USCIS agent Verbally Denied my AOS at Interview

[RamonGomez 272]

No matter what happens with you, all the solutions going forward involve your wife naturalizing. Don't listen to all the overly harsh posters here. Yes you (and to some extent USCIS) screwed up - that's in the past. Now is the time to look forward and make the best with the ammo you have.

 

First step: you wife files the N400 ASAP. 

 

English is not an excuse for someone that's been here so long. There are free online English classes she can take. There are tons of workbooks that cost <$20 on Amazon, a million YouTube videos for ESL students, she can even hire online English tutors for as little as $15/hour to do a few mock interviews. Start speaking only English in your household. Whenever you watch TV or YouTube - only English. Practice the test questions inside out. Before our I485 interview my wife translated all the words she wasn't familiar with on the petition and made flash cards which she studied beforehand. I also recorded the questions and she listened to them over and over. You and your wife should do the same for the N400. 

 

She can do this but she's gotta buckle down.

 

Second step: you need a lawyer, ASAP. I'm not sure if you can appeal the I485 denial, but perhaps you can stay in the US long enough to refile the I485 (which should be sent off the day she naturalizes - have this ready to go!). Even in the worst case scenario, deportation orders can be suspended (https://www.shouselaw.com/ca/immigration/deportation-defense/). A lawyer would be able to give you all the options - this is where they make the big money, unfortunately. One more time - get a lawyer.

 

Good luck. I think you have a chance.

Edited February 11, 2021 by RamonGomez

[SusieQQQ 11,587]

Appealing the i485 denial would be a waste of time and money. There is no doubt it was correctly denied. The best option is for the wife to naturalize as soon as she can and file again. 

[SalishSea 18,218]

7 minutes ago, RamonGomez said:

I'm not sure if you can appeal the I485 denial,

It wasn't denied in error, so no.

[Crazy Cat 42,547]

1 hour ago, RamonGomez said:

Deportation can be suspended

There was no USCIS error in this case, so there are no grounds for appeal. In addition, my understanding is that deportation cannot be delayed in this case.  When a person overstays VWP, there is no court or judge...and there is no NTA.  That is supposed to deter VWP visitors from illegally staying and attempting to adjust status.  ICE can pick him up at any time or any place, and swiftly deport. At least, that is how I see it...but I am no attorney.

Edited February 11, 2021 by Lucky Cat

[neca 166]

File the N400 yesterday, this is a matter that is top priority. She has time to study while waiting for it to process.

The longer you put the N400 off, the more likely you will being deported.

 

I'm also of the opinion you need a lawyer. I understand that you were the only one working and that they are expensive, but would you rather be able to stay and have to pay, or to risk making another mistake and being deported? I'm not talking about a consultation here, you need someone more familiar with your case than an hour or so of time is going to provide. I also hope you're not still working. Your wife getting a job will help her learn English and allow you precious time to spend with your kids if you do end up having to leave.

 

Good luck, friend. I'm sorry that you have to go through this. This process is difficult under the best of conditions.

[Crazy Cat 42,547]

2 minutes ago, neca said:

I'm also of the opinion you need a lawyer.

What can an attorney do?  

[neca 166]

Just now, Lucky Cat said:

What can an attorney do?  

At the very least, I think they can ensure that no more mistakes are made while waiting for this to work itself out. It seems like their initial mistake wouldn't have happened if they had understood the instructions better. I've also read hearsay of things going more smoothly with one. Thinking they'll also have advice for what to do for him in the meantime to keep him from being deported, maybe be able to parse out what he meant about the officer asking for a letter in two weeks.

 

I can always be wrong!

[Crazy Cat 42,547]

2 minutes ago, neca said:

parse out what he meant about the officer asking for a letter in two weeks.

I think the officer meant that the OP would be getting an official letter of denial in about two weeks.  

[neca 166]

1 minute ago, Lucky Cat said:

I think the officer meant that the OP would be getting an official letter of denial in about two weeks.  

That would make sense. I just reread the post and think I interpreted it initially as the officer needing him to send something, not him being sent anything.

[Crazy Cat 42,547]

3 minutes ago, neca said:

That would make sense. I just reread the post and think I interpreted it initially as the officer needing him to send something, not him being sent anything.

Of course, I could also be wrong......but there will no chance for the OP to dispute or challenge the decision, or to even challenge any removal actions, imo.  Overstaying VWP waives certain rights.  I think it normally takes a couple weeks for letters to process.

Edited February 11, 2021 by Lucky Cat

[SusieQQQ 11,587]

Just to clarify for those who are thinking of appeal. OP has three different reasons (bars to adjustment) why an adjustment was denied:

1. You cannot adjust status if you entered on VWP

2. You cannot adjust status if you worked illegally

3. You cannot adjust status if you overstayed.

All those transgressions are forgiven for spouse (or other immediate relative category) of citizens, but none of them are forgiven for spouse of LPR (or any other type of family based, employment or diversity adjustment for that matter).

[RamonGomez 272]

33 minutes ago, neca said:

At the very least, I think they can ensure that no more mistakes are made while waiting for this to work itself out. It seems like their initial mistake wouldn't have happened if they had understood the instructions better. I've also read hearsay of things going more smoothly with one. Thinking they'll also have advice for what to do for him in the meantime to keep him from being deported, maybe be able to parse out what he meant about the officer asking for a letter in two weeks.

 

I can always be wrong!

Your suggestion of lawyer is spot on. Where we live there have been cases where people who entered the US illegally have been able to somehow prolong their deportation process for years in the courts. I don't see what OP has to lose by speaking to a very competent attorney. The immigration process is not perfect by any means and is constantly changing, and in theory ICE could have picked him up any time in the past 15 years for overstaying, even during the draconian Trump era, but they didn't.

 

An attorney could also, as you said, advise what to do next. He many be able to tell OP whether to stay put in the US (perhaps the odds of him actually getting deported are super low in the attorney's experience), or to leave and do the process abroad to minimize the chances of further issues. No one here knows - it's all speculation by armchair attorneys. I'd much rather speak to a real attorney who has been through this process many times in the past and is familiar with all the relevant court rulings, than listen to the endless harsh comments, rehashed platitudes, and "legal advice" on here.

 

People have beat the system before.

Edited February 11, 2021 by RamonGomez

[Crazy Cat 42,547]

2 minutes ago, SusieQQQ said:

Just to clarify for those who are thinking of appeal. OP has three different reasons (bars to adjustment) why an adjustment was denied:

1. You cannot adjust status if you entered on VWP

2. You cannot adjust status if you worked illegally

3. You cannot adjust status if you overstayed.

All those transgressions are forgiven for spouse (or other immediate relative category) of citizens, but none of them are forgiven for spouse of LPR (or any other type of family based, employment or diversity adjustment for that matter).

Exactly.  I'm sure there are many "real" attorneys out there who would gladly take the OP's money, then tell him exactly what you so accurately stated.  

[Liam2021 587]

The denied is properly, so getting a lawyer is useless since it not USCIS mistake. Also, apply for N400 will took about a year from start to finish. During that time, the chance of deportation still at large. So, it just a matter of personal choice.

[HRQX 4,145]

1 hour ago, RamonGomez said:

and is familiar with all the relevant court rulings

Bradley v. Holder and similar cases are very relevant: https://casetext.com/case/bradley-v-attorney-general-of-us

"Although the VWP affords visitor aliens with great flexibility and convenience, those benefits come at a cost. Most significantly, a VWP visitor must waive his or her right to contest the government's admissibility determinations and removal actions, except that the alien may contest removal actions on the basis of asylum. 8 U.S.C. § 1187(a)-(b). Accordingly, a VWP applicant must, prior to admission, present U.S. officers with a "completed, signed Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Form," 8 C.F.R. § 217.2(b)(1), expressly waiving, inter alia, any "right . . . to contest, other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. § 1187(b)(2). This requirement is iron-clad. Indeed, a VWP applicant "may not be provided a waiver under the program unless" the alien has signed a VWP waiver, id., and an applicant who does not sign will be refused admission and removed, see 8 C.F.R. § 217.4(a)(1).

For a VWP entrant, the effects of this no-contest provision are severe. A VWP entrant waives the right to assert any non-asylum objection to his removal. 8 U.S.C. § 1187(b)(2). Additionally, unlike the ordinary removal case, a VWP entrant's removal "shall be determined by the district director who has jurisdiction over the place where the alien is found, and shall be effected without referral of the alien to an immigration judge for a determination of deportability." 8 C.F.R. § 217.4(b). But as the Court of Appeals for the Ninth Circuit has recognized, given the ease and convenience with which a VWP visitor may enter the United States, the VWP's "linchpin . . . is the waiver, which assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede his removal if he overstays." Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005)."

"Bradley's position has already been rejected by six of our sister Courts of Appeals, and we now join them in doing the same. As the Court of Appeals for the Seventh Circuit explained in Bayo,

Quote

at first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255(c)(4), and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer examination, however, we believe that they can be reconciled. During the time when a nonimmigrant visitor is within the VWP's 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays her 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status.

Bayo, 593 F.3d at 507. We agree and hold that, although Bradley was once statutorily eligible under 8 U.S.C. § 1255(c)(4) for the adjustment he now seeks, he may not, after the expiration of his 90-day stay, adjust his status as a defense to removal. Bradley's VWP waiver squarely forecloses him from contesting his removal on this basis.

Contrary to Bradley's contention, the decision of the Ninth Circuit Court of Appeals in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), does not compel another result. Although that case ruled the VWP's no-contest clause inapplicable when "a VWP visitor properly files an adjustment of status application," id. at 1035, the court subsequently narrowed that decision to cover only VWP entrants who petition to adjust their status during their lawful 90-day stay, see Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008). Thus, after Momeni, a VWP entrant in the Ninth Circuit may contest her removal on the basis of an adjustment-of-status petition filed during her lawful 90-day stay, but as in the other Courts of Appeals, not on the basis of a petition filed after that period. See Lacey, 499 F.3d at 519 n. 6 (emphasizing that Freeman does not apply to adjustment of status petitions filed by VWP overstays). Thus, even if we adopted Freeman, that decision would be unavailing to Bradley, who petitioned for an adjustment of status years beyond the expiration of his authorized stay. Consequently, we conclude that Bradley's VWP waiver forecloses him from contesting  his removal via a petition for adjustment of status."

Edited February 11, 2021 by HRQX