (it was delivered on March 25th).

 

However.. CBP emailed him on March 23rd letting him know his admission would be ending in 10 days and he needed to leave or else he would be in violation of his ESTA.  I emailed them and explained the situation and they said he would have to apply for Satisfactory Departure.  I called USCIS again, was forwarded to a level two officer, and he wasn't able to give me any information about the I-485 but said we should comply with the CBP and request satisfactory departure.  We're now waiting on a call back from USCIS to schedule an emergency appointment (they said they would get back to us in 24-48 hours so we should receive a call back by the end of the day). 

 

I am just extremely worried about this entire thing.  We basically only have until Monday/Tuesday to get the Satisfactory Departure and I don't want him to be in violation of his ESTA or have to face deportation.  I've been reading a lot about filing an I-485 while on ESTA online and I found this USCIS memorandum (https://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf) which seems to be in our favor, but the basis of removal seems iffy to me.  Yes, USCIS received our I-485 on March 25th, but that doesn't mean it's considered filed yet - right? 

 

We never had the intention of adjusting status when he came in which I feel is clear between our past visits (he's always left before 90 days and remained out of the country for several months before returning) AND the fact that we were almost finished with the CR1 (why would we apply for AOS if we already paid all of the NVC fees and submitted that paperwork)?  The only reason we're doing this is because of a pandemic that we didn't really expect to happen.  Will they be in our favor or not care?

 

If anyone has any experience in this I would really appreciate it!

 

Thank you!

Edited March 27, 2020 by GKB

[payxibka 10,047]

Slow down and relax.   Wait for the i485 receipt.  You have done everything you can at this moment. 

[GKB 1]

Just now, payxibka said:

Slow down and relax.   Wait for the i485 receipt.  You have done everything you can at this moment. 

Thank you for the reply, I really appreciate it.   It's been such a nightmare and I'm so worried about him being deported.  I've never broken the law in my life lol, I haven't even gotten a speeding ticket.  Go figure a pandemic would happen right towards the end of this process.

[Boiler 45,853]

There seems to one post a day on this subject, well this is the second one I have seen today. So have a read of those as well.

[Crazy Cat 42,028]

5 minutes ago, GKB said:

It's been such a nightmare and I'm so worried about him being deported. 

Once a proper I-485 was filed, he was granted authorized stay pending the adjudication of the adjustment of status...no need for worry about that.  @Boiler is correct.  There have been a number of these same questions over the last week.....

[payxibka 10,047]

Everyone thinks they are either unique or the first ever to be in the situation 

[Dashinka 24,697]

19 minutes ago, payxibka said:

Everyone thinks they are either unique or the first ever to be in the situation 

Every once in a while there is a unique case.

 

To the OP, I agree with the other posters, you can relax and let the system work.  You properly filed for the AOS, and once the NOA is received, you will be fine.

 

Good Luck!

[JFH 12,191]

There are bigger concerns for the authorities now than the spouse of a USC who may end up overstaying by a few days. But kudos to you for doing things the right way and being aware that immigration is a serious matter. 
He won’t be deported for the overstay (if he even accrues any - the I-485 NOA1 might have been issued and dated already but just not received). He’s a long way from that. 

Edited March 28, 2020 by JFH

[Duke & Marie 1,389]

6 hours ago, GKB said:

Hi Everyone,

 

I was wondering if anyone had experience with filing an I-485 Adjustment of Status close to when their ESTA was about to expire? 

 

My husband and I have been working on the CR1 process since last year and we were almost at the end (NVC approved case on March 12th and his embassy interview was scheduled for April 17th) until this whole coronavirus thing exploded.  My husband came into the US via his ESTA on January 4th and was scheduled to leave on March 28th but around the middle of March we started becoming concerned due to the virus.  I was keeping track of flights and noticed all the flights going to Manchester were being cancelled but when I contacted the airline they couldn't give me any information.  I reached out to the NVC on March 19th and they told me to contact USCIS.  The agent at USCIS told me I would be able to file the I-485 and my husband wouldn't be in violation of overstay (even after the 90 day point).  Our I-130 was approved last year so I gathered all the paperwork and sent to USCIS the next day (it was delivered on March 25th).

 

However.. CBP emailed him on March 23rd letting him know his admission would be ending in 10 days and he needed to leave or else he would be in violation of his ESTA.  I emailed them and explained the situation and they said he would have to apply for Satisfactory Departure.  I called USCIS again, was forwarded to a level two officer, and he wasn't able to give me any information about the I-485 but said we should comply with the CBP and request satisfactory departure.  We're now waiting on a call back from USCIS to schedule an emergency appointment (they said they would get back to us in 24-48 hours so we should receive a call back by the end of the day). 

 

I am just extremely worried about this entire thing.  We basically only have until Monday/Tuesday to get the Satisfactory Departure and I don't want him to be in violation of his ESTA or have to face deportation.  I've been reading a lot about filing an I-485 while on ESTA online and I found this USCIS memorandum (https://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf) which seems to be in our favor, but the basis of removal seems iffy to me.  Yes, USCIS received our I-485 on March 25th, but that doesn't mean it's considered filed yet - right? 

 

We never had the intention of adjusting status when he came in which I feel is clear between our past visits (he's always left before 90 days and remained out of the country for several months before returning) AND the fact that we were almost finished with the CR1 (why would we apply for AOS if we already paid all of the NVC fees and submitted that paperwork)?  The only reason we're doing this is because of a pandemic that we didn't really expect to happen.  Will they be in our favor or not care?

 

If anyone has any experience in this I would really appreciate it!

 

Thank you!

😂😂😂😂 welcome to my club...

 

our I485 was recorded as delivered yesterday too.. relax, await the receipt 

[African Zealot 1,455]

Once you have filed the I485 who cares about satisfactory departure? 😂🤣😂

[madala 32]

On 3/28/2020 at 7:27 AM, Ray.Bonaquist said:

Once you have filed the I485 who cares about satisfactory departure? 😂🤣😂

It sounds funny to you but it is not for people like me who are in similar situation. Filing the application and having it delivery, without having the receipt, could become a bigger issue. Everyone knows how irrational these immigration officer can be....What if they return the forms for any small error? then its no just a few days of illegality; it might take a few weeks again...During that time, anything can happen....and the beneficiary might be banned for a very long time, at least in my opinion...

[Villanelle 4,122]

On 3/27/2020 at 11:24 AM, GKB said:

Thank you for the reply, I really appreciate it.   It's been such a nightmare and I'm so worried about him being deported.  I've never broken the law in my life lol, I haven't even gotten a speeding ticket.  Go figure a pandemic would happen right towards the end of this process.

Please dont worry about this. Not to repeat too much of what was already said- once a NOA is generated he will be considered to be in a 'period of auth stay'. Now thats not a status technically- it just means like it sounds- he is authorized (or allowed) to stay in the US while his AOS is processed. Also just FYI- once he overstays past 90 days on his ESTA he will (or would) never be allowed to use ESTA again. This is probably N/A since he is going to get a greencard, but if he does have to leave the US before he has his GC make sure he has his advance parole. If he leaves with out AP (or his GC) he will not be allowed back to continue his AOS. He would have to go back to consular processing and if he wanted to visit during it he would need to get a B visa. Its unlikely he would be able to get one since he overstayed and filed for AOS and has a pending CR. 

 

Also with out getting too technical there are differences in immigration law between those who entered illegally (without inspection) and those who are visa overstays. Yes, they both have no valid legal status but there is a huge difference in the way overstays are treated vs illegal entry. On this PDF- page 14- https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf  it gives a brief overview of overstays. Im assuming he is not a threat to national security or public safety- so even if you do not get the NOA before his 90 day esta is up they are not going to come looking for him. 

 

Once the 90 days are up- until you get the NOA he should avoid borders or places where there is an ICE presence. Worst case scenario if he did encounter ICE at that time- ICE could detain him. Most likely they wont waste resources on that but they could if they are so inclined. He could be held until he presents his NOA (again worst case and the odds of such happening are very low).