What Sates have been denying Visa Waiver Overstays?

[Lisa011 6]

Im AOS thru my U.S Citizen Spouse from a Visa waiver overstay

Came here when i was 12 with my parents and have stayed here ever since Im now 21 i had no idea that i was here illegally up until i was 19 years old

I dont understand why my parents never filled for papers when we first came here,

Our marriage interview is in less then 2 weeks and im starting to get extremely nervous Im on pins and needles i know that these couple of days are going to take forever!

i have heard some states have been denying visa waiver overstays not really sure which ones?

I keep going on this forum everyday to see if anyone knows of anyone thats recently tried adjusting status from vwp overstay.

Im hoping that someone can response to this and let me know if they have heard of anything.

I knew going into this that i was taking a risk, but i did what i had to do, I cant live in a Shadow all my life there really wasnt any other option.

Edited January 27, 2011 by Lisa011

[LIFE'SJOURNEY 970]

Im AOS thru my U.S Citizen Spouse from a Visa waiver overstay

Came here when i was 12 with my parents and have stayed here ever since Im now 21 i had no idea that i was here illegally up until i was 19 years old

I dont understand why my parents never filled for papers when we first came here,

Our marriage interview is in less then 2 weeks and im starting to get extremely nervous Im on pins and needles i know that these couple of days are going to take forever!

i have heard some states have been denying visa waiver overstays not really sure which ones?

I keep going on this forum everyday to see if anyone knows of anyone thats recently tried adjusting status from vwp overstay.

Im hoping that someone can response to this and let me know if they have heard of anything.

I knew going into this that i was taking a risk, but i did what i had to do, I cant live in a Shadow all my life there really wasnt any other option.

You just didn't look hard enough, they are posted. Here is the latest denial.

http://www.visajourney.com/forums/topic/292498-i-485-denied/

[Lisa011 6]

You just didn't look hard enough, they are posted. Here is the latest denial.

http://www.visajourney.com/forums/topic/292498-i-485-denied/

Yes i did actually see that one, but that person lives in San diego and California 9th circuit has been known to deny some visa waiver overstays for quite the time now.

Edited January 27, 2011 by Lisa011

[juliava 80]

Lisa - just my 2 cents...

I know you are very nervous about your interview and if I were you I would feel the same.

Don't focus on negative stuff as AOS denials. There are many examples on this forum and it's not hard to find them, but why reading them? stay positive, or think about something else even if it's quite difficult to. Otherwise the remaining days until interview will be very miserable.

I wish you good luck and I will keep my fingers crossed for you!!

[Lisa011 6]

Lisa - just my 2 cents...

I know you are very nervous about your interview and if I were you I would feel the same.

Don't focus on negative stuff as AOS denials. There are many examples on this forum and it's not hard to find them, but why reading them? stay positive, or think about something else even if it's quite difficult to. Otherwise the remaining days until interview will be very miserable.

I wish you good luck and I will keep my fingers crossed for you!!

Thank you!

Yea i know my husband has been telling me to stop looking on the forum or else im going to drive myself crazy, I know that everyones situation is different I was just hoping for some good answers to calm myself.

[Brother Hesekiel 2,236]

Lisa,

good to see you made it here. The two VJ members who are most knowledgeable about which USCIS offices are denying AOS from VWP overstay are JimVaPhuong and HarpaTimsa. You'll hear from at least one of them very soon.

[Harpa Timsah 13,258]

Oh, thanks for your vote of confidence Bob!

Lisa, I think we discussed this when you first submitted the app, and I couldn't think of any Chicago cases I had heard of, positive or negative (are you in Chicago per your profile?). I don't know all the offices that are denying, but I make a point to check which office if I hear any report of VWP overstay. I don't remember anything for Chicago or the 7th district. The offices that I know have been denying/putting on hold are San Diego, as you know, and Philadelphia.

I agree with Juliava that you should just calm down as much as possible and go forward. I know you must be in a fit of anxiety. I have hope the IO will see you were brought here as a child and act accordingly... by issuing an approval. Good luck.

[JimVaPhuong 4,863]

The information that's available about this stuff is culled together from various websites. There have been no formal statements from USCIS about this, so all of the evidence is anecdotal. The attorney's blog about the San Diego field office seems pretty concrete - he saw the field office director's memo - and we've seen denials from that field office that seem to confirm what the attorney said. I think I also saw a denial from the San Francisco field office with the same results. That doesn't mean that all field offices in the 9th circuit are doing the same, though.

Anyway, the circuit courts that have issued rulings about this are the 3rd, 5th, 6th, 7th, 9th, and 10th. I'm pretty sure I'm missing one, but I don't recall which and I can't find it in my bookmarks. Illinois is covered by the 7th circuit. The precedent setting case in the 7th Circuit Court was Bayo v Napolitano.

http://caselaw.findlaw.com/us-7th-circuit/1505660.html

At first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255©(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.

Pay close attention to the wording of the decision. They're not saying you have to actually be in removal proceedings before an AOS application would represent a challenge to removal. The fact is that a VWP overstay waives their right to any review or appeal, so there would be no removal proceedings. They are saying that someone becomes immediately removable when they overstay a VWP entry, and that an AOS application at that time constitutes a request for a stay of removal. The VWP waiver makes them ineligible to make that request.

Now, I can't find any specific AOS cases out of the Chicago field office lately, so I don't know if they are denying or approving. However, given that they are in the 7th district, and the fact that the Bayo case is probably the second most well known precedent setting case regarding VWP overstays and AOS, they certainly could be denying there.

The only way to find out for sure is to consult with a truckload of immigration attorneys and find out if ANY have successfully petitioned for adjustment of status for a VWP overstay in the past six months or so. The Bayo v Napolitano decision was issued early last year, so anything before that is irrelevant.

[Harpa Timsah 13,258]

Yes, but a few days ago you brought up a court case from the 6th district that established the precedent denial, but just a few weeks back there was a report of an overstay approval from 6th district. It seems to me, from that, that despite various court cases establishing that an IO may deny, actual practice differs from the court cases. Because of the precedent, however, adjudicating practices could change on a dime. Lisa, Jim has good advice: you could call up a bunch of attorneys. Either way, you'll know for sure in 2 weeks. You should be proud of yourself for putting yourself out there and trying. That takes courage. Good luck.

Edited January 28, 2011 by Harpa Timsah

[Myopia 93]

As far as I can remember the Circuits that have precedent to deny are,

The 3rd, 5th, 6th, 7th, 8th,9th and 10th circuit.

They hold that an applicant that files to adjust status after the 90 days have elapsed do not have the right to be adjusted.

The other circuits do allow Visa Waiver Applicants to adjust and I have not heard of anyone who was denied due to being a Visa Waiver Overstay in those circuits other than there is some other issue attached to the case. (In one case the Government claim that the applicant has connections to the Mafia)

However, recently in the Chicago District that is the 7th District, there is someone who went to their AOS interview and was given a I-160 packet which is a hardship waiver application. Usually the 601 is completed outside of the US. In their case they were given the opportunity to complete it in the US. That case is still pending as of today. (The interview was in January 2011.)

I would try not to worry about it. You know that the most recent brief from the solicitor general confirmed that USCIS have the right to use their discretion and thats all you can really do.

You dont want to go to the interview all jumpy and nervous..just busy yourself in gathering as much evidence as you can of a true relationship with your husband, Affidavits from friends, pastoprs

[JimVaPhuong 4,863]

Yes, but a few days ago you brought up a court case from the 6th district that established the precedent denial, but just a few weeks back there was a report of an overstay approval from 6th district. It seems to me, from that, that despite various court cases establishing that an IO may deny, actual practice differs from the court cases. Because of the precedent, however, adjudicating practices could change on a dime. Lisa, Jim has good advice: you could call up a bunch of attorneys. Either way, you'll know for sure in 2 weeks. You should be proud of yourself for putting yourself out there and trying. That takes courage. Good luck.

The common element between all of these court cases is that they have hinged on whether USCIS may deny solely because of the overstay. In each case, the courts have agreed (often times citing other court cases in other districts) that USCIS can deny AOS for a VWP entrant solely because of the overstay. The court decisions don't change the law, nor do they force USCIS to change it's policies if those policies are in compliance with the law. All they have done, in those particular cases, is say that USCIS was within their authority to deny the AOS because of the overstay.

Whether an individual IO still has discretion in these cases depends on the policies at each level in their chain of command. It appears that at the San Diego field office there is an office-wide policy that IO's must deny these cases. There are other field offices in the same circuit court district that apparently don't have an office-wide policy because they are approving some cases. Still others are holding onto the applications waiting for someone with some authority to establish a policy.

The bottom line is that you need to know what's going on at particular field office if it's in a circuit court district where a precedent case has been decided. Since the field office isn't going to show their cards, the only way to find out is to talk to attorneys who deal with that field office.

It would be great if we could start compiling a list of field offices and what was going on at each one, but I'm afraid that there would be a national policy directive before our list got very big.

[schatzi3277 6]

Newark, NJ can be added to the field offices that have been putting on hold. I have been on hold since June 2010. But I can say even though its agonizing to wait and wait at least I can work and drive. Lets look at the positive.

Good luck to everyone.

[Harpa Timsah 13,258]

Thanks Schatzi. I thought Newark too, but I wasn't sure and too lazy to check I remember your case from this summer. Good luck to you.

[Lisa011 6]

Oh, thanks for your vote of confidence Bob!

Lisa, I think we discussed this when you first submitted the app, and I couldn't think of any Chicago cases I had heard of, positive or negative (are you in Chicago per your profile?). I don't know all the offices that are denying, but I make a point to check which office if I hear any report of VWP overstay. I don't remember anything for Chicago or the 7th district. The offices that I know have been denying/putting on hold are San Diego, as you know, and Philadelphia.

I agree with Juliava that you should just calm down as much as possible and go forward. I know you must be in a fit of anxiety. I have hope the IO will see you were brought here as a child and act accordingly... by issuing an approval. Good luck.

Yes we did discuss this when i first submitted the app, now im less then 2 weeks away from my interview & yes I live in IL

Its not in my hands anymore so i guess all i can do is pray and hope everything goes ok!

[Myopia 93]

It would be great if we could start compiling a list of field offices and what was going on at each one, but I'm afraid that there would be a national policy directive before our list got very big.

Im not so sure that USCIS want to make a policy directive. The Solicitor General reaffirmed what we already know so I don't know if they are anxious to issue one especially when there is a clear split in what different circuits have decided. In the 2nd circuit, they have chosen to remain silent on VWP and have stated that they do not agree that a person waives his right to appeal by virtue of being on the Visa waiver program. In one case that I read they stated that USCIS couldn't produce an actual signed waiver as a reason.

What I do find curious is what I noted in my post which is an applicant just had an interview with Chicago for AOS from the Visa Waiver and they were given the I-601 waiver packet to complete at the interview. That would seem to be a huge policy change and would seem to suggest that at least at Chicago office with at least one IO, they are asking applicants to file waivers in order to process the actual I-485.

Have you or anyone else for that matter came across the same kind of case?

Edited January 28, 2011 by Myopia