Rete

Ahhh, no, I'm not and no, he didn't.

cloutir

well thats disheartening

Rete

Sorry, Charlie, but you were the one to stay in the US for more than 18 months without permission.

S Folinsky

In a recent unpublished decision, Dehkordi v Holder, a panel of the 9th Circuit opined that Momeni holds that a VWP can't even apply for adjustment.

fatbrit

...outside the 90-day period.

S Folinsky

The last "published" case from a Court of Appeals was the Third Circuit in Bradley last April. Bradley had petitioned for Certiorari to the Supreme Court. Here is the Opposition Brief filed by the Solicitor General. The appendices are fascinating.

I want to be clear -- no advice is given. The issues are still very much up in the air.

jeffreyhy

I found this statement, on page 7, to be interesting:
"USCIS denied petitioner’s adjustment application as a matter of discretion—not as a matter of eligibility. Among the grounds cited for the denial was petitioner’s unauthorized employment in the United States and his overall disregard of the immigration laws."

The detail underlying this statement is on pages 5a and 6a, where unauthorized employment is listed as the 7th of 8 negative factors in the case:
"On March 3, 2010, the Service issued a decision denying your I-485 as a matter of discretion. In reaching its decision, the Service considered the following favorable factors: (i) you being a spouse of a United States citizen, and (ii) you being a beneficiary of an approved Form I-130, Petition for Alien Relative (hereinafter referred to as the visa petition), filed on your behalf by your United States citizen wife. The Service noted, however, that your visa petition was approved after your removal order had been issued. In addition, the Service considered the following unfavorable factors: (i) your outstanding order of removal, (ii) your overstayed admission, (iii) your violation of terms of your admission, (iv) your numerous prior admissions under the VWP and the number of VWP waivers previously executed, (v) your non-compliance with the VWP waiver, (vi) your marriage to a United States citizen spouse outside of 90 days following your arrival, (vii) your unauthorized employment, and (viii) your overall disregard of the United States immigration laws. The Service concluded that negative factors in your case substantially outweigh the positive factors and that you had failed to establish that your adjustment application merits favorable discretion."

Regards, JEff

AmyCO

This is a really interesting topic.

my question is, if you were to file WITHIN the 90 days, but were later denied the AOS. Would the time you had been "legally out of status" turn unauthorized and create a 3 or 10 yr ban depending on the time. Or would a ban be incurred as I assume you would be deported if denied?

Rete

Today's New York Daily News had their column by Allan Wernick

(www.allanwernick.com and www.NYDailyNews.com )

Q: How do I get immigrant visas for my wife and her children, ages 17, 14 and 10 ...... They entered under the VWP and overstayed their 90 days. I am a USC

A: I suggest you petition for your family (I-130) but hold off having then apply for permanent residence.....Recent court rulings have cast doubt on whether your wife and stepchildren qualify to interview here for PR.

Until recently, the USCIS view was that an overstayed spouse, parent or unmarried child of a USC who entered under the VWP could interview in the US. This interpretaqtion of the law is no longer universal. Until the federal courts resolve the matter, it's best that you file petitions for your family (I-130) but that they hold off filing their PR applications.

{quoted text has been edited and can be read in its entirely on the website for the New York Daily News}

jeffreyhy

I do not understand this advice.

It could take some time until the courts resolve the issue, meanwhile the people are accumulating time out of status. Roughly 5 months from now, likely before the courts have resolved the issue, the I-130 petitions will be approved, sent to the NVC, and the NVC will notify the beneficiaries to initiate immigrant visa applications. By that time they will almost certainly have accumulated enough out of status time to face 3-year bans from the USA, perhaps even 10-year bans (the questioner does not say how long past their allowe 90-day stay these people are already).

Why does Allan not mention the option of leaving the USA promptly, to avoid incurring a ban on entry, and apply for immigrant visas?

Perhaps the column edited the question, and the people have already overstayed long enough to incur a ban. And what if the ultimate resolution of the issue is that these people cannot adjust status?

It seems to me that Allan has addressed only a part of the issue, and thereby given incomplete information that could possibly work to the detriment of this family and other readers of the column who could be in similar circumstances.

Regards, JEff

Rete

What's not to understand?

The thought of the length of overstay has crossed my mind as well. The issue of filing the I-130 at this time was because the oldest child is 17 and stepparent status must be done before the stepchild reaches 18. Once that is filed, the stepchild goes under the Child Protection Act (or whatever it is called)

It is only this forum that it is mandatory that one give all contingencies. We have been "trained" by those in legal authority that we must give all contingencies or we are not doing a good service. Lawyers do not have to follow the same rules as we have noted in those posters who have come back and told us that various options were never pointed out to them by their attornies, either retained or consulted.

jeffreyhy

That was the subject of the rest of my post - why was incomplete and potentially damaging advice given?


I agree with the lawyers who have trained us, and believe that those other lawyers who do not lay out the available options to their clients are doing those clients a dis-service.

Noted, however, that in this case the questioner was not a client, and while Allan may be a lawyer he is not the questioner's lawyer.

S Folinsky

AILA has posted this regarding on-going litigation.

Again, no advice given.

crosscountryrider

For everyone who is following this thread here is another interesting link(links) I found

http://www.montaglaw.com/blog/2011/0...-law-or-dicta/

http://www.ailaslipopinionblog.org/category/adjustment/

Mr Folinsky maybe will bring more interpretation into this thread.

It seems that other USCIS offices are following the San Diego approach unless the Supreme Court comes up with a ruling.

Kind Regards
CCR

meauxna

Good stuff, CCR. Thanks again.


"Lamentably, on that thin reed, despite the chaos that the recent spate of visa waiver denials is causing, immigration lawyers are persisting in filing visa waiver adjustments after the alien has overstayed."

"It is also worth noting that Momeni was decided on March 31, 2008, and was a published decision. Any visa waiver applicant who filed an adjustment application after overstaying his or her period of authorized stay after this date ignored a published precedent telling him or her not to. And it is not like Momeni was a secret. It is a published decision and it has been written about in the immigration media, also found here. Plus, I have been writing about this issue since December 8, 2005. Posted January 29, 2011."