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Old Aug 24th 2011, 11:52 pm   #106
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Default 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.
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Old Aug 25th 2011, 11:06 pm   #107
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Default Re: VWP Entry and Adjustment of Status: New Decision

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Originally Posted by S Folinsky View Post
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.
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?
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Old Aug 26th 2011, 3:04 pm   #108
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Default Re: VWP Entry and Adjustment of Status: New Decision

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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?
One takes the cases as they come. The initial goal was to keep the guy off the plane and finish the adjustment. Ultimately he was removed. The arena had then moved, as you note, abroad. That said, the court proceedings in the US did not go away.

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.
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Old May 11th 2012, 2:12 pm   #109
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Default 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
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Old May 11th 2012, 3:20 pm   #110
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Default Re: VWP Entry and Adjustment of Status: New Decision

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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
A person entering on the VWP should not have immigrant intent. If your intent is to stay in the US after you get married then you should apply for the appropriate visa.

James
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Old May 11th 2012, 3:43 pm   #111
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Default Re: VWP Entry and Adjustment of Status: New Decision

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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
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.
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Old May 11th 2012, 5:56 pm   #112
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Default 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


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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.
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Old Apr 14th 2013, 2:15 am   #113
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Default Re: VWP Entry and Adjustment of Status: New Decision

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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.
Oh times have changed..........I remember the days that VWP people were sometimes advised to overstay before adjusting status to avoid the serious issue of "intent to Immigrate". I mean does anyone seriously believe that you can come on vacation on a visa waiver, meet someone, fall in love, get married and then file for adjustment of status all within 90 days unless you had intent to immigrate all along. I'm sure that it does legitimately happen in a few cases but the overwhelming majority are not. Looks like the VWP people are now in a catch-22 situation now
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