westlaw786

Help me out here guys and gals,

I entered the USA under the Visa Waiver Program, I got married to my girlfriend and intended to file for permanent residency. I am now over 2 months past my visa expiry date and have not yet filed. I have to leave back to the UK in August 2007.

I think even if i filed tomorrow i wont be getting the travel document i need from homeland security to authorise my travel whilst my paperwork is pending which means if i travel i will be a mere overstayer under the VWP.

Can i get back to the USA if i leave? or obtain the necessary visa to get back? should i file anyway even if it amounts to nothing?

All thoughts are welcome

Ray

When did you arrive ???...

westlaw786

Arrived in early January. Advice i took from an immigration officer was to the effect that i could stay in the USA past the VWP expiry so long as i maintained an 'intent to file' the necessary paperwork or until it had been filed and processed.

I am still in the loophole of 'intent to file'

What do you think?

Ray

you told him you intended to get married then

westlaw786

We were married at the time we spoke to the immigration officer. The 'intent to file' relates to the immigration paperwork to apply for permanent residency on the basis of marriage.

Ray

I think you had better go see an immigration Lawyer ASAP
especially as the price of Adjusting status doubles at the end of
the month..
You may have issues ...

westlaw786

Oh man and i was hoping you would say dont worry bud take it easy have some cake and ice-cream....darn it!

Oh well kind of half expecting it. Thanks for your advice. I am gonna go try find a lawyer!

Ray

www.ailalawyer.com

ian-mstm

Yah... "intent to file" is meaningless. Either you file or you don't. It doesn't matter one whit that you intend to file... it only matters that you did or didn't.

If you leave the US, you will *not* be allowed back in. You currently have no status in the US, and by overstaying the VWP you will *not* be allowed to use it again. That means a B-2 visa to visit which will likely be denied as you definitely have immigration intent... what with a USC wife and all. Even if you were to file for adjustment today, you would not recieve AP by August... and if you leave the US without AP your application for adjustment would be considered abandoned and, again, you have no basis for re-entry.

You have two options: 1) do not leave the US until you have AP; or 2) leave the US and your wife will have to file for a spousal visa... and that'll mean you spending 6 - 8 months in the UK while it is processed.

Ian

westlaw786

thanks guys....appreciate your help. What you have said is kind of what i have been thinking...is AP the parollment or travel document?

Further, will leaving an application abondoned prejudice any application i make thereafter such as say for a spousal visa?

Ray

forget AP ..you can't use it ... you are an overstayer ...
your 1-94 shows the date you should have left ...

LAWYER ....

fatbrit

It's common. JAG lawyers overseas seem to even recommend it. First hand story: alien entry on VWP for PR with military spouse accompanying on JAG lawyer's advice, told immigration officer at POE as such not realizing it could be a problem, immigration officer said he hadn't heard what she said but he didn't want it repeating, stamped I-94W for the 90 days and welcomed her in. Alien adjusted without issues.

westlaw786

Ray are you a lawyer?

Why can i now not use AP? I thought that though my visa had expired there was a legal allowance for those wishing to claim residency through marriage to a USC. This allowance does not class me as an overstayer and does give me some legal status in the USA. Though presumably any such status is subject to some reasonable time limitation to file within a reasonable time?

If i cannot claim AP because i am classed as an overstayer then presumbly i am applying for residency as an overstayer also. Is this the case?

if residency and AP are not applied for...can i leave the country without a problem? and what will be the conditions of my trying to re-enter the USA, if any?

snowbunny

No, sort of, no, maybe, no, yes, no, you won't be allowed in. All based on my layperson's knowledge.

ian-mstm

Nah... but he did sleep at a Holiday Inn Express last night!


If you have an overstay and you leave the US... even if you have AP you may incur a ban from the US. Largely though, this would depend on the length of the overstay. In your case, you're encroaching on 6 months... and that translates to a 3-year ban. So, Ray is suggesting that you don't bother applying because you won't want to leave the US until you have the GC in your hand.


Usually, the overstay is forgiven if you're married to a USC... but it doesn't mean that there won't be a ban if you leave the US. What it does mean is that as long as you remain in the US, you will still be allowed to adjust status to a PR and the overstay will not be an issue in that decision.


Certainly, yes. You are always free to leave the US at any time.


Oh... you won't be allowed to re-enter without a valid visa... but you'll have no problem leaving!

Ian