SusanPai

Hello Members, I am providing this message as a heads up. You may agree or disagree, of course. This is purely my opinion not to be construed as legal advice nor indefinitely up to date. I am a participant on your site and an immigration attorney.

I believe the bell that has remained "un-rung" since last year will soon be rung loud and clear in the form of a comprehensive review to include statistical information about unadjusted spouses who entered on the VWP and married within the 90 days as well as those who married outside of the 90 days and are therefore (technically) unlawfully present. The case that is in the eye of this oncoming tornado is Momeni vs. Chertoff and much like what happened with the loophole in the legislation allowing concurrent cap-subject applications to cap-exempt H1B visa holders, I anticipate once the statistical information is presented, USCIS will thereafter issue guidelines on whether or not they will automatically reject AOS for the spouses who overstayed their VWP and subsequently married U.S. Citizens.

If this is the case, the spouse will need to exit the U.S. to obtain an "immediate family" immigrant visa via consular processing, and thus at minimum will be separated from his or her spouse for six months to a year or even longer (however long it takes for the consular processing to occur in the home country). However, if the VWP spouse overstayed by more than 6 months but less than a year, they will be barred from re-entering the U.S. for 3 years (unless extreme hardship is proven). If the VWP spouse overstayed over 1 year, they will be barred from re-entering for 10 years (again, unless extreme hardship is proven).

As of today, I am alerting all my clients in this situation to immediately submit the Petition, AOS, AP, EAD, Biographical Info, and Affidavit/s of Support (including co-sponsor) by next week at latest. I believe it would be wise in this situation to adjust status IMMEDIATELY. If rejection guidelines are given to the field offices after comprehensive statistics are publicized, they should already be in the system and thus "grandfathered" in. Or, the worst situation would be where guidelines are issued to begin removal/deportation hearings on anyone the government knows has overstayed the VWP. Adjusting status before removal proceedings begin, before traveling out of the country, and before any guidance based on Momeni vs. Chertoff is distributed to the field offices is of the utmost exigence, in my opinion.

I have set up payment plans with my clients (never done before) in order to faciliate everyone being able to file immediately. The paperwork needs to be PERFECT so there is no chance of rejection and thus missing the window of opportunity that now exists. Please get the word out to spouses who married after they overstayed their VWP.

Now, this being said, once you file the Petition, AOS, etc. USCIS will know you have overstayed your VWP and can technically put you in removal/deportation proceedings. As of now, however, (February 6, 2009) I and my colleagues do not know of any case where this has happened. In fact, one of my colleagues successfully adjusted status for a spouse who overstayed several years.

Once again, this is my opinion and my opinion is based on speculation. However, I have had a similar experience in successfully obtaining H1B cap-subject visas (after the numbers had run out) by applying for concurrent employment on behalf of cap-exempt H1B visa holders by applying the inartfully worded legislation and speculating that only a short window of opportunity to do so existed. Ultimately, USCIS did issue guidelines rejecting such applications (but, that was after all my clients had successfully obtained their cap-subject visas). I believe this is a similar case and thus recommend any spouse who overstayed on the VWP and subsequently married a U.S. citizen to NOT leave the country if you have overstayed by more than six months, and file your petition, AOS, etc. NOW. There can be no mistakes in your paperwork.

Cheers and good luck to all.

Noorah101

Thank you Susan. I have a question on this part:

"the spouse will need to exit the U.S. to obtain AOS via consular processing"

Is it still considered Adjusting Status (AOS) in the above scenario? The spouse wouldn't actually be adjusting status, he'd be getting an Immigrant Visa.

Rene

Noorah101

Another question, please, regarding this part:

"As of today, I am alerting all my clients in this situation to immediately submit the Petition, AOS, AP, EAD, Biographical Info, and Affidavit/s of Support (including co-sponsor) by next week at latest. I believe it would be wise in this situation to adjust status IMMEDIATELY."

You didn't include the full medical in the sealed envelope in your list of requirements for AOS here. Would you suggest submitting the AOS lacking the medical, in a case like this? Would USCIS consider their AOS "filed" within the 90 days, if the client receives an RFE for the medical and returns the RFE with medical after the 90 days is past?

Thanks,
Rene

SusanPai

Thank you, Noorah, in my haste to get the message out quickly I mistakenly said AOS. You are correct, if you are out of the country, you will be applying for an Immigrant Visa (Immediate Family). Cheers, Susan

SusanPai

I will respond to Noorah and others' general questions later - I am late for a meeting now. If you would like to have an offline conversation, please request a full case evaluation and I will provide responses specific to your matter. I will waive the $200 full case evaluation fee for members of this community on this matter as I believe it is an exigent situation. Cheers, Susan

Folinskyinla

Hi Rene:

You know my position on the "visa express." I have never felt it is a thing to be recommended for a large variety of reasons. I happen to like Susan's language about ringing of the bell in the Momemi case here. Also, the reference in Momemi to the Freeman case seems to ignore a little thing -- Carla Freeman ultimately LOST -- in an unpublished decision, it was held that Karla abandoned her adjustment when she lost.

Which brings up the 1903 case from the Supreme Court called The Japanese Immigrant Case aka Yamataya v Fisher. Due process consists of the "hearing" granted by Congress. And if that is just with your friendly ICE officer, so be it. In other words -- the "hearing" mentioned by Susan is not a hearing before the Immigration Judge. That you don't get.

I have not heard of such guidelines coming down the pike soon -- but I'm not in a position to say Susan is wrong.

As the attorney for Delia Bona in Bona v. Gonzales here in the 9th, I've been quite interested in the adjustment of "arriving aliens." Susan lives in the 11th Circuit and that court had given rights to arriving aliens in the Scheer cases [on a different theory]. However, there was Scheer II in which Herr Scheer lost. [Ms. Bona is a Navy wife -- and in their role in defending the security of the US, DHS in San Diego has expressed extreme hostility to military families, but I digress. In contrast, Mr. Scheer is from Germany and is literally a neo-Nazi].

The DHS and DOJ issued joint regulations in 2006 in which they stated in the supplementary material that they would "acquiesce" in cases like Bona and Scheer. Unfortunately, it now appears that the Government simply lied. The 11th Circuit has no problem with this, but the 2nd, 7th and 9th have -- using terms such as "meaningless" and "illusory" to describe the new regulation.

Bottom line -- don't try and short circuit the system -- it can bite you on the ass -- hard.

SusanPai

Thank you F..., you make a good point. I and most of my petitioning clients are in the 11th Circuit so our circumstances are very different than those in the 9th Circuit where Momeni was handed down. This might explain the overzealous actions one member in this community experienced in Reno, NV (10 year bar - I was very sorry to read that - differential enforcement is never right in my book).

Again, it is purely my speculation that guidance will be issued by USCIS in the near future about how all field offices are to handle VWP overstay spouses. In theory, that should standardize the way such situations are handled whether good or bad. Consular processing is currently (as of February 7, 2009) is the safest way to achieve lawful status if the beneficiary has not overstayed six months or more. Again, there will be a period of separation, during the consular process.

The people who really need to move on this now are VWP spouses who have overstayed more than six months. And, if you have overstayed by more than a year, you really should seek the best counsel you can get. If you can't afford it, ask the attorney for a payment plan or use paypal. Some attorneys will accept credit cards directly. Because of the potentiality of a 3 or 10 year bar, it is of the utmost importance that both petitioner and beneficiary understand all their options, the best case scenario as well as the worst. Proceed in a fully informed manner. Unfortunately, no lawyer can guarantee what will happen or how one particular official will rule in a particular region of the country. And, of course, since you have entered on the Visa Waiver Program, you have waived your right to appeal (although even that has been argued). Ahhh, I'm getting a headache just thinking about it.

SusanPai

Hello Noorah,

In order to have a complete application, I file the medicals with the I-485 as directed in the I-485 instructions (Form Rev. 05/27/08) Section 7, "Medical examination." If you are a refugee who had a medical examination in your home country and no grounds of inadmissibility arose at that time (and that exam ocurred within a year of your first admission), you are excepted from resubmitting.

USCIS may always choose to reject an incomplete application or accept an applicaiton and request further evidence. To avoid the first possibility, it is a good idea to follow instructions and file the medical at the same time.

Disclaimer: This information is of a general nature and should not be construed as a specific answer to a particular individual or case. None of the information presented here is to be interpreted as legal advice nor presumed indefinitely up to date.

Noorah101

I agree. I was just wondering, if you have a client who will not have the medical completed by the time the 90 day VWP is up, would you recommend they file an incomplete AOS anyway, excluding the medical, before the 90 days is up? Or wait until after the 90 days is up but file a complete AOS including the medical?

Rene

SusanPai

As a general matter, I never recommend doing something I anticipate will risk an RFE because that also risks rejection.

Songbird

Given the circumstances some couples might find themselves in (and if USCIS does get hardline with this )then imo if it's the choice between submitting outside the 90 days with a medical OR inside without one, then I would go with the latter. I know the AOS isn't considered 'properly filed' unless it contains all the requested documentation and hence is able to be rejected but iirc there was a memo circulated some time ago (or maybe I read it in some USCIS doc's ) which did address this specific question (can't for the life of me recall the full details though ) Briefly the gist of it was that a 'sensible' approach should be used re: RFE's v's rejection. There are different gradients of 'incomplete', and each should be judged on its merits i.e. there is a difference between someone omitting a medical (which could be merely a mistake and would probably be REF'd ) and someone whose whole application is so devoid of accompanying requested evidence it couldn't in all seriousness even be considered to be a submission. My memory is vague on this but I'm fairly surely there was an advised 'rule of thumb', namely that if other than the missing evidence the rest of the submission would have been thought 'properly filled' then it can be (at their discretion) RFE'd.

Like I say I am very vague on this but it was pertinent to my filing (missing court docs) and I stumbled across this somewhere USCIS related

SusanPai

Hello Listmates - If a person has to choose between incomplete medical within the 90 days or complete medical outside the 90 days, I would submit the incomplete medical within the 90 days with a valid explanation of why it is incomplete.

Veritas Aequitas

ian-mstm

Thank you!


You'll probably not understand this, but I'm guessing you don't know RTI, right?

Ian

forts

Medicals should be with the application. They only take a few days! It is as long as the TB Test takes. That is the info that needs to be reported that takes the longest. Blood tests can be done overnight or 2nd day.

IMHO, If for whatever reason you have to choose filing without them or waiting if you are about to overstay, I would think file without them is better, you can resubmit if rejected. They will ask in an initial RFE for the medicals if they are missing and the case was accepted. In either situation, you can argue you are late for "technical reasons." If you have already overstayed a while, I don't see what difference a few days makes at this point. Just do it, NOW.

Also, USCIS uses date received, not sent like the IRS. Luckily their Lockbox Contractor processes fast as well, within a few days of receipt.


My two layman's cents about this -
(I will correct any mistakes)

In this new case in question, Momenti (the alien spouse) entered the US on the VWP, overstayed the 90 days, then was married, then taken into custody for violating his visa, then was given an order of removal, and only then did he apply for AoS. He argued it similar to Freeman and lost.

In Freeman, it was decided that an already married upon entry spouse's legitimate eligibility for Adjustment of Status from the day they entered the country superseded the VWP's declared absolute conditional waiver of the ability to appeal removal. The application was also done before the 90-days expired. Those are the two differences the court described in their ruling that disqualify Momenti.

I think the court could have easily ruled the differences that made him ineligible vs. Freeman was that he was married after his overstay, and that he didn't apply for AoS until he was given a removal order. It seems the court is trying to making a point. I don't know anything about the Federal Court System in this instance, and would like to hear legal opinions. Most regulars here are against "visa express", and I think it is a bad idea, but it is your choice. You can still be removed and excluded for visa fraud, even despite your actual intentions! (They are difficult to prove and there may be a presumption against you.)

The fact that it was ruled different from Freeman using specific circumstances reinforces IMHO that spouses already married entering under the VWP and applying for AoS before the 90-day expiry are guaranteed eligibility, and probably also those married and applying before the 90-day expiry as well (if all other eligibility conditions are met via successful application, of course.) Again, feel free to offer legal opinions.

jeffreyhy

f,


Taken into custody why?


To quote Folinskyinla, from his post in this very thread,
"Also, the reference in Momemi to the Freeman case seems to ignore a little thing -- Carla Freeman ultimately LOST"

Regards, JEff