New VWP + AOS information/discussion
Aug 23rd 2008, 10:40 pm
#31
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Stay in the US whilst the K3 visa is in progress
Secondly, does this have a wider implication - we have always been saying "overstays are generally forgiven for spouses of USCs" - do you expect that this might no longer be the case?
Aug 24th 2008, 1:18 am
#32
Septicity
Joined: May 2004
Posts: 23,762
Re: Stay in the US whilst the K3 visa is in progress
Is there any word of them starting mass deportations in the 9th circuit on this triumphal decision?
Aug 24th 2008, 1:28 am
#33
Joined: Apr 2002
Posts: 35,082
Re: New VWP + AOS information/discussion
This thread was split from the original discussion here: http://britishexpats.com/forum/showthread.php?t=556794
Aug 24th 2008, 1:43 am
#34
Professional Drama Queen
Joined: Dec 2007
Location: West Virginia
Posts: 1,061
Re: Stay in the US whilst the K3 visa is in progress
Lay people can understand the law. However, it pays to remember the Dark Forces of DHS are not, repeat not, lawyers. And they read it as justification to do what they want and resent cases which limit their authority. So if they will broadly interpret cases which say they have authority and look for loopholes and narrow interpretation of cases which don't go their way. Failing that, they ignore the law under the rubric of interpretation -- [e.g. "A rose is an african violet."]
On reading case law, I'll admit that it can be difficult -- but that is what 80% of a three year law school education is -- learning how to read those cases while "thinking like a lawyer."
4 and 9 is a joke. You are in the Fourth Circuit, which is the most deferential circuit in the country while the 9th is the least deferential to the government position.
"Discretion" is a mighty word. Janet Reno exercised her "discretion" to prohibit any "arriving alien in proceedings" to be ineligible for AOS. The 1st & 9th [in my Bona case] said the regulation failed under "Chevron, Step 1" analysis, the 3rd and 11th said it failed under "Chevron, Step 2" while the 5th and 8th said fine and dandy. Before the Supremes got into the act, DHS and DOJ issued joint regulations saying that arriving aliens could adjust as long as they went to the agency other than the one they applied to. [The ghost of Joseph Heller works for the government]. Litigation is ungoing. I had TWO clients arrested out of interviews on that one. In other words, the Dark Forces don't care. [BTW, both clients are still here under the Orders of Supervision from Hell, but they are still here].
In reading cases, discerning obiter dicta is tricky and difficult, even for a lawyer.
Bottom line -- DHS often has the power to be as mean or nice as they want. And Congress has stripped the courts of review powers on that.
On reading case law, I'll admit that it can be difficult -- but that is what 80% of a three year law school education is -- learning how to read those cases while "thinking like a lawyer."
4 and 9 is a joke. You are in the Fourth Circuit, which is the most deferential circuit in the country while the 9th is the least deferential to the government position.
"Discretion" is a mighty word. Janet Reno exercised her "discretion" to prohibit any "arriving alien in proceedings" to be ineligible for AOS. The 1st & 9th [in my Bona case] said the regulation failed under "Chevron, Step 1" analysis, the 3rd and 11th said it failed under "Chevron, Step 2" while the 5th and 8th said fine and dandy. Before the Supremes got into the act, DHS and DOJ issued joint regulations saying that arriving aliens could adjust as long as they went to the agency other than the one they applied to. [The ghost of Joseph Heller works for the government]. Litigation is ungoing. I had TWO clients arrested out of interviews on that one. In other words, the Dark Forces don't care. [BTW, both clients are still here under the Orders of Supervision from Hell, but they are still here].
In reading cases, discerning obiter dicta is tricky and difficult, even for a lawyer.
Bottom line -- DHS often has the power to be as mean or nice as they want. And Congress has stripped the courts of review powers on that.
Am I right in understanding what you said :
In reading cases, discerning obiter dicta is tricky and difficult, even for a lawyer. to mean that the opinions expressed in Momeni are not so much legal determinates of why that decision was reached (and hence easily transferable / applied to other similar cases) rather they are (google is my friend
) remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts. ? In which case although SOME local offices might try and run with this fundamentally the Momeni case doesn't change the terrain ?Also, in practical terms do you think the Momeni decision will feature in the advice given by lawyers ( in the privacy of their offices) to couples who are seeking a marriage-based aos from the VWP ? I ask this because prior to this decision (and indeed YB1's account of their experience) like Tracym states the general understanding of a lot of people on this and other boards is that overstays are 'forgiven' once married to a USC. I too am curious as to whether you expect that will change.
Aug 24th 2008, 12:09 pm
#35
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Stay in the US whilst the K3 visa is in progress
But the other poster DID do everything in the 90 days, and was still deported.
Aug 24th 2008, 1:52 pm
#36
Just Joined
Joined: Aug 2008
Posts: 12
Re: Stay in the US whilst the K3 visa is in progress
The important date, regarding AOS, is the date of adjudication (ie for me the green card interview date) - and you will NEVER get an interview within 90 days of applying!
See Folinskyinla's previous comment:
"It is almost axiomatic that an adjustment application is a "continuing" application -- that means that the final adjudication is done on the law at the time of adjudication, not the date of filing."
Aug 24th 2008, 1:56 pm
#37
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Stay in the US whilst the K3 visa is in progress
No I didn't, as i said in my original post, my lawyer advised no need to file within the 90 days. So we filed just after ie. end of Jan.
The important date, regarding AOS, is the date of adjudication (ie for me the green card interview date) - and you will NEVER get an interview within 90 days of applying!
See Folinskyinla's previous comment:
"It is almost axiomatic that an adjustment application is a "continuing" application -- that means that the final adjudication is done on the law at the time of adjudication, not the date of filing."
The important date, regarding AOS, is the date of adjudication (ie for me the green card interview date) - and you will NEVER get an interview within 90 days of applying!
See Folinskyinla's previous comment:
"It is almost axiomatic that an adjustment application is a "continuing" application -- that means that the final adjudication is done on the law at the time of adjudication, not the date of filing."
But apparently in your case, it would not have mattered.
If they aren't going to allowe adjustment from VWP period, they should just say so imo, as it used to be perfectly legal to do what you attempted as far as I know.
Aug 24th 2008, 2:17 pm
#38
Septicity
Joined: May 2004
Posts: 23,762
Re: Stay in the US whilst the K3 visa is in progress
The solution to the problem is easy: provide a K1 or K3 within 30 days of application and then there's no excuse for doing otherwise! The UK, AFAIK, does not allow a VWP express -- however, you'll have a suitable visa within a couple of weeks of applying.
Aug 24th 2008, 2:23 pm
#39
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Stay in the US whilst the K3 visa is in progress
It's still not clear. But presumably she was deported because of the Momemi ruling, i.e. she should have filed within the 90 days. And she was using the good advice of a lawyer!
The solution to the problem is easy: provide a K1 or K3 within 30 days of application and then there's no excuse for doing otherwise! The UK, AFAIK, does not allow a VWP express -- however, you'll have a suitable visa within a couple of weeks of applying.
The solution to the problem is easy: provide a K1 or K3 within 30 days of application and then there's no excuse for doing otherwise! The UK, AFAIK, does not allow a VWP express -- however, you'll have a suitable visa within a couple of weeks of applying.
While I agree, it would be better if it moved faster - I think the other two issues are separate.
Either allow adjustment from the VWP or not - probably not, imo.
No excuse for trying to circumvent it anyway imo - if you need to wait, you need to wait. I certainly did.
That said, it would be desirable to try to speed up the process. Given govt. effeciency, I wouldn't hold my breath however. (Although, so far I have been extremely lucky with the immigration stuff, I personally really can't complain about speed or anything else)
Aug 24th 2008, 2:34 pm
#40
Septicity
Joined: May 2004
Posts: 23,762
Re: Stay in the US whilst the K3 visa is in progress
Either allow adjustment from the VWP or not - probably not, imo.
No excuse for trying to circumvent it anyway imo - if you need to wait, you need to wait. I certainly did.
That said, it would be desirable to try to speed up the process. Given govt. effeciency, I wouldn't hold my breath however. (Although, so far I have been extremely lucky with the immigration stuff, I personally really can't complain about speed or anything else)
No excuse for trying to circumvent it anyway imo - if you need to wait, you need to wait. I certainly did.
That said, it would be desirable to try to speed up the process. Given govt. effeciency, I wouldn't hold my breath however. (Although, so far I have been extremely lucky with the immigration stuff, I personally really can't complain about speed or anything else)
Sometimes I despair of my fellow Americans' acquiescence to maintain the status quo. A little revolutionary fervor might prevent is slipping further into the quagmire.
Aug 24th 2008, 2:40 pm
#41
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Stay in the US whilst the K3 visa is in progress
I really don't get this weird thought process along the lines of: if I had a hard time with it, you should also. This alongside an inability to compare our performance with other countries.
Sometimes I despair of my fellow Americans' acquiescence to maintain the status quo. A little revolutionary fervor might prevent is slipping further into the quagmire.
Sometimes I despair of my fellow Americans' acquiescence to maintain the status quo. A little revolutionary fervor might prevent is slipping further into the quagmire.
My point was that I followed the law, and others need to also - impatience is not a good enough reason imo to try to circumvent the law.
If you don't like the law - by all means, try to change it. Try to make the govt go faster... I'll wish you good luck with that though
Let me know how it goes - although blue and purple are my favourite colors, I won't be holding my breath in the meantime however.
Aug 24th 2008, 2:48 pm
#42
Septicity
Joined: May 2004
Posts: 23,762
Re: Stay in the US whilst the K3 visa is in progress
Don't be ridiculous - I said I had a very easy time with it.
My point was that I followed the law, and others need to also - impatience is not a good enough reason imo to try to circumvent the law.
If you don't like the law - by all means, try to change it. Try to make the govt go faster... I'll wish you good luck with that though Let me know how it goes - although blue and purple are my favourite colors, I won't be holding my breath in the meantime however.
My point was that I followed the law, and others need to also - impatience is not a good enough reason imo to try to circumvent the law.
If you don't like the law - by all means, try to change it. Try to make the govt go faster... I'll wish you good luck with that though
Let me know how it goes - although blue and purple are my favourite colors, I won't be holding my breath in the meantime however.
Aug 24th 2008, 3:38 pm
#43
Account Closed
Thread Starter
Joined: Sep 2002
Posts: 16,266
Re: Stay in the US whilst the K3 visa is in progress
It's still not clear. But presumably she was deported because of the Momemi ruling, i.e. she should have filed within the 90 days. And she was using the good advice of a lawyer!
The solution to the problem is easy: provide a K1 or K3 within 30 days of application and then there's no excuse for doing otherwise! The UK, AFAIK, does not allow a VWP express -- however, you'll have a suitable visa within a couple of weeks of applying.
The solution to the problem is easy: provide a K1 or K3 within 30 days of application and then there's no excuse for doing otherwise! The UK, AFAIK, does not allow a VWP express -- however, you'll have a suitable visa within a couple of weeks of applying.
I have to repeat myself I guess: the holding of Momemi is simply that there is no right of review of the expedited removal in habeas corpus. Period. Likewise, in Freeman, it was the I-130 and the I-485 which came up before the court -- all the court ruled is that the I-130 was approvable based upon the stated facts and that the concomitant I-485 had to be ruled on. DHS later approved the I-130 but denied the I-485 which the Court later approved of.
Quite frankly, although I liked the result of Freeman when it came out, I personally felt it was legally deficient and would be of limited utility -- and sad to say, I was right. Also, a lot of alien-favorable law in the 9th [and alien-unfavorable law in the 5th] will now be subject to further review under a Supreme Court internet case from a couple years back called Brand X . In fact, the effect of Brand X is now one of those hot and sexy issues under discussion and litigation [and actually dispute within the immigration bar regarding offensive use of Brand X. But I digress.]
In hindsight, perhaps a quick declaratory relief filing accompanied by request for a TRO might have kept our unfortunate friend here. However, a TRO simply preserves the status quo -- DHS could have continued to detain her but keep her off the plane. She would have then had the choice of being in jail in the US or walking the streets back home. [I have had clients give up on strong appeals for that reason, or simply because CIS won't give work authorization. Many people call this "blackmail".].
Aug 24th 2008, 3:40 pm
#44
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Stay in the US whilst the K3 visa is in progress
What I was referring to re. ourselves was the extremely quick and painless AOS - we got the EAD and AP in about 1 month, AOS without interview in 3. So that seems just fine to me. Obviously though, not everyone is nearly as lucky.
I have no idea what a reasonable K1 time would be - 3-4 months if you made me take a guess. If you're going to be married, generally people plan their wedding at least that long. And if you can't wait a few months...
For most Americans, however, making the immigrants be able to come over faster is probably not a high priority though - so I'm not holding my breath for this to change quickly.
Aug 24th 2008, 3:40 pm
#45
Account Closed
Thread Starter
Joined: Sep 2002
Posts: 16,266
Re: Stay in the US whilst the K3 visa is in progress
This is a classic "political" question -- the whole issue goes back to a statute enacted by Congress -- and Congress can change it.