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

[pushbrk 12,898]

You may disagree with me, but I would still argue that concurrent I-130/I-485 is pretty much filing out forms. I have seen it said here that you are a lawyer yourself, so naturally you would argue that a lawyer's service is needed.

I am not a lawyer and have not argued that a lawyer's services are needed. I've stated that, to think of filing AOS as nothing more than filling out forms is a prescription for failure. The case we're discussing right now is clear evidence of that. At the very least, AOS includes knowing whether you qualify, which forms to provide, how to fill them out correctly, which supporting documents are needed and how to prepare evidence of relationship and prepare for the interview.

Many can do this themselves with or without the help of Visa Journey but when a professional manages the process, they do more than "fill out forms". It's just a fact, not even arguable.

[pushbrk 12,898]

Yeah I'm confused about what exactly the lawyer CAN do for my case. He said juet yesterday he won a case for a woman who had overstayed her visa waiver for five years and had married an american.... but how could he have done that if theyrr denying the applications outrright?

The Brazilian case was not a VWP case. I have no doubt the attorney could be successful in a visa overstay case. Yours would be a VWP overstay and it appears there has been a recent drastic change in how you kind of case is handled. Make sure the attorney is aware of the current conditions regarding your specific situation before hiring them.

[Vuvu zela 9]

Yeah I'm confused about what exactly the lawyer CAN do for my case. He said juet yesterday he won a case for a woman who had overstayed her visa waiver for five years and had married an american.... but how could he have done that if theyrr denying the applications outrright?

He may have done it before the new immigration reforms on VWP over-stayers went into effect recently.

From what I've read so far, the new laws on VWP were implemented this year (few months ago).

Which is a complete different ball game now that some are facing deportation because they overstay their VWP.

Make sure your lawyer is aware of the changes before giving him any kind of money.

That's why I suggested you can go to the appointment if you wish.

Just keep us posted.

Wish you the best!

[Deputy Purple 1,294]

He may have done it before the new immigration reforms on VWP over-stayers went into effect recently.

From what I've read so far, the new laws on VWP were implemented this year (few months ago).

Which is a complete different ball game now that some are facing deportation because they overstay their VWP.

Make sure your lawyer is aware of the changes before giving him any kind of money.

It's not any new law, it a case of USCIS changed the way they handle VWP Overstays and the Circuit Court agreed that they don't have jurisdiction to even hear an appeal based on the fact that VWP entrants waive any right to appeal USCIS decisions.

That's why I said what's the point of having a new [however valid] angle to argue when the Circuit Court has already said they can't hear the appeal or a petition to re-open the case because they don't have jurisdiction.

[coraliesolms 47]

In my opinion.. The risk is there that adjusting status from VWP will result in deportation and LOADS of heartache. However, if he leaves soon, and you guys file for CR-1 then there will only be a little bit of heartache and perhaps 8-10 months of seperation. As you stated, you have known eachother FOREVER and you were seperated for a few months at a time until you discovered your attatchment to eachother, this will be a small wait compared to the rest of your lives together!

I would go with the safest route.. also, you will then have saved $2500 in attorneys fees!

Hope whatever decision you makes works out for you!

[ATPEACE 43]

In my opinion.. The risk is there that adjusting status from VWP will result in deportation and LOADS of heartache. However, if he leaves soon, and you guys file for CR-1 then there will only be a little bit of heartache and perhaps 8-10 months of seperation. As you stated, you have known eachother FOREVER and you were seperated for a few months at a time until you discovered your attatchment to eachother, this will be a small wait compared to the rest of your lives together!

I would go with the safest route.. also, you will then have saved $2500 in attorneys fees!

Hope whatever decision you makes works out for you!

$2500 saved in attorney fees, can be used for airfare to see each other.

[Boiler 45,525]

The AoS VWP route is confused, if you asked a few months ago you would have got a very different response.

And being in CA you are in the worst location.

It has gone from a very low risk strategy to medium/high.

None of us can tell you what to do, we do not know your risk tolerance.

[Myopia 93]

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 **

I honestly believe that you have a problem with people who try to adjust status who overstayed when using the visa waiver program. There is nothing wrong with having an opinion or disliking what has been called "adjustment express" but to answer a legitimate query in this way was quite irresponsible. Its one thing to offer advise based on the current climate but quite another to respond in the way that you did.

You gave terrible advise in this post.

There are many who have successfully adjusted on the VWP. That doesnt mean that every one will be able to successfully adjust but there are many who have been able to adjust. Yes it depends on which district you live in, whether there was an immigration memo, whether you feel like rolling the dice, whether you prayed hard enough, whether you...you get the picture? But ultimately we should give people the advise they want without inventing carte blanche rules that do not exist yet. (Unless you have the memo that we are all waiting for?)

[VanessaTony 3,567]

I honestly believe that you have a problem with people who try to adjust status who overstayed when using the visa waiver program. There is nothing wrong with having an opinion or disliking what has been called "adjustment express" but to answer a legitimate query in this way was quite irresponsible. Its one thing to offer advise based on the current climate but quite another to respond in the way that you did.

You gave terrible advise in this post.

There are many who have successfully adjusted on the VWP. That doesnt mean that every one will be able to successfully adjust but there are many who have been able to adjust. Yes it depends on which district you live in, whether there was an immigration memo, whether you feel like rolling the dice, whether you prayed hard enough, whether you...you get the picture? But ultimately we should give people the advise they want without inventing carte blanche rules that do not exist yet. (Unless you have the memo that we are all waiting for?)

I don't know what your problem is. There was nothing wrong with the advice. I told the truth.

The OP posted in the K3 forum hence my first sentence. I then clarified and said "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.". I also wrote a further post where I clarified more. In case you didn't read further, here it is: http://www.visajourney.com/forums/topic/286367-portuguese-husbands-vwp-90-days-almost-up-help/page__view__findpost__p__4341143

Care to point out where I was wrong? VWP adjusters ARE being denied if their I-94 is expired. VWP adjusters ARE being put on indefinite hold if their I-94 is expired. VWP are fine if they get their file accepted (NOA1 date) before the I-94 expires. Sure one once in a while it is totally fine but it COMPLETELY irresposible to respond with "SURE! Go ahead. You'll have no problems". I told the truth. I'm sorry you can't handle that.

**Edit - The OP is in CA. This is the place denying VWP overstayers outright. The OP has been given advice that is basically the same as mine. I say "basically" because others went into further detail than I did. Did you read the entire thread? Please read the thread, especially those that mention CA and how this affects the OP directly and then come back and tell me I was wrong.

Edited December 11, 2010 by Vanessa&Tony

[Lexlee08 18]

I agree with Vanessa & Tony on this one I think it is more irresponsible to give advise that people want. Ultimately it is still the OP's decision, like what almost everybody agreed upon here take the safer route to lessen the troubles later on.

[Myopia 93]

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

Hey there,

You got some really good advise from Jim and Harpah. I really think you should go back to their posts and read them carefully.

I know you want to believe your attorney so why not ask him for the actual case details.

The district that you live in definetly have a memo that says that all adjustments such as your husbands should be denied. Theres no getting around that at this time.

If your family is wealthy then they would probably not mind helping you and your husband take the CR1 route that would probably be a whole lot easier at this point for you both.

I hope it all works out for you. Even though you are just a name on an internet board you have a real story just like the rest of us.

All the best

[Myopia 93]

I don't know what your problem is. There was nothing wrong with the advice. I told the truth.

The OP posted in the K3 forum hence my first sentence. I then clarified and said "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.". I also wrote a further post where I clarified more. In case you didn't read further, here it is: http://www.visajourney.com/forums/topic/286367-portuguese-husbands-vwp-90-days-almost-up-help/page__view__findpost__p__4341143

Care to point out where I was wrong? VWP adjusters ARE being denied if their I-94 is expired. VWP adjusters ARE being put on indefinite hold if their I-94 is expired. VWP are fine if they get their file accepted (NOA1 date) before the I-94 expires. Sure one once in a while it is totally fine but it COMPLETELY irresposible to respond with "SURE! Go ahead. You'll have no problems". I told the truth. I'm sorry you can't handle that.

**Edit - The OP is in CA. This is the place denying VWP overstayers outright. The OP has been given advice that is basically the same as mine. I say "basically" because others went into further detail than I did. Did you read the entire thread? Please read the thread, especially those that mention CA and how this affects the OP directly and then come back and tell me I was wrong.

Based on what you said initially which was that because he entered on a visa waiver he couldn't adjust. That is where I got my information from.

I don't have a problem. I think you do but my opinion doesn't matter nor does it add any flavor to the sauce does it?

Where do you get the probability ratio that her adjustment would have been placed on indefinite hold(which isnt true as there is an imminent memo) and/or denied out right? At the time of your response you didn't even know which district her husband would be filing in! You didn't mention the possibility that she could adjust successfully be it at her own risk and no its not just "once in a while". There are many who have adjusted successfully in those districts that haven't had the rulings and/or memos. You didn't mention that.

I just think when you respond you should give good advise that's balanced with all the facts and not just the ones that are closest to your heart.

I read the entire thread and I am comfortable with what I said.

[Justine+David 218]

I'm just a little surprised that the original poster is pretty much ignoring all of this advice from multiple people and following the advice of a lawyer, who are generally useless in most immigration cases.

OP, be aware that if you roll the dice and get denied (which being from Cali, is a slam dunk, looks like), he will ALSO end up with a 3 year ban if he over stays by 180 days and a 10 year ban if he overstays a year. I wouldn't roll that dice for my husband..I care far too much about him to risk that. But to each their own.

I genuinely hope that you will take this advice that we have given as this is a free community giving advice with no expectations or want of reward...whereas the lawyer will only get money if you get him to take your case, even if there isn't a chance of it being approved.

[newlyweds2010 208]

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!

I wouldn't pursue that. VWP overstayers don't even go in front of an immigration judge if USCIS denies their AOS. They are immediately deportable. I don't see what the lawyer could win, since basically it is in the sole discretion of the IO that will conduct the interview to either approve or deny your case.

And given the 9th Circuit and Momeni v Chertoff and the memo and yadda yadda, you will be denied. So your husband will be deported, your future visa journey will be much more complicated, and on top of everything you'll also have thrown $2500 down the drain.

[JimVaPhuong 4,863]

This is not really dramatically new. The Momeni case was back in 2008. These changes have been brewing for a while. It's only been this year that people have begun to become aware of a dramatic new pattern with the USCIS field offices, as more and more field offices have changed their policy. Mr. Sapochnick (who wrote the article I provided the previous link for) is only one of several lawyers to have witnessed this new pattern and written about it.

Here is a similar article from the law offices of Millie Cavanaugh in Los Angeles:

http://www.cavanaughlegal.com/adjustment-of-status-aos/adjustment-of-status-green-card-through-marriage/

In the article, they cite that roughly half of USCIS field offices are denying AOS for VWP overstays as a matter of policy. I have no idea where they get those statistics from, or if they're even valid. That article was written back in May of this year, so we can only presume that more USCIS field offices have taken a position on this by now.

Mercedes Badia-Tavas wrote an article in February 2009 that explains the case law that led to the current situation quite well, and even gives a list of some specific USCIS field offices describing how each was handling AOS petitions for VWP overstays:

She specifically mentioned that no adverse action had been reported for the San Diego field office at the time the article was written, but Mr. Sapochnick's article makes it obvious that this has since changed. Ms. Badia-Tavas' article says she could not get a confirmation or denial from the San Francisco field office, but they responded that they are generally bound by 9th Circuit Court decisions.

The information about AOS petitions being put on indefinite hold is anecdotal, but it's valid, having come from the personal experience of several VJ members.

The situation is obviously very fluid, and it's no surprise that many immigration lawyer's are not yet completely aware of what's going on at their own local USCIS field office. This would be especially true of an immigration lawyer in California, as most deal overwhelmingly with cases from Latin America. It would take more than a few cases before they would begin to notice a new pattern. Add to this the fact that the lawyer is not going to get a chance to follow through with the case - no motion to reopen, no hearing in front of an immigration judge, no appeal to the BIA. The case effectively ends when the immigration officer issues the denial notice. USCIS isn't compelled to give any concrete reason for denying the AOS, other than to say that they've used the discretion the law gives them in doing so, because the applicant has no opportunity to appeal the decision. The attorney may not know that the AOS was denied because of the overstay.

malucarlinha, I don't know if your lawyer is being honest with you, or just telling you what you want to hear. Immigration attorneys run the gamut, from dedicated and hard working professionals to absolute sleaze balls. You should approach the hiring of an attorney just as you would the hiring of an employee. You need to ask educated questions during the initial interview to determine if the lawyer really knows what they are doing, and if they are really being honest with you. Unfortunately, many people don't do this. By the time they show up in a lawyer's office they are desperate. A sleaze ball lawyer senses the desperation, and tells you that they can help you as soon you sign a check, even if they know darn well you're destined to fail.

Print out the articles I linked to. Spend a little time with google and find other articles from other attorneys. Give preference to articles written recently by lawyers in California. Ask your lawyer about the Momeni case, and what impact it's had on AOS applications at the USCIS office in San Francisco. Ask how many AOS cases the lawyer has handled for VWP overstays in the last six months, and what the outcome was in each case. If the attorney isn't forthcoming with the information, or seems to give evasive answers, then find another attorney.

People often ask "Well, what's the risk if we try and fail? We can still do the spousal visa, right?". The risk is an order of deportation, and the potential trauma of your husband being tossed in a holding cell until they escort him to the airport and put him on a plane. The order of deportation comes with a minimum five year ban from the US. He would never be able to use the VWP to come to the US again, and would need an I-212 hardship waiver in order to get ANY visa to return before the ban expires. The spousal visa would be denied at the interview, and that's when you'd have to submit the I-212 waiver application. You may not need a lawyer to fill out the paperwork for the AOS application, but you'd have a difficult time successfully getting an I-212 waiver without a good immigration lawyer, and you can expect the attorney fees to be a lot more than an AOS application.

In a nutshell, the risk if you try the AOS and fail is that it will become dramatically more difficult to get a spousal visa then it would if you never tried the AOS.