Portuguese Husband's VWP 90 days almost up! HELP!

[malucarlinha 0]

Hi all, I'm new here but in some serious need of advice!

So, I've been dating a long time friend of mine on and off since I was 16. Nothing too serious, plus he lives him London and I spend most of my free time in Rio de Janeiro Brazil. Anyway, he met me in Rio last June (2010) and we started getting more serious. On his way back to London in september 2010, he stopped here to visit me and his cousin who also lives here and just had a baby. We ended up completely falling in love and realizing that we have to be together, no matter where we are in the world, so we got hitched. I have no problem moving to Europe, but my parents are here and I want to help them out for a few more years, plus I just got a degree in my field (I'm an animator) and would love to get some experience before moving overseas. So basically:

-My husband arrived September 16

-We were married Oct 16 (coincidentally I realized later that we probably should have waited- but we were way too excited with our decision)

-We have not filed the I-130 or the I-485 yet because we were told to file it all together, and he needs to get his portuguese birth certificate still (not even his mother has it they've moved so much)

-Next Wednesday, the 15th will be his 90th day here.

-My family is pretty wealthy, so we have a great co-sponsor, but we do not have the cash (the two of us) to spend on lawyers and penalties.

My question is, how bad is it if he is a few days "illegal" until they send us a notice that they received our application? If we get it all in the mail say, by Monday, his 88th day here and send it over night, should we be alright? Is it better if he goes back to Europe for a couple days and comes back in on his visa waiver? Or will we get in trouble for bringing him in as a tourist when hes really coming in to stay? My instinct tells me he should stay...

any help would greatly be appreciated!!

Thanks

[pushbrk 12,898]

Hi all, I'm new here but in some serious need of advice!

So, I've been dating a long time friend of mine on and off since I was 16. Nothing too serious, plus he lives him London and I spend most of my free time in Rio de Janeiro Brazil. Anyway, he met me in Rio last June (2010) and we started getting more serious. On his way back to London in september 2010, he stopped here to visit me and his cousin who also lives here and just had a baby. We ended up completely falling in love and realizing that we have to be together, no matter where we are in the world, so we got hitched. I have no problem moving to Europe, but my parents are here and I want to help them out for a few more years, plus I just got a degree in my field (I'm an animator) and would love to get some experience before moving overseas. So basically:

-My husband arrived September 16

-We were married Oct 16 (coincidentally I realized later that we probably should have waited- but we were way too excited with our decision)

-We have not filed the I-130 or the I-485 yet because we were told to file it all together, and he needs to get his portuguese birth certificate still (not even his mother has it they've moved so much)

-Next Wednesday, the 15th will be his 90th day here.

-My family is pretty wealthy, so we have a great co-sponsor, but we do not have the cash (the two of us) to spend on lawyers and penalties.

My question is, how bad is it if he is a few days "illegal" until they send us a notice that they received our application? If we get it all in the mail say, by Monday, his 88th day here and send it over night, should we be alright? Is it better if he goes back to Europe for a couple days and comes back in on his visa waiver? Or will we get in trouble for bringing him in as a tourist when hes really coming in to stay? My instinct tells me he should stay...

any help would greatly be appreciated!!

Thanks

Overstays are forgiven in legitimate adjustment of status cases based marriage to a US Citizen.

[VanessaTony 3,567]

As you posted in this area I'm sure you're aware that you can't apply for him to adjust his status from within the US.

If the VWP wasn't ending so soon you would be fine, but because it is you can't possibly get them to receive and process your file in time and your AOS with either be put on indefinite hold, or denied outright.

You need to file the I-130 and he will leave the US to process a CR-1 visa while he is in his home country.

** moved from "K3 Process & Procedures" to "CR-1/IR-1 Process & Procedures" as the K3 visa is no longer available **

[pushbrk 12,898]

As you posted in this area I'm sure you're aware that you can't apply for him to adjust his status from within the US.

If the VWP wasn't ending so soon you would be fine, but because it is you can't possibly get them to receive and process your file in time and your AOS with either be put on indefinite hold, or denied outright.

You need to file the I-130 and he will leave the US to process a CR-1 visa while he is in his home country.

** moved from "K3 Process & Procedures" to "CR-1/IR-1 Process & Procedures" as the K3 visa is no longer available **

The above is incorrect. He certainly CAN adjust status from within the USA. This thread belongs in the AOS forum, not here. That his allowed visit is about to run out is of no consequence EXCEPT that if he does not leave in time, he'll need to stay until the AOS process is complete and that if not successful, VWP entry precludes any appeal of an AOS denial.

[VanessaTony 3,567]

The above is incorrect. He certainly CAN adjust status from within the USA. This thread belongs in the AOS forum, not here. That his allowed visit is about to run out is of no consequence EXCEPT that if he does not leave in time, he'll need to stay until the AOS process is complete and that if not successful, VWP entry precludes any appeal of an AOS denial.

No he can't. He can try, but lately when the VWP has expired they are being denied. Where have you been that you think his AOS will be okay??? There are about 20 million posts telling people NOT to try and AOS when their VWP is expired..

--

OP he is correct in that it USED to be there was no problem. Now there are many issues with trying to AOS with an expired VWP (expired B2 or student or whatever is fine, this is specific to VWP). However as he doesn't believe me, I will move this to AOS (Other) and allow others in your situation reply and let you know the risks.

** moved from "cR1 process & Procedures" to "AOS (Other)" as Pushbrk is convinced the OP will have no issues AOSing from an expired VWP **

Overstays are forgiven in legitimate adjustment of status cases based marriage to a US Citizen.

Unless they're on the VWP and their authorised stay has expired. In these cases they're put on indefinite hold, or denied outright depending which circuit they're in (again Jim knows more about this circuit stuff)

Edited December 10, 2010 by Vanessa&Tony

[Penguin_ie 5,993]

He cannot leave and come back to stay, that is immigration fraud.

Do your very best to send in the AOS before his time is up, because lately, VWP overstays have been denied AOS or had very long delays in processing.

[Krikit 1,164]

Merging multiple threads.

[malucarlinha 0]

He cannot leave and come back to stay, that is immigration fraud.

Do your very best to send in the AOS before his time is up, because lately, VWP overstays have been denied AOS or had very long delays in processing.

So if I get everything in (post-marked) before his stay is up, then he should be alright? I mean, I guess he'll technically be in limbo.... I don't want to commit visa fraud, that's why this is so stressful. we're trying to obey the very confusing laws without having to be separated from one another.

another issue is his birth certificate- his portuguese one (he has both a brazilian and a portuguese- but he is applying as a portuguese citizen since he entered the country as one) is m.i.a., and we're trying to get his mother (in brazil) to send us another one, or at least write an affidavit. If she wrote an affidavit certifying his birth, would it matter that:

- his certificate of birth was brazilian, and all the rest of his i.d. is portuguese?

- If he were to send in his Brazilian birth certificate, would it matter that it was a copy, translated by me?

Should I send the I-131 and the EAD forms together with the I-130 and the AOS? I read somewhere that the fees for the I131 and the AOS were waived if sent in together with the other two big ones, can anyone verify this?

Thanks gain for everyones help

[JimVaPhuong 4,863]

So if I get everything in (post-marked) before his stay is up, then he should be alright? I mean, I guess he'll technically be in limbo.... I don't want to commit visa fraud, that's why this is so stressful. we're trying to obey the very confusing laws without having to be separated from one another.

No. The postmark date is irrelevant. The AOS petition must be accepted by USCIS before his authorized stay has expired. This means the date on his first Notice Of Action must be before his authorized stay expires. It would be a minor miracle for his AOS petition to actually be accepted by USCIS by this coming Wednesday. 9 or 10 days is a more reasonable estimate. The petition package is not going to be processed into the system the day it's received. USCIS simply doesn't move that fast.

What will matter is his current status on the day USCIS accepts his AOS petition. If you're applying in California then I can guarantee his AOS petition will be denied if he's out of status when the AOS petition is accepted by USCIS. California is covered by the 9th Circuit Court, which is where the Momeni v. Chertoff case was heard. This was one of the most significant landmark cases that established a VWP overstay cannot adjust status. USCIS field offices in California are denying AOS for VWP overstays and ordering them deported. One attorney in San Diego saw the USCIS memo, and wrote in his blog about it:

http://www.visalawyerblog.com/2010/09/visa_waiver_overstay_and_marri_1.html

another issue is his birth certificate- his portuguese one (he has both a brazilian and a portuguese- but he is applying as a portuguese citizen since he entered the country as one) is m.i.a., and we're trying to get his mother (in brazil) to send us another one, or at least write an affidavit. If she wrote an affidavit certifying his birth, would it matter that:

- his certificate of birth was brazilian, and all the rest of his i.d. is portuguese?

- If he were to send in his Brazilian birth certificate, would it matter that it was a copy, translated by me?

He can't have been born in both Brazil and Portugal. He may be a Portuguese citizen, but it sounds like he was born in Brazil. You'd send a copy of his Brazilian birth certificate AND an English translation. If you're fluent in English and Portuguese then you can translate it.

Should I send the I-131 and the EAD forms together with the I-130 and the AOS? I read somewhere that the fees for the I131 and the AOS were waived if sent in together with the other two big ones, can anyone verify this?

Thanks gain for everyones help

Yes, the AP and EAD fees are waived if they are filed concurrently with the AOS application.

[Brother Hesekiel 2,236]

You can file an I-130 petition for your husband NOW. He'll return to London before his I-94 expires and you'll the pursue the CR-1 visa. Once issued, he'' ll enter the US as a lawful permanent resident and will get his Green Card in the mail. No AOS, no problems.

[pushbrk 12,898]

Given the information (Sorry, news to me) I would make sure he leaves the USA before his authorized stay expires and take the spouse visa route.

[juliava 80]

You can file an I-130 petition for your husband NOW. He'll return to London before his I-94 expires and you'll the pursue the CR-1 visa. Once issued, he'' ll enter the US as a lawful permanent resident and will get his Green Card in the mail. No AOS, no problems.

+1.

Unfortunately you don't have enough time to file a complete AOS package. It looks like there is a birth certificate issue and I don't think your spouse completed a medical exam either. Both take time and money. Consequently if you file for AOS right now without those docs, which is possible, you will face not just uncertainity and probably a denial, but also a bunch of RFEs. Not a fun and safe journey at all.

Edited December 10, 2010 by juliava

[malucarlinha 0]

Hi all, so I spoke to a lawyer in my area who pretty much promised me that he could get my case through. He said that he was recently won a couple AOS with VWP overstayers. He said he needed a 1000$ deposit and $1500 over the course of the next two months. He is a friend of a friend, and he did her case too- she came from brazil on a tourist visa about ten years ago and then just never left.

The lawyer told me everything would be fine, and scheduled and appointment for us on monday.

Does this sound right?

Thank you again, I cant believe this nightare is happening, i seriously just want some sleep!

[malucarlinha 0]

Whats an RFEs?

[Harpa Timsah 13,258]

No, it sounds like a straight-up lie. They can't promise anything, and... Did you read that link Jim put here? It said there was a memo in CA that went out in the last month that said from now on, all VWP overstay cases MUST be denied at interview. I think it was San Diego but there is reason to believe it would apply state-wide. All of this is really new... stuff happening in the last few months. This lawyer probably was successful last year or before. Ask him/her if he has done any VWP from overstay cases this year... or in the last 2 months.

Also, $2500 to fill out some forms? Yikes.

Also, this Brazilian friend came on a tourist visa (B-2). Overstay is not a problem for people who enter on tourist visas. The VWP is not a visa... and it has become a whole other story.

Edited December 10, 2010 by Harpa Timsah