Re: VWP Entry and Adjustment of Status: New Decision
A while back I mentioned that I was working on a case with another attorney where a VWP entrant had married a US citizen. He was arrested out of the interview in June 2010 in San Diego. CIS made their claim that under 9th Circuit law, he could not adjust. He was held in custody pending national review. As people are aware, national Headquarters determined that the local offices could adjust from VWP but it was up to the discretion of the local office on what to do. Client was deported last December.
Due to a fairly unique set of circumstances, we were able to go to the Court of Appeals on the case. [I am not at liberty to discuss those circumstances]. We survived a motion to dismiss and filed our opening brief at the end of June. The brief for the Dark Forces was due next week. Yesterday we get a call from the Office of Immigration Litigation in the Department of Justice. They wanted to know if we were opposed to a motion to remand. We said "no problem." The government motion was filed today. In other words, we will be getting him back in a month or two. In our opening brief, we actually used a lot of the arguments advanced by OIL over the years and flipped them right back. [Its fun when you can do that, but I digress]. FWIW, the boys and girls at OIL actually work for ICE. [Don't ask me to explain it, I think it is weird myself, but then I digress again]. In an informal conversation, they are still of the belief that Momeni precludes adjustment. However, it is CIS and not ICE who get to make that determination. So, what does this mean? Good question. Part of me thinks that they ICE wanted to avoid a clarification of Momeni. However, that is just an educated guess. I want to state again -- this case has a fairly unique set of circumstances not available to most posters on this forum. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by S Folinsky
(Post 9580329)
A while back I mentioned that I was working on a case with another attorney where a VWP entrant had married a US citizen. He was arrested out of the interview in June 2010 in San Diego. CIS made their claim that under 9th Circuit law, he could not adjust. He was held in custody pending national review. As people are aware, national Headquarters determined that the local offices could adjust from VWP but it was up to the discretion of the local office on what to do. Client was deported last December.
Due to a fairly unique set of circumstances, we were able to go to the Court of Appeals on the case. [I am not at liberty to discuss those circumstances]. We survived a motion to dismiss and filed our opening brief at the end of June. The brief for the Dark Forces was due next week. Yesterday we get a call from the Office of Immigration Litigation in the Department of Justice. They wanted to know if we were opposed to a motion to remand. We said "no problem." The government motion was filed today. In other words, we will be getting him back in a month or two. In our opening brief, we actually used a lot of the arguments advanced by OIL over the years and flipped them right back. [Its fun when you can do that, but I digress]. FWIW, the boys and girls at OIL actually work for ICE. [Don't ask me to explain it, I think it is weird myself, but then I digress again]. In an informal conversation, they are still of the belief that Momeni precludes adjustment. However, it is CIS and not ICE who get to make that determination. So, what does this mean? Good question. Part of me thinks that they ICE wanted to avoid a clarification of Momeni. However, that is just an educated guess. I want to state again -- this case has a fairly unique set of circumstances not available to most posters on this forum. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by Bob
(Post 9582123)
And for shits and giggles, how expensive was that to sort out in order of magnitude v either sorting out a visa instead of AOS'ing on the VWP, or once deported trying to come back freshly? :)
So there was now a dual path to getting him back. The guy should not have been removed in the first place. Besides being wrong and mean spirited, the Dark Forces wasted a lot of taxpayers' money. |
Re: VWP Entry and Adjustment of Status: New Decision
I don't really understand this but
I'm going over in October on VWP to get married to a green card holder who is getting duel citizenship. Does this mean once married I can apply for aos and not have to leave? X |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by darla
(Post 10054656)
I don't really understand this but
I'm going over in October on VWP to get married to a green card holder who is getting duel citizenship. Does this mean once married I can apply for aos and not have to leave? X James |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by darla
(Post 10054656)
I don't really understand this but
I'm going over in October on VWP to get married to a green card holder who is getting duel citizenship. Does this mean once married I can apply for aos and not have to leave? X The initial consult can be $100 or might even be free, but is time well spent. |
Re: VWP Entry and Adjustment of Status: New Decision
I agree.
And I will add that the consultation might best be had after you are in the USA. The advice you receive might be different from what you would be given if you had the consultation prior to entering the USA. Although, I cannot predict what any particular US immigration lawyer might tell you no matter where you are at the time. Regards, JEff
Originally Posted by Bob
(Post 10054837)
Looking at your other posts. You are someone that I suggest would do well from having a consult with a US immigration lawyer, to explain the pro/cons and what can and cannot be done.
The initial consult can be $100 or might even be free, but is time well spent. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by Songbird
(Post 8291592)
Quite the opposite. If someone properly files before the 90 day VWP window expires then, although the time taken process that application will take them beyond the 90 days, then from my understanding of it they will be afforded protection 'under the color of the law'. Conversely, if you file when your status has already expired (i.e. outside the 90 days of the VWP) then you run the risk should USCIS chose to pursue it of being removed - married to a USC or not.
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