Go Back   British Expats / Living & Moving Abroad / USA / Marriage Based Visas

Closed Thread
 
Thread Tools
Old Nov 1st 2010, 8:33 pm   #31
Member
 
jeffreyhy's Avatar
 
Joined: Apr 2001
Posts: 14,056
jeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by ironporer View Post
But of course nobody with existing plans to marry while on a VWP stay would ever try to adjust their status, as that would be illegal. This would still only apply to those married on the spur of the moment...married with enough time remaining on their VWP stay to file the AOS papers.
Not marry on the spur of the moment, decide to remain in the USA and immigrate on the spur of the moment.

Once again, the marriage part is confusing the real issue. Decisions about marriage and immigration may go hand in hand, but it's the decision to immigrate, not the decision to marry, that is the problem.
__________________
the other side of the coin
jeffreyhy is offline  
Old Nov 29th 2010, 10:35 pm   #32
BE Enthusiast
 
Joined: Jun 2009
Posts: 312
crosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud of
Default VWP Entry and Adjustment of Status: New Decision/next development

All,
please check the attached link . According to this attorney all San Diego

caes are on hold until a principal decision or ruling will be made by the USCIS

headquarter.

I will keep you posted when I find further updates;

http://www.montaglaw.com/blog/2010/1...program-redux/

Kind Regards

CCR
crosscountryrider is offline  
Old Nov 30th 2010, 7:38 pm   #33
Premium Member
 
meauxna's Avatar
 
Joined: Apr 2002
Posts: 35,089
meauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Thanks so much to CCR for keeping an eye on this topic for us. There are a couple of key thought revealed in the latest blog entry:

http://www.montaglaw.com/blog/2010/1...program-redux/
The San Diego USCIS office has gone on record in an October 19, 2010, meeting with immigration attorneys as holding the position that the former conclusion is the correct one – that overstaying the visa waiver program and then filing for adjustment of status is not available and USCIS lacks jurisdiction to adjudicate such an adjustment of status application. The logical result of this decision is that the alien be arrested and deported. Apparently, that is not happening yet. Instead, the San Diego USCIS is holding these cases in abeyance awaiting for a decision from USCIS Headquarters as to whether USCIS can adjudicate these cases.

Should USCIS headquarters conclude aliens who overstay cannot then file for adjustment of status, there will be a lot of deportations of spouses of United States citizens. Many will be barred from returning to the United States for 10 years for two reasons – being deported, INA § 212(a)(9)(A), and for being in the United States unlawfully for more than one year and then departng. INA § 212(a)(9)(B). As for the second reason, astute readers may point out that “unlawful presence” does not accrue if a “properly filed” adjustment of status application is pending. However, if USCIS lacked jurisdiction to consider the application, was it validly filed? This may be a time for aliens who are accruing 180 days or a year of days since their visa waiver program admission expired to leave the country or face a three and ten year bar in addition to the bar because of being deported. Granted, both bars are waivable, but one must consider the bases for the waivers and the time involved in getting the waivers. More hard choices for those who ignored Momeni and its equivalents in other circuits.
__________________
It's because of the cloudy.
meauxna is offline  
Old Nov 30th 2010, 7:53 pm   #34
BE Enthusiast
 
Joined: Jun 2009
Posts: 312
crosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud ofcrosscountryrider has much to be proud of
Default Re: VWP Entry and Adjustment of Status: New Decision

Hi Meauxna,
thanks for your summary and you are worked the details out.

I will never manage this attention to detail .

Also I believe that a eventual principle decision from the USCIS headquarters

will be applied to evry office in the United States after it's reviewed by the attorneys to be made " court proof".

This is the only reason I can think about why they are holding those cases.

Kind regards
CCR
crosscountryrider is offline  
Old Nov 30th 2010, 9:04 pm   #35
Forum Regular
 
usanewlife's Avatar
 
Joined: Nov 2010
Posts: 65
usanewlife is an unknown quantity at this point
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by crosscountryrider View Post
Hi Meauxna,
thanks for your summary and you are worked the details out.

I will never manage this attention to detail .http://britishexpats.com/forum/editp...post&p=9013405

Also I believe that a eventual principle decision from the USCIS headquarters

will be applied to evry office in the United States after it's reviewed by the attorneys to be made " court proof".

This is the only reason I can think about why they are holding those cases.

Kind regards
CCR
The heading caught my attention and although I have no plans to marry, I would like to thank you ALL for the heads up on this and, as I am currently in AOS from entering under the VWP, this is of particular interest to me. I did file within the 90 days, although this expires tomorrow. (see my thread on separate matter wrt I-130). I will watch and read this thread with interest. Thanks for the links..... interesting reading and I am doing much research. I note the comment about the emphasis being on the VWP and status rather than marriage, so I am wondering if this thread could be moved to the immgration & visa section. Just a thought. Thanks

Last edited by usanewlife; Nov 30th 2010 at 9:08 pm.
usanewlife is offline  
Old Nov 30th 2010, 9:23 pm   #36
Member
 
jeffreyhy's Avatar
 
Joined: Apr 2001
Posts: 14,056
jeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

The issue rarely comes up in situations where marriage to a USC is not the basis for the application to immigrate. There are other situations where it could be relvant, but since marriage is by far the most frequent the thread should remain in this forum.

Perhaps a link to it could be place in the forum you suggest, but I suspect that it will get little traffic.

Regards, JEff


Quote:
Originally Posted by usanewlife View Post
The heading caught my attention and although I have no plans to marry, I would like to thank you ALL for the heads up on this and, as I am currently in AOS from entering under the VWP, this is of particular interest to me. I did file within the 90 days, although this expires tomorrow. (see my thread on separate matter wrt I-130). I will watch and read this thread with interest. Thanks for the links..... interesting reading and I am doing much research. I note the comment about the emphasis being on the VWP and status rather than marriage, so I am wondering if this thread could be moved to the immgration & visa section. Just a thought. Thanks
__________________
the other side of the coin
jeffreyhy is offline  
Old Nov 30th 2010, 9:29 pm   #37
Member
 
jeffreyhy's Avatar
 
Joined: Apr 2001
Posts: 14,056
jeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond reputejeffreyhy has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision/next development

Too bad the very first sentence contains this glaring error:
"I have written several times, here, here, and here about the visa waiver program, similar to how most Americans visit other countries - without visas for short stays, and the ability to adjust status — that is, become a United States citizen. "

Regards, JEff


Quote:
Originally Posted by crosscountryrider View Post
__________________
the other side of the coin
jeffreyhy is offline  
Old Nov 30th 2010, 10:13 pm   #38
Premium Member
 
meauxna's Avatar
 
Joined: Apr 2002
Posts: 35,089
meauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by usanewlife View Post
The heading caught my attention and although I have no plans to marry,
You are also an Immediate Relative, which is why you were allowed to file I-485 while here on the VWP (IRs= spouse, parent, child under 21).

"Spouse" is far and away the most popular subcategory for this type of filing. Most people plan their immigration, but love n' marriage apparently has its own schedule.
__________________
It's because of the cloudy.
meauxna is offline  
Old Dec 6th 2010, 10:21 pm   #39
Premium Member
 
meauxna's Avatar
 
Joined: Apr 2002
Posts: 35,089
meauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

If Mr Folinsky reads this, I'd sure appreciate a comment on it.

I guess it's only illegal "planning ahead to defraud" or whatever it was that used to be said about Alvena, when a non-attorney tells you these things.

http://www.aila.org/content/fileview...&linkid=224523

sigh. I give up.
(lol, for today only!)
__________________
It's because of the cloudy.
meauxna is offline  
Old Dec 6th 2010, 10:35 pm   #40
Septicity
 
fatbrit's Avatar
 
Joined: May 2004
Posts: 23,762
fatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by meauxna View Post
If Mr Folinsky reads this, I'd sure appreciate a comment on it.

I guess it's only illegal "planning ahead to defraud" or whatever it was that used to be said about Alvena, when a non-attorney tells you these things.

http://www.aila.org/content/fileview...&linkid=224523

sigh. I give up.
(lol, for today only!)
He'll probably start foaming.....it's got the FAM 30/60 day rule in there!

"Foreign nationals should be counseled, whenever possible, not to engage in a rapid sequence of events that would lead one to the conclusion that they have been seeking to immigrate to the United States all along."

If you're doing the express route folks, marry after 60 days and file before 90 days.
fatbrit is offline  
Old Dec 6th 2010, 10:42 pm   #41
Premium Member
 
meauxna's Avatar
 
Joined: Apr 2002
Posts: 35,089
meauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond reputemeauxna has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by fatbrit View Post
He'll probably start foaming.....it's got the FAM 30/60 day rule in there!
I know.. I saw that too.
I think I'm still foaming. Explains why so many attorneys give that advice (to people outside the US).



This doesn't really go here, but this is a good place to keep if for now.
http://www.aila.org/content/fileview...&linkid=224487


Others that do go here.
http://www.aila.org/content/fileview...&linkid=225720
Post-VW entry AOS is not prohibited as such
– It happens all the time
• But the prohibition on preconceived intent makes post-VW entry adjustment dangerous
– Was s/he lying when appearing as a visitor upon admission?
– Did s/he really just change plans a week after entry?
• Actions displaying immigrant intent immediately after entry to the United States can trigger suspicion
– Depends upon USCIS district office,
• Even which examiner you get at a particular district office

• Worst case scenario?
– CIS examiner may conclude applicant sought an immigration benefit (admission) through fraud or willful misrepresentation
– CIS can declare applicant removable immediately, without recourse to hearing or appeal, per INA § 217
• But people adjust status after VW entry all the time, right?
– Sure, but the point is that it’s risky
– There are two ways post-VW AOS can go wrong:
• Applying too early (preconceived intent)
• Applying too late (Momeni issues)

• Applying too late (after I-94W expiration) might mean adjustment is impossible
– Depending upon USCIS district office you live in, and which federal circuit (in 9th Circuit, see, e.g., Momeni v. Chertoff)

– E.g., Internal e-mail released by San Diego DD to all AOS examiners:
• “To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview”
• But cf., NorCal CIS districts approving (for now) post-VW AOS applications, so federal court jurisdiction is not dispositive
• Find out how your local district is handling matters

2010 AILA Teleconference/Web Conference
© 2010 American Immigration Lawyers Association
Daniel C. Horne (dl), San Francisco, CA
John Patrick Pratt, Miami, FL
William Stock, Philadelphia, PA
__________________
It's because of the cloudy.

Last edited by meauxna; Dec 6th 2010 at 10:54 pm.
meauxna is offline  
Old Dec 8th 2010, 2:21 pm   #42
BE Commentator
 
S Folinsky's Avatar
 
Joined: Feb 2010
Location: Los Angeles, California
Posts: 6,631
S Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by meauxna View Post
If Mr Folinsky reads this, I'd sure appreciate a comment on it.

I guess it's only illegal "planning ahead to defraud" or whatever it was that used to be said about Alvena, when a non-attorney tells you these things.

http://www.aila.org/content/fileview...&linkid=224523

sigh. I give up.
(lol, for today only!)
Fascinating area -- and did Freeman and Momeni and their ilk change the "pre-concieved intent" doctrine?

Note that Gerald was not talking about "clean entry" and stuff like that.
__________________
No advice is given nor intended by any of Mr. Folinsky's posts on this forum.

I may be an attorney, but I'm not your attorney.
S Folinsky is offline  
Old Dec 8th 2010, 4:12 pm   #43
Septicity
 
fatbrit's Avatar
 
Joined: May 2004
Posts: 23,762
fatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by S Folinsky View Post
Fascinating area -- and did Freeman and Momeni and their ilk change the "pre-concieved intent" doctrine?

Note that Gerald was not talking about "clean entry" and stuff like that.
1/ The author was an Alan, not a Gerald.

2/ The last paragraph on page 727 seems to talk precisely about preparing clients for a clean entry. Stuff like, "Don't bring the ring!"
fatbrit is offline  
Old Dec 8th 2010, 7:49 pm   #44
Rete Female
Concierge
 
Joined: Apr 2001
Posts: 38,848
Rete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Found it very enlightening and a verification of known facts that were at one time a foundation to many people's advice. Nice to see an attorney publish it outright. Oh what a wonderful thing the internet is.
Rete is offline  
Old Dec 9th 2010, 10:13 pm   #45
BE Commentator
 
S Folinsky's Avatar
 
Joined: Feb 2010
Location: Los Angeles, California
Posts: 6,631
S Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond reputeS Folinsky has a reputation beyond repute
Default Re: VWP Entry and Adjustment of Status: New Decision

Quote:
Originally Posted by Rete View Post
Found it very enlightening and a verification of known facts that were at one time a foundation to many people's advice. Nice to see an attorney publish it outright. Oh what a wonderful thing the internet is.
We are in agreement. It is nice to see an attorney publish something agreeing with what I had been harping on for years. [Although I disagree strongly with use of "30/60", I think Momeni undercuts it use further by DHS]. I know that for years that the Mods here correctly recommended that "visa express" people have an in-person consultation with an immigration lawyer.
__________________
No advice is given nor intended by any of Mr. Folinsky's posts on this forum.

I may be an attorney, but I'm not your attorney.
S Folinsky is offline  
Closed Thread

Go Back   British Expats / Living & Moving Abroad / USA / Marriage Based Visas


Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off



All times are GMT. The time now is 5:28 am.


Powered by vBulletin: ©2000 - 2017, Jelsoft Enterprises Ltd.
© 1999-2010 BritishExpats.com