mariposah

And you would do well to trust in your attorney. This is your perogative. The fact is if you practice in California, particularly in the San Diego area, the advice may be quite different from the advice that is given from an attorney that practices in New York City or Newark.

The poster asked a question and I gave him my opined answer.The reason that I gave him that answer was because I felt that it was a reasonable reponse. Im not a puppet and I dont tend to toe the party line.

Lets be frank, no one really likes the idea of anyone adjusting from a non immigrant visa such as the VWP. Its considered Visa Express. The majority of responders are always going to advise a person to leave the US and file a CR1. I know numerous attorneys that will advise the opposite to their clients.

The risks from adjusting from a VWP non visa are the same regardless if you overstay or not. If USCIS deny the adjudication there is no recourse. Game over.

What I find odd is this, There was never any issue with adjusting from a VWP when you were in status and that being the case even San Diego was adjudicating those applications. ICE could have still issued a removal order theoretically speaking because the AS interview was not going to be conducted within that 90 day period of lawful status yet those AOS were adjudicated.

Those denied San Diego cases with the overstay came when San Diego was saying clearly that they were not going to adjudicate them. This was more than simple discretion, This was local office policy. However San Francisco were not doing the same thing and they were in the same district.

The problem comes with the VWP overstay ,and frankly if you have overstayed your VWP status for several years then you are going to trigger a ban if you leave in any event and have to file a waiver to get back into the US.

Why would anyone advise a VWP overstay to leave at this time when there is a good possibility of their case being adjudicated?

If you believe an update in the AFM means nothing then I don't know what to say.
All the best.

S Folinsky

I just want to add that your last two posts are, IMHO, excellent.

Life has risks.

JustSomeGuy

Where can we get information and statistics about Adjustment of Status on VWP (with & without overstay and other rule breaking) for various districts?

Does this information exist? It would be quite illuminating.

mariposah

Blushes. Oh wow. Im very flattered. I have a ridiculous amount of respect for you (and secretly have had for years)

Means a lot coming from you. Thanks,

crosscountryrider

For everybody who follows this thread:
Visa Waiver Overstay and Marriage Based Adjustment of Status - San Diego Office Update May 16, 2011
We have been following the Visa Waiver Adjustments crisis since it started in July 2010. In a recent meeting between local AILA lawyers and the USCIS San Diego office the following question was raised by the local AILA lawyers:

USCIS Headquarters meeting on April7,2011 relating to adjustment following a Visa Waiver Overstay, AILA minutes distributed indicating " AILA requests that USCIS immediately issue guidance to the field clarifying that an alien admitted under the Visa Waiver program may adjust status as an immediate relative notwithstanding the filing of form I-485 after the expiration of the Visa Waiver period of admission.

USCIS National Response: All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the US under the visa waiver program and overstayed on their merits, UNLESS, the potential beneficiary is the subject of INA section 217 removal (deportation) order. Additionally filed office have been instructed to hold in abeyance all visa waiver adjustment applications for potential beneficiaries who have been ordered removed under section 217 INA. We are drafting final guidance including an AFM (Adjudicator Field Manual) update on this topic we expect to issue soon."

San Diego Office Response:

The San Diego office has followed up with its own emails on this subject with USCIS HQ, and was advised that when there is a visa waiver overstay they should consider the totality of the circumstances and adjudicate "on the merits". A section 217 violation is an ICE issue that can not be ignored. (AILA lawyers argued that section 217 overstay is not more serious than any other 214 Tourist visa overstay which is excused for immediate relatives; but the San Diego office District 24, belives they need to be distinguished because of the contract the immigrant signs when coming on the visa waiver. The San Diego office would like to see a good reason for the overstay to favorably adjudicate an I-485 on the merits in the exercise of discretion. We are looking forward to more specific guidance.

So there you have it, The San Diego Immigration office finally shows some flexibility and will start approving cases that can show a good reason for an overstay. What such reasons may be, we will update you shortly. Overall this is a positive shift in policy and we hope to report more good news soon. We still suggest to Visa Waiver overstay clients to be careful when filing for adjustment of status, and consult an experienced lawyer before filing the case

Kind Regards
CCR

jeffreyhy

Will start adjudicating cases that can show a good reason for an overstay? (And will approve, or not, based on the merits.)

Regards, JEff

crosscountryrider

Jeff,
this is the reason why the current regulation leave more questions than answers.

I don't know if there is a goodn reson for a overstay or what merits will be considered.

Without attorney or even with an Attorney I think a AOS/Overstay from VWP is still on a edge of a desaster.

Just my 10 cents

Kind regards
CCR

karenaviva

My husband over-stayed because I was diagnosed with breast cancer (at age 36) days before he was supposed to depart. My treatment was scheduled to commence immediately (2 surgeries in 14 days after dx), and then chemo began immediately after. We married 5 months later (TOTALLY bald, down at the courthouse) -- days after my last chemo treatment.

Our attorney said they would never demand a "good reason" (Jacksonville, FL) and while it was a heartwarming story, it was completely irrelevant to whether or not they would adjust his status.

Not only was the adjustment process a breeze (and, because I'm an American, I have a hard time with the angst about "cutting the queue"), but the officer who did our interview put the "magic instant stamp" in Prince Charming's passport so he could have grabbed a plane to anywhere that very afternoon if he'd wanted to (instead of waiting for his greencard to come in the mail).

I'm just saying . . . our attorney solidly subscribed to the idea that adjustments are one of the smoothest (and low-risk) ways to greencard your man.

Bob

Location makes a big difference though...some areas are more strict than others and the downside is not being able to appeal the decision from a VWP denial.

jeffreyhy

Congratulations on your husband's adjustment of status and best wishes to you in your battle with breast cancer.

With regard to "greencard[ing] your man", I'm a bit puzzled by your attorney's thoughts. I'm aware of only two ways - if he's in the USA he applies to adjust status, if he's out of the country he applies for an immigrant visa (considering K3 to be no longer viable). What other ways are there that adjustment is easier than?

Regards, JEff

karenaviva

I guess his feeling was that the risks / expense / blah, blah, blah . . .

inherent in the "depart the country and apply properly" strategy as not "free of risk" either (please, before freaking out, see that I acknowledge below that many will be thinking "but YEAH, the LAW can, indeed, be inconvenient! But that does not mean that it is ok to look for a loophole, no matter how special you believe that you are!"). Here it is:

NOW, I recognize that there is strong feeling about the "correct interpretation" of immigration law's THEORY & INTENT -- AND PRACTICE (ie, how specific jurisdictions interpret & apply the law) . . .

And that MANY people believe that the theory and intent of the law indicate that it is WRONG (illegal, a violation of the spirit of the thing) to promote, suggest, or avail oneself of AOS . . .

I ALSO recognize that some people -- even smart, highly educated persons -- including my attorney and the BCIS/CIS/INS/DHS officer who conducted my interview -- interpret and APPLY the law differently. And, clearly, the application of this interpretation is made possible by the sentiment of this regional office.

The reason why I advertised my circumstance was because one poster wondered something like what "special circumstance might possibly count as persuasive enough to sway a regional office into approving an AOS application -- because of a clarification which suggested they could approve them if they felt compelled to -- when their culture had previously been firmly aligned with denying them?"

I just thought that if ANY story was a good one, mine might be

But I also thought it fair to point out that if I had NO STORY WHATSOEVER, my (my husband's) AOS application would have been approved through the Jacksonville office, per my attorney's advice / experience / counsel / belief / whatever. I am not making any argument for the "correctness" or "legality" of the process through which I just went, I am simply saying that 1) AOS applications are approved with a smile regularly, consistently, and, apparently, without any waves of sentiment (positive or negative) that seem to affect other offices around the country.

Oh! And the REAL reason for this post: That's all I was trying to say, Jeff, (exactly what you are saying): Just as "risky" to pursue the AOS than to DEPART in order to apply the "correct" way -- which may provide one with the ability to claim the "moral high road," but when the rubber hits the road, is just as (or more) fraught with expense & uncertainty (albeit in a different category of uncertainty). Did I obfuscate that? My hubby was HERE, I was in chemo, we would have only seriously confronted the issue of his departure from America if the INS/BCIS/CIS/Whatever They Call Themselves These Days put him on a plane.

S Folinsky

There is a phrase that often applies: "Your mileage may vary."

Furthermore deponent sayeth not other than I am consulting on a case where we are trying to get a person back on much more compelling facts than yours. That said, congratulations.

karenaviva

I want to add that it is the cautionary anecdotes like the one provided by my right honourable colleague that have been the most valuable portions of received wisdom in this process (just kidding about the colleague stuff -- you outrank me by A LOT: my PhD is in American History -- I am not a lawyer, I was only married to one for 15 years, previously )

I tend to have a high risk tolerance, and my communication style (I've bene told ) can seem rather glib. This was NOT my intent, however, for my post, nor did I intentionally set out to be a scoff-law (and I know my attorney does not view himself as one -- I'll wait while you laugh ).

I really think you captured the essence of the thing with the phrase "YMMV." The longevity and passionate feeling on this topic owe a great deal to the very fact that the process *is* so loosey-goosey / inexact / regionally complex (not in theory for many people as I was hoping to acknowledge in my prior post, but in *practice* for all sort of people).

But thank you again, Mr. Folinsky, for your insights & expertise because (although it may seem like I ignored your comments -- because I trod the shorter, but thornier path) I very much DID (and do) read & absorb your contributions & I continue to benefit from absorbing the information therein.

jeffreyhy

I think you read far more into my comment than I intended. I wasn't commenting on the choice to adjust status v. leaving the country and applying for an immigrant visa. I was simply wondering if there were additional ways to become a PR, that were somehow more difficult than adjusting status.

Regards, JEff

karenaviva

My husband says that about me all the time "Dear, I'm a simple creature, and I think you may have over-analyzed it a bit . . ."

You guys are great