I-485 Denied.

[cheekymonkey 0]

I have just found out the dreaded news that my I-485 has been denied

My husband (USC) and I (UK) got married in April 2009 when I was within my VWP. We didn't file our paperwork until July 2010 due to lack of finances and taking care to fill in everything correctly as we didnt have a lawyer to help us.

In Early December we had our interview which seemed to go very well and my husband recieved notification that the I-130 has been approved. We were then just waiting for my greencard to come through but instead we recieved notice that my I-485 has been rejected. This obviously came as quite a shock and my husband and I are devastated at the thought of having to be apart, especially as my overstay may result in a 10yr ban.

The letter states that as I did not file my AOS within my 90 visa waiver I have overstayed and therefore been denied.

Does any one have any advice for me? I have heard that having to file within the 90 days is a new policy and changed after I put in my paperwork. Do I have a case to re-open? Should I go back to England and file a CR1? Will I be banned for 10yrs and how will this affect the CR1?

Please help my husband and I are so afraid of the prospect of having to be apart

[thatbritishlass 2]

I have just found out the dreaded news that my I-485 has been denied

My husband (USC) and I (UK) got married in April 2009 when I was within my VWP. We didn't file our paperwork until July 2010 due to lack of finances and taking care to fill in everything correctly as we didnt have a lawyer to help us.

In Early December we had our interview which seemed to go very well and my husband recieved notification that the I-130 has been approved. We were then just waiting for my greencard to come through but instead we recieved notice that my I-485 has been rejected. This obviously came as quite a shock and my husband and I are devastated at the thought of having to be apart, especially as my overstay may result in a 10yr ban.

The letter states that as I did not file my AOS within my 90 visa waiver I have overstayed and therefore been denied.

Does any one have any advice for me? I have heard that having to file within the 90 days is a new policy and changed after I put in my paperwork. Do I have a case to re-open? Should I go back to England and file a CR1? Will I be banned for 10yrs and how will this affect the CR1?

Please help my husband and I are so afraid of the prospect of having to be apart

I am sorry you're going through this. I'm not going to pretend to know the details of this situation but suggest you read this that I saw on a different website a few weeks ago (and remembered when I saw your post): http://britishexpats.com/forum/showthread.php?t=651746

In summary USCIS are taking more of a stand on cases where the non-USC applies to adjust status after the 90 days of VWP has expired (even if the marriage took place within the 90 days) - they are not obliged to approve you, and can deny the application on that basis. It is a 'can', and not a 'will', but at this point it may be a good idea to consider getting some professional advice. I'm sure there are some people out there on VJ who have been there though, and can give you more helpful advice Good luck!

[milimelo 4,477]

Moving to AOS from tourist, student, work visa.

[TracyTN 237]

Unfortunately, VWP cases are denied with no chance of appeal if you did not file the I 485 within the 90 day period, which you didn't. The part of VWP adjustments that has always bothered me is this no chance for appeal clause, and I don't think a lot of people are aware of that (even if they file w/in the 90 days and are denied for another reason). That has always been in place, but the enforcement of filing within the 90 day window is a relatively new development, yes.

I would highly suggest a consultation with an immigration attorney, particularly one who deals with AOS denials - but I'm not really sure what options you have. An attorney familiar with the new enforcement should be able to tell if the fact that you filed your form before the change would make a difference. If it's like other USCIS changes, it probably won't but it's worth asking.

I can't remember if this means you've now incurred a ban or not. Am going to re-read that thread that Miss Jess cited and see if it says.

Can he not move back to the UK with you?

[TracyTN 237]

Post 33 in that thread seems to indicate that there will be a 10 year ban in place once deported. ETA the only way that should effect the IR1 would be that you have to wait 10 years before you can apply.

I would still consult with an immigration attorney about this and make sure you have no other options available to you.

Edited January 25, 2011 by TracyTN

[YuAndDan 153]

Post 33 in that thread seems to indicate that there will be a 10 year ban in place once deported. ETA the only way that should effect the IR1 would be that you have to wait 10 years before you can apply.

I would still consult with an immigration attorney about this and make sure you have no other options available to you.

Can always file an I-130 for a petition return home, and later if there is a Bar an I-601 would be filed to get the bar waived. But yes an overstay of 1 year or longer prior to filing the I-485 probably will result in a 10 year bar.

This is where a competent lawyer may need to be consulted.

[Brother Hesekiel 2,236]

Your petition is dead for good. What you need to find out now is whether or not you have been ordered deported. They may give you 30 days to leave the country voluntarily or not. Depends.

Yes, you'll trigger the 10-year bar when leaving the US, and you'll have to get an I-601 waiver approved in order to reenter. I would not be surprised if you also have been ordered deported, which will require another waiver, the I-212, to be submitted. Both waivers will require proof of extreme hardship to your husband (not you!) if you can't return and also proof that he would not be able to live in the kingdom with you. As you may imagine, that's nightmare stuff and you'll need a top notch lawyer specialized in waiver cases. The one that comes to mind is Laurel Scott. She is the only one that maybe able to help you to return to the US before 2021.

http://www.scottimmigration.net/content/about-us

[SaraDee 9]

Hi,

I just wanted to express my sympathy for your situation. I really have no advice on the legal front, but I wish you luck and strength in the weeks and years to come.

Best

Sara

[VanessaTony 3,567]

I have just found out the dreaded news that my I-485 has been denied

My husband (USC) and I (UK) got married in April 2009 when I was within my VWP. We didn't file our paperwork until July 2010 due to lack of finances and taking care to fill in everything correctly as we didnt have a lawyer to help us.

In Early December we had our interview which seemed to go very well and my husband recieved notification that the I-130 has been approved. We were then just waiting for my greencard to come through but instead we recieved notice that my I-485 has been rejected. This obviously came as quite a shock and my husband and I are devastated at the thought of having to be apart, especially as my overstay may result in a 10yr ban.

The letter states that as I did not file my AOS within my 90 visa waiver I have overstayed and therefore been denied.

Does any one have any advice for me? I have heard that having to file within the 90 days is a new policy and changed after I put in my paperwork. Do I have a case to re-open? Should I go back to England and file a CR1? Will I be banned for 10yrs and how will this affect the CR1?

Please help my husband and I are so afraid of the prospect of having to be apart

Unfortunately there is no appeal process for people AOSing from the VWP. This isn't a new policy, it's always been there, just rarely enforced. Denial of people AOSing from the VWP is a new thing yes BUT the rule has always been there, just rarely enforced.

Unfortunately your husband has been out of status of a while. He's violated the rules of his visa (or in this case VWP) by overstaying past the date they allow. He's definitely not the first person to do it but he pretty much has no recourse.

In his denial letter, did it tell him that he has a certain number of days to leave (usually 30 days)? Does it state that he isn't in removal proceedings yet? If so this is good and he NEEDS to leave before the deadline and then he doesn't have the deportation issue to get a waiver for.

In order to know what kind of ban you might have we need to know:

1. When did his VWP expire? (exact date)

2. When did he file for AOS? (exact date)

3. When was his AOS denied? (exact date)

Now something I've never been sure about is whether the overstay from the time you filed to when you were denied counts. I know that you're in a period of authorised stay for that period and that the clock is supposed to stop ticking but once you're denied I don't know if that then counts against you. I'm not sure how CBP knows that you were protected for X days because your I-94 says you arrived on X date.. hopefully someone else can tell you for sure. I've tried looking but I can't find anything that mentions it specifically (maybe i'm just using wrong search terms).

What I do know is, if he has 180 days of overstay that's a 3 year ban. Over 365 days of overstay is a 10 year ban. Deported is 10 year ban (the bans don't add together but each ban requires a different waiver).

He will need to file for CR-1 but I think (and someone else can confirm this) that your I-130 can be transferred to the overseas embassy so you don't need to file that again and you can just apply for the CR-1 visa straight away. I don't know how to do this but that could lessen the wait time. Unfortunately though that time saved will be more than taken up by how long the waivers will take (if they work).

I'm sorry this happened to you. Good luck.

**Note - occasionally I say "you" and "your status" but I mean the immigrant in these cases obviously

[juliava 80]

I don't know whatelse I could add to this , other that I am very sorry for your situation!

Would you be able to tell us in what state do you reside?

Also, it would be useful for you to answer the questions that Vanessa adressed above. Chances are very, very slim for triggering only the 3 years bar, but you never know...

[Harpa Timsah 13,258]

Even with a denial, the time when the petition was pending is not considered unlawful presence. (Jim has quoted where but I don't remember where exactly). They don't retroactively count those days against you.

OP - I am very sorry for your situation. Can you tell us what state you are in for people that are tracking this? Thanks.

[Glyn and Kathy 288]

Wow, I'm so sorry for all you are going through. I don't have any advice, just wishing you luck.

[JimVaPhuong 4,863]

OP - I am very sorry for your situation. Can you tell us what state you are in for people that are tracking this? Thanks.

More specifically, which USCIS field office?

[Myopia 93]

Maybe this will help you. There seems to have been some movement in the government regarding Visa Waiver Overstays and there may be some hope for you.

Recent Update

Particularly this section, "

Bottom line, the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust status based on marriage to a US Citizen Spouse.

I remember someone saying somewhere that the decision is made by the district office director..so you may be able to try to get some kind of appeal with him/her in order to adjust your case. So there may be a way to get the removal order lifted.

If I find anything else I will post it for you.

[jrmejia 31]

Best of luck