VWP Entry and Adjustment of Status: New Decision
Aug 24th 2011, 11:52 pm
#106
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,311
Re: VWP Entry and Adjustment of Status: New Decision
A while back I mentioned that I was working on a case with another attorney where a VWP entrant had married a US citizen. He was arrested out of the interview in June 2010 in San Diego. CIS made their claim that under 9th Circuit law, he could not adjust. He was held in custody pending national review. As people are aware, national Headquarters determined that the local offices could adjust from VWP but it was up to the discretion of the local office on what to do. Client was deported last December.
Due to a fairly unique set of circumstances, we were able to go to the Court of Appeals on the case. [I am not at liberty to discuss those circumstances]. We survived a motion to dismiss and filed our opening brief at the end of June. The brief for the Dark Forces was due next week.
Yesterday we get a call from the Office of Immigration Litigation in the Department of Justice. They wanted to know if we were opposed to a motion to remand. We said "no problem." The government motion was filed today.
In other words, we will be getting him back in a month or two.
In our opening brief, we actually used a lot of the arguments advanced by OIL over the years and flipped them right back. [Its fun when you can do that, but I digress].
FWIW, the boys and girls at OIL actually work for ICE. [Don't ask me to explain it, I think it is weird myself, but then I digress again]. In an informal conversation, they are still of the belief that Momeni precludes adjustment. However, it is CIS and not ICE who get to make that determination.
So, what does this mean? Good question. Part of me thinks that they ICE wanted to avoid a clarification of Momeni. However, that is just an educated guess.
I want to state again -- this case has a fairly unique set of circumstances not available to most posters on this forum.
Due to a fairly unique set of circumstances, we were able to go to the Court of Appeals on the case. [I am not at liberty to discuss those circumstances]. We survived a motion to dismiss and filed our opening brief at the end of June. The brief for the Dark Forces was due next week.
Yesterday we get a call from the Office of Immigration Litigation in the Department of Justice. They wanted to know if we were opposed to a motion to remand. We said "no problem." The government motion was filed today.
In other words, we will be getting him back in a month or two.
In our opening brief, we actually used a lot of the arguments advanced by OIL over the years and flipped them right back. [Its fun when you can do that, but I digress].
FWIW, the boys and girls at OIL actually work for ICE. [Don't ask me to explain it, I think it is weird myself, but then I digress again]. In an informal conversation, they are still of the belief that Momeni precludes adjustment. However, it is CIS and not ICE who get to make that determination.
So, what does this mean? Good question. Part of me thinks that they ICE wanted to avoid a clarification of Momeni. However, that is just an educated guess.
I want to state again -- this case has a fairly unique set of circumstances not available to most posters on this forum.
Aug 25th 2011, 11:06 pm
#107
BE Site Lead
Joined: Aug 2004
Location: MA, USA
Posts: 92,156
Re: VWP Entry and Adjustment of Status: New Decision
A while back I mentioned that I was working on a case with another attorney where a VWP entrant had married a US citizen. He was arrested out of the interview in June 2010 in San Diego. CIS made their claim that under 9th Circuit law, he could not adjust. He was held in custody pending national review. As people are aware, national Headquarters determined that the local offices could adjust from VWP but it was up to the discretion of the local office on what to do. Client was deported last December.
Due to a fairly unique set of circumstances, we were able to go to the Court of Appeals on the case. [I am not at liberty to discuss those circumstances]. We survived a motion to dismiss and filed our opening brief at the end of June. The brief for the Dark Forces was due next week.
Yesterday we get a call from the Office of Immigration Litigation in the Department of Justice. They wanted to know if we were opposed to a motion to remand. We said "no problem." The government motion was filed today.
In other words, we will be getting him back in a month or two.
In our opening brief, we actually used a lot of the arguments advanced by OIL over the years and flipped them right back. [Its fun when you can do that, but I digress].
FWIW, the boys and girls at OIL actually work for ICE. [Don't ask me to explain it, I think it is weird myself, but then I digress again]. In an informal conversation, they are still of the belief that Momeni precludes adjustment. However, it is CIS and not ICE who get to make that determination.
So, what does this mean? Good question. Part of me thinks that they ICE wanted to avoid a clarification of Momeni. However, that is just an educated guess.
I want to state again -- this case has a fairly unique set of circumstances not available to most posters on this forum.
Due to a fairly unique set of circumstances, we were able to go to the Court of Appeals on the case. [I am not at liberty to discuss those circumstances]. We survived a motion to dismiss and filed our opening brief at the end of June. The brief for the Dark Forces was due next week.
Yesterday we get a call from the Office of Immigration Litigation in the Department of Justice. They wanted to know if we were opposed to a motion to remand. We said "no problem." The government motion was filed today.
In other words, we will be getting him back in a month or two.
In our opening brief, we actually used a lot of the arguments advanced by OIL over the years and flipped them right back. [Its fun when you can do that, but I digress].
FWIW, the boys and girls at OIL actually work for ICE. [Don't ask me to explain it, I think it is weird myself, but then I digress again]. In an informal conversation, they are still of the belief that Momeni precludes adjustment. However, it is CIS and not ICE who get to make that determination.
So, what does this mean? Good question. Part of me thinks that they ICE wanted to avoid a clarification of Momeni. However, that is just an educated guess.
I want to state again -- this case has a fairly unique set of circumstances not available to most posters on this forum.
Aug 26th 2011, 3:04 pm
#108
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,311
Re: VWP Entry and Adjustment of Status: New Decision
So there was now a dual path to getting him back.
The guy should not have been removed in the first place. Besides being wrong and mean spirited, the Dark Forces wasted a lot of taxpayers' money.
May 11th 2012, 2:12 pm
#109
Just Joined
Joined: May 2012
Posts: 7
Re: VWP Entry and Adjustment of Status: New Decision
I don't really understand this but
I'm going over in October on VWP to get married to a green card holder who is getting duel citizenship. Does this mean once married I can apply for aos and not have to leave?
X
I'm going over in October on VWP to get married to a green card holder who is getting duel citizenship. Does this mean once married I can apply for aos and not have to leave?
X
May 11th 2012, 3:20 pm
#110
BE Enthusiast
Joined: Jan 2012
Location: Lexington, KY
Posts: 674
Re: VWP Entry and Adjustment of Status: New Decision
James
May 11th 2012, 3:43 pm
#111
BE Site Lead
Joined: Aug 2004
Location: MA, USA
Posts: 92,156
Re: VWP Entry and Adjustment of Status: New Decision
The initial consult can be $100 or might even be free, but is time well spent.
May 11th 2012, 5:56 pm
#112
Member
Joined: Apr 2001
Posts: 14,049
Re: VWP Entry and Adjustment of Status: New Decision
I agree.
And I will add that the consultation might best be had after you are in the USA. The advice you receive might be different from what you would be given if you had the consultation prior to entering the USA.
Although, I cannot predict what any particular US immigration lawyer might tell you no matter where you are at the time.
Regards, JEff
And I will add that the consultation might best be had after you are in the USA. The advice you receive might be different from what you would be given if you had the consultation prior to entering the USA.
Although, I cannot predict what any particular US immigration lawyer might tell you no matter where you are at the time.
Regards, JEff
Apr 14th 2013, 2:15 am
#113
Just Joined
Joined: Jan 2013
Location: New Hampshire
Posts: 7
Re: VWP Entry and Adjustment of Status: New Decision
Quite the opposite. If someone properly files before the 90 day VWP window expires then, although the time taken process that application will take them beyond the 90 days, then from my understanding of it they will be afforded protection 'under the color of the law'. Conversely, if you file when your status has already expired (i.e. outside the 90 days of the VWP) then you run the risk should USCIS chose to pursue it of being removed - married to a USC or not.
