strangefruit

Hello all,

I am a USC who just married a UK citizen. My husband moved to the US in 92 on VWP and overstayed as well as worked without authorization. He got married in 98, but the marriage never worked out and his AOS application was never submitted.

After 3 years they separated and in 2004 the divorced finalized. I met him in 2003 and we became close. He left and went back to the UK in 2004 looking to start a new life. When he left we realized we were right for each other, wanted to marry and thus got married this year.

Since he left in 2004 I've visited the UK several times and he has visited the US twice using the VWP. After speaking to an attorney we now realize that he wasn't legally present in the US under the VWP. He is heading back to the UK once we get our marriage license this week.

We have an appointment set with an immigration attorney but I am not sure what to expect. We know the 10 year ban was incurred when he left.

I have noticed on this forum that overstays can be forgiven once married to a USC but what of using the VWP to re-enter?

He had no knowledge of the 10 year ban plus the VWP re-entry/illegal presence and would have originally stayed if he knew.

Is applying for a US spousal visa when he gets back to the London embassy an exercise in vain??

Our attorney advised us that he is interested in how he got back into the country twice under the VWP and wanted to check with immigration for a fee of $250 whereas no other attorneys mentioned that. He has 30 yrs experience and a member of AILA which looked reputable.

At this point we don't know what to expect or do as I am not that happy about moving to the UK because my family and life are here.

He knows he brought this on himself but hindsight is 20/20. Any positive input would be welcome as this is a large source of stress for us.

Thanks in advance.

Noorah101

You're right about the ban. There will be the 10-year ban from him entering the USA on any visa. You can try filing a hardship waiver, which means that the hardship must be on YOU as a USC, if he's not allowed to come to the USA. That's pretty hard to prove, since you are easily able to move to the USA (unless you have some circumstances other than "my family and life are here").

Overstays are forgiven IF the alien is still in the USA. He's already gone, so that option is out.

I'd also be curious how he returned on the VWP later, since a ban was supposed to be in place after such a long overstay.

You might want to look deeper into moving to the UK to be with him.

Best Wishes,
Rene

meauxna

You can go to www.immigrate2us.net and read in the I-601 forum for people in your situation.
There is a lawyer there who specializes in these types of waivers; she takes phone consults and has a weekly chat on her website (Laurel Scott).

The fee of $250 to do some investigating on your unusual addition of the VWP readmissions seems reasonable--you are entering a specialized area of immigration practice and your case won't be quick or inexpensive.

Good luck.. it's going to take some studying and output.

Ray

Sound like the OP is still in the US ...

strangefruit

Thank you for your replies. I have looked at the link and there is some uselful info on there although I am a bit sad because their site went down recently and they lost all previous posts etc.

Just to clarify, my husband is the UKC and we are both in the US at the moment. He is due to leave shortly to go back to the UK as he doesn't want to make things worse by staying here illegally.

snowbunny

He SHOULD NOT LEAVE.

Consult an AILA lawyer (I highly recommend Ms Scott) NOW.

strangefruit

We have an appointment this week with an AILA attorney. He is here on VWP and to best of our knowledge he isn't supposed to be here on that because of the orignal overstay and VWP violation.

What are the risks of him leaving at this point?

snowbunny

Risks? There are certainties.

He WILL incur a 10-year ban which he'll have to wait out outside of the US. It is an incredible longshot to get that forgiven due to hardship on you.

If he stays, so long as he is not in removal proceedings, then you have a much better chance at successfully adjusting and the WORST that can happen is that he'd have to leave if the adjustment wasn't successful, thus incurring the same 10-year ban.

Start working on the I-130 NOW.

strangefruit

I'm not sure if you realize from my original post but he has already lined himself up for a 10-year ban due to the fact he left the country in '04 and is beyond that point now.
The problem we face now is he has entered the country ( twice ) on the VWP and is thus here illegally from what I have been told. He never faced any issues at the POE. The first time the Agent told him " Welcome back! ", which baffled him.

Wouldn't the I-130 be rejected because he left the country after his overstay and triggered the ban?

snowbunny

LAWYER TIME.

I'm telling you, start the I-130 paperwork. It's only paperwork but there's a surprising amount of information to gather. Then look at the I-485. Seriously. Spend the time you have between now and your lawyer's consultation getting all your paperwork together.

strangefruit

Snowbunny,

Thank you for your advice. We'll get as much done as possible between now and our appointment with our lawyer.

ian-mstm

Umm... I'm willing to bet he is *not* in the US illegally since he *was* inspected and admitted at the POE. Are there still issues... you betcha... but I say file the I-130, I-485, and I-765 now and see what happens. At best, thing'll be fine... at worst, he'll have to leave the US and face a 10 year ban. He should not, under any circumstances, leave the US.


Overstays are usually forgiven for the spouse of a USC, so no... it won't automatically be rejected solely for the overstay. I don't see anything on the I-130 that precludes you from filing.

Ian

snowbunny

Well, not unless the AOS (application for him to adjust status) fails!

Immigration law and custom are very very strange here, stranger than you, strange fruit. It is infinitely more forgiveable for him to remain in the US and continue to accrue a longer overstay (be here "illegally") while you apply for his adjustment, than for him to return to the UK.

Another thing.... I believe that once you've filed for his AOS he is not deportable should he fall into the hands of la migra.... not until the entire process has been adjudicated. Anyone else had that situation?

ian-mstm

Yes, I agree with this.


I'm not sure about being not depoartable... but once the AOS application is filed *and* accepted, then he is in status.

Ian

meauxna

In light of her new information about his location, I totally agree with this.