AOS after an overstay on a VWP

[Blue22 0]

Ok so I am soooooo confused.

I am English and I came here in Nov 2006 on the VWP. My VWP expired in Feb 2007, and by then my boyfriend and I (who had been together for over a year by then, traveling around the world together for that time) decided that we would like to set up home here in California and get married once my divorce had come through (it takes 2 years in the UK). So before my status expired I spoke to an immigration lawyer (referral from a friend) told him my story , and he said I would be fine to stay as long as I was going to apply for AOS based on marriage. Therefore the overstay would not be a problem. I was wary at first but, then 6 months to a year then we could apply was better than being away from my boyfriend, with the possibility for only a few visits.

Anyway I got my divorce through and we got married in Feb 2008, it took us until Sept 2008 to get the funds together to pay the lawyer and USCIS etc. When we went to the lawyer he then told us that due to the Momeni v Chertoff case that my case would be denied and I would be placed in deportation proceedings. At this time we were pregnant so I was extremely scared of this possibility. The lawyer then said we should wait to see if the local USCIS offices and case managers (?) start to become more forgiving of cases like mine again.

Nothing has changed from then til now. My husband and I had discussed moving to another state as the cost of living in CA is so high. I mentioned this to my lawyer as I wanted to know the implications for me and my immigration status if we did move. He said that it may help as we would be under a different Court Circuit (the 9th Circuit is the one that held the Momeni v Chertoff case. so are now supposedly very strict on VWP overstay AOS.).

We are still working on moving, but unfortunately my husband is finding slim pickings as far as jobs are concerned.

Now I am very confused after doing a lot of research, some people applied since 2008 for AOS after overstay on VWP and have ended up being arrested by ICE, put in custody and deported. Then there are some that successfully got their AOS.

I am very worried and do not want to risk deportation or being detained as I am a full time mom of our 18 month old, and that would just be terrible.

Any stories of your own experience in similar circumstances in CA and all other states since 2008 would be much appreciated!!

Thank you =)

[engineer21 51]

When we went to the lawyer he then told us that due to the Momeni v Chertoff case that my case would be denied and I would be placed in deportation proceedings. At this time we were pregnant so I was extremely scared of this possibility. The lawyer then said we should wait to see if the local USCIS offices and case managers (?) start to become more forgiving of cases like mine again.

I don't have personal experience and I'm not a lawyer.. but I wanted to point out that there is a difference between your situation and the Momeni c Chertoff case. This could be a good thing..

Momeni and his wife applied for AOS after he was taken into custody and ordered removed, which IMO, makes a (perhaps huge?) difference.

I would think it is harder to get AOS approval if the AOS is filed after removal proceedings have started.

In your case (hopefully) you would be applying for AOS long before that ever happens..

I know there are plenty of people here who overstayed on VWP.

They will come along soon, I'm sure

Best of luck to you whatever you decide to do..

[Blue22 0]

I don't have personal experience and I'm not a lawyer.. but I wanted to point out that there is a difference between your situation and the Momeni c Chertoff case. This could be a good thing..

Momeni and his wife applied for AOS after he was taken into custody and ordered removed, which IMO, makes a (perhaps huge?) difference.

I would think it is harder to get AOS approval if the AOS is filed after removal proceedings have started.

In your case (hopefully) you would be applying for AOS long before that ever happens..

I know there are plenty of people here who overstayed on VWP.

They will come along soon, I'm sure

Best of luck to you whatever you decide to do..

Yeah, that's what we thought but I lawyer informed us the case workers are now denying overstay on VWP just because of overstay, not just if you were caught first then applied. It is sooo frustrating, seems like a real gamble on the results depending on who your case manager is...........

Thanks for the luck.....need something! Just want to get it sorted.

[belinda63 3,038]

It's always a gamble to come to the US marry and file for AOS. Although some disagree I don't think it is worth the risk. In your case the biggest problem will now be why you waited so long to apply. All I can say at this point is roll the dice and go from there, it's can't be any worse than the situation you are in now. I mean face it something as simple as a traffic ticket could result in your detention and deportation. At least if the AOS is denied you should have some warning.

Edited July 30, 2010 by belinda63

[Blue22 0]

I don't have personal experience and I'm not a lawyer.. but I wanted to point out that there is a difference between your situation and the Momeni c Chertoff case. This could be a good thing..

Momeni and his wife applied for AOS after he was taken into custody and ordered removed, which IMO, makes a (perhaps huge?) difference.

I would think it is harder to get AOS approval if the AOS is filed after removal proceedings have started.

In your case (hopefully) you would be applying for AOS long before that ever happens..

I know there are plenty of people here who overstayed on VWP.

They will come along soon, I'm sure

Best of luck to you whatever you decide to do..

This explains my situation and the Momeni v Chertoff issue pretty well:

"In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment.

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires. CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants' ability to apply for permanent residency in the U.S."

[Nyte 1]

This explains my situation and the Momeni v Chertoff issue pretty well:

"In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment.

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires. CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants' ability to apply for permanent residency in the U.S."

The applicant in that case applied for AOS AFTER being placed into removal proceedings. The OP's case seems to be a bit different.

[Nyte 1]

The applicant in that case applied for AOS AFTER being placed into removal proceedings. Is the OP in removal proceedings?

Edited July 31, 2010 by Nyte

[JimVaPhuong 4,863]

The applicant in that case applied for AOS AFTER being placed into removal proceedings. The OP's case seems to be a bit different.

You were responding to the OP.

megaty,

Momeni's AOS was not denied because of the overstay. INA section 245(c ) is clear that general requirement that an applicant has maintained their non-immigrant status does not apply to an immediate relative of a US citizen. Momeni's AOS was denied because of the "no contest" rule for VWP entrants. Momeni was in deportation proceedings which could not be appealed or contested by Momeni because of the VWP entry, and CIS could not adjudicate the AOS application without stopping the deportation proceedings. A VWP entrant waives any right to appeal any removal proceeding except on the basis of any asylum application. The court decision succinctly said: "Momeni has not sought asylum from Germany. That, basically, is the end of the case."

The Momeni case has not significantly changed the way that USCIS adjudicates AOS cases for VWP entrants. They didn't accept Momeni's AOS application after removal proceedings had begun, and they won't accept them now after removal proceedings have begun. Your chances of successfully adjusting status under the VWP have always been especially risky, and they still are. If you apply and are denied then you must leave or be deported. The decision cannot be reviewed. They won't deny based on the overstay, but they can deny for practically any discretionary reason.

Another interesting point about the Momeni case is that he knew he could not request an appeal or review with USCIS, so his first action was to seek relief in a US district court. The court refused to accept the case citing that they had no jurisdiction over challenges to removal orders. Momeni took his case to the 9th circuit court, this time challenging the court that if it did not accept jurisdiction then it would be accepting that the the REAL ID act could deprive courts of habeas jurisdiction in violation of the Suspension Clause of the Constitution. The 9th circuit court even questioned their own jurisdiction in the ruling, but accepted the case in order to avoid the constitutional conflict raised by Momeni.

You are currently in the US in violation of law. You could be caught by US immigration at any time and held in custody pending deportation. If that happens, it will be too late to try to adjust status. You also cannot work legally, and cannot leave the US without being banned.

You could apply for AOS. If it's approved then your worries are over. If it's denied then you must leave the US. You'll receive a 10 year ban for your overstay. Your husband can apply for an IR1 visa. You'll be denied at the interview, and then your husband can submit a hardship waiver petition. You have a child together so you have a pretty good shot at the waiver.

Either way, you roll the dice and take your chances.

[Blue22 0]

You were responding to the OP.

megaty,

Momeni's AOS was not denied because of the overstay. INA section 245(c ) is clear that general requirement that an applicant has maintained their non-immigrant status does not apply to an immediate relative of a US citizen. Momeni's AOS was denied because of the "no contest" rule for VWP entrants. Momeni was in deportation proceedings which could not be appealed or contested by Momeni because of the VWP entry, and CIS could not adjudicate the AOS application without stopping the deportation proceedings. A VWP entrant waives any right to appeal any removal proceeding except on the basis of any asylum application. The court decision succinctly said: "Momeni has not sought asylum from Germany. That, basically, is the end of the case."

The Momeni case has not significantly changed the way that USCIS adjudicates AOS cases for VWP entrants. They didn't accept Momeni's AOS application after removal proceedings had begun, and they won't accept them now after removal proceedings have begun. Your chances of successfully adjusting status under the VWP have always been especially risky, and they still are. If you apply and are denied then you must leave or be deported. The decision cannot be reviewed. They won't deny based on the overstay, but they can deny for practically any discretionary reason.

Another interesting point about the Momeni case is that he knew he could not request an appeal or review with USCIS, so his first action was to seek relief in a US district court. The court refused to accept the case citing that they had no jurisdiction over challenges to removal orders. Momeni took his case to the 9th circuit court, this time challenging the court that if it did not accept jurisdiction then it would be accepting that the the REAL ID act could deprive courts of habeas jurisdiction in violation of the Suspension Clause of the Constitution. The 9th circuit court even questioned their own jurisdiction in the ruling, but accepted the case in order to avoid the constitutional conflict raised by Momeni.

You are currently in the US in violation of law. You could be caught by US immigration at any time and held in custody pending deportation. If that happens, it will be too late to try to adjust status. You also cannot work legally, and cannot leave the US without being banned.

You could apply for AOS. If it's approved then your worries are over. If it's denied then you must leave the US. You'll receive a 10 year ban for your overstay. Your husband can apply for an IR1 visa. You'll be denied at the interview, and then your husband can submit a hardship waiver petition. You have a child together so you have a pretty good shot at the waiver.

Either way, you roll the dice and take your chances.

Hi

Yeah I realize the difference, but my lawyer and one other is stating this:

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires. CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants' ability to apply for permanent residency in the U.S."

Like I posted before therefore it is much risker for me to apply now, I am waiting for us to move then we will be out of the 9th Circuit. According to my lawyer we actually have six months from beginning of application to move, so I'm waiting for my husband to get a firm job offer and my app for AOS will be in!! Don't want to chance it before then due to job market right now.

All your points are valid..........my choices:

1. Possibly get caught by waiting.

2. Apply now and still be in the 9th Circuit in 6 months time, then face a much riskier decision.

3. Wait for confirmation of job/move then apply, waiting in the meantime......

Thanks for your input =)

[JimVaPhuong 4,863]

Ok, let's not get ahead of ourselves.

The article you quoted is, in my opinion, misinformed. INA 245(c ) is quite clear on this. There is a general requirement that an alien must maintain their lawful non-immigrant status in order to be eligible to adjust status, but this requirement DOES NOT APPLY to the immediate relative of a US citizen.

Because of the "no contest" stipulation in a VWP entry, the IO who reviews the case has the legal power of God. They can deny for reasons that probably would not be upheld in an appeal. However, even with this power, they have to use a valid reason for denial. Preconceived intent, for example, would be a valid reason (hence the risk applying within 90 days of entry). Because of the exception for an immediate relative of a US citizen in INA 245(c ), they can't use the overstay as a reason for denial - it simply does not apply.

The attorney who wrote the article is, in my opinion, misreading the decision in the Momeni case. Momeni was being deported because he overstayed his VWP entry. The removal proceedings were irrevocable, unstoppable, unappealable - because of the "no contest" rule for VWP entrants. His subsequent AOS filing could not be accepted because the removal proceedings could not be stopped. His AOS application was not denied because of the overstay (which I've already stated is irrelevant) but because he was in removal proceedings.

By all means, get a copy of the 9th district court ruling in the Momeni case, and also a copy of INA section 245. Go over both of them with your attorney. Your overstay is not relevant, and nothing in the Momeni case changes that.

As far as option #2 in your list, you should understand that there is no automatic progression through the federal courts of appeal. Your case will not go to the 9th circuit court unless you live in the district covered by that court, and you file an appeal in that court. You would be filing a LAWSUIT against an agency of the US government - USCIS, in this case. This would happen ONLY if you pursued it, and ON YOUR DIME! You would be responsible for all of the legal fees, and it definitely won't be cheap.

Ok, so by your numbers:

1. Wait for what? Amnesty? There's nothing to wait for. You don't have legal status now, and you won't get legal status in the future unless you take some action. Living as an illegal alien is no way to live.

2. See above. There's no reason you would have to go to the 9th circuit court, or any federal appeals court, and you wouldn't win even if you did.

3. I'm not sure what waiting for job/move means, but if you mean applying for AOS, then YES - absolutely. Is it a risk? Of course. You could be denied. The consequences of denial are the same as if you were busted by ICE - you would have to leave or face deportation. The only difference is that the consequences would be immediate. But, you have a chance of being approved. THIS is what your attorney should be helping you with - improving your chances of approval. If you are denied then your attorney can help your husband begin preparing the CR1 filing and the inevitable hardship waiver petition. You aren't going to get legal status by waiting.

[Boiler 45,525]

http://britishexpats.com/forum/showthread.php?t=651746&highlight=momeni

For a longer discussion. Basically the same as you have been told here.

You obviously are not in good place now, not being able to drive etc with a child must be tricky.

CIR (amnesty) is a long way of and it is by no means clear if it happens whether you would be any better of.

[JimVaPhuong 4,863]

http://britishexpats.com/forum/showthread.php?t=651746&highlight=momeni

For a longer discussion. Basically the same as you have been told here.

You obviously are not in good place now, not being able to drive etc with a child must be tricky.

CIR (amnesty) is a long way of and it is by no means clear if it happens whether you would be any better of.

Meh. What I saw was a bunch of people regurgitating the oft repeated notion that VWP entrants can't adjust status after they've overstayed their entry. Any immigration attorney will tell you that VWP entrants with overstays adjust status all the time, even after the court cases cited in that thread. When USCIS receives an AOS application, they do what they're supposed to do - they adjudicate the application. The risk is that you might just be calling attention to yourself, and after reviewing your case USCIS might just conclude you aren't a very nice person, and instead of accepting your AOS application they trigger a 217(b) removal for the overstay. This is what happened in the case of Bayo v. Napolitano. Bayo was a native of Guinea who entered using the VWP with a fake Belgian passport.

Stephen Manning writes on the AILA Slip Opinion blog that USCIS continues to proceed adjudicating the majority of AOS applications from VWP entrants with overstays.

USCIS field offices continue to adjudicate (as they should) VWP entrant adjustment applications filed past the 90-day period. We are aware of the language in both Momeni and Bayo that, out of context, suggests otherwise. Momeni, 521 F.3d at 1096-97; Bayo, 593 F.3d at 507. But we think that Judges Kleinfeld and Wood were more interested in literary flair rather than a legal statement.

http://www.ailaslipopinionblog.org/category/adjustment/

The bottom line is that you take a risk either way. If you attempt to adjust status before the 90 days have expired then you risk a denial based on the conclusion that there was preconceived intent, and are immediately placed in removal with no possibility of appeal. If you attempt to adjust status after the 90 days have expired then you risk triggering removal rather than having your AOS application adjudicated. If you are a VWP entrant with more than 180 days accumulated overstay, then you risk removal and a subsequent ban either way. You have nothing to lose, and potentially much to gain, if you send an AOS application, unless you consider remaining an illegal alien indefinitely to be a viable option. Unless you come from a 3rd world s**thole, most people wouldn't consider that to be an option.

[Boiler 45,525]

We are getting of topic here a bit.

The pre conceived intent bit comes up a lot, in practice is seems that you really have to be obvious about it. And even then you will probably get lucky.

Obviously anything you read on these forums is slightly suspect, but I have read posts from people who have married shortly after arriving and filed soon after and still have not had it mentioned even in passing.

Back to topic:

Odds of being picked up and deported vs having an adjustment of status fail and being deported.

If it was me, I would adjust.

[Bobby+Umit 161]

Adjust now - don't wait and see what happens.

Sitting there doing nothing is the worst thing you could do.

[JimVaPhuong 4,863]

We are getting of topic here a bit.

The pre conceived intent bit comes up a lot, in practice is seems that you really have to be obvious about it. And even then you will probably get lucky.

Obviously anything you read on these forums is slightly suspect, but I have read posts from people who have married shortly after arriving and filed soon after and still have not had it mentioned even in passing.

Back to topic:

Odds of being picked up and deported vs having an adjustment of status fail and being deported.

If it was me, I would adjust.

Agreed. If it was me, I'd also try to adjust.

We've discussed preconceived intent on this board before. The general rule is that the intent is an adverse factor that, by itself, doesn't outweigh the positive factor of being the immediate relative of a US citizen. In a 'normal' case, an IO wouldn't use it by itself as a basis to deny an AOS application. The BIA precedent cases will beat them down on appeal. The problem with a VWP entrant is that there will be no appeal. The IO knows that his/her decision is not subject to review, so any statutorily viable reason can be used for denial. Stephen Manning mentioned the seeming contradiction of recommending a client attempt to adjust status within 90 days when preconceived intent can be used against a VWP entrant in circumstances where it could not be used against someone who entered with a tourist visa, for example.

I don't even think about the odds of being nabbed by ICE as being relevant. Statistically, the odds are pretty remote. In the meantime, you'd be a non-person. You can't legally get a license to drive (in all but a few states). You can't work, unless you happen to like spending your days hanging out in front of Home Depot and getting an occasional back breaking gig for dirt poor wages. You can't leave the country and hope to return. Even traveling domestically by commercial carrier is a risk. For most intents and purposes, you're a lump of warm flesh occupying space. It's hard to imagine that sort of existence being preferable to returning to your home country to pursue legal immigration, or better yet spinning the AOS wheel and taking your chances.