jeffreyhy

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.

crosscountryrider

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

meauxna

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.

crosscountryrider

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

usanewlife

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

jeffreyhy

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

jeffreyhy

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

meauxna

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.

meauxna

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!)

fatbrit

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.

meauxna

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

S Folinsky

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.

fatbrit

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!"

Rete

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.

S Folinsky

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.