VWP Overstay -- How Best to Marry?
Apr 25th 2011, 2:14 pm
#16
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Joined: Jan 2009
Location: DFW, TX
Posts: 508
Re: VWP Overstay -- How Best to Marry?
For a period of maybe 18 months around 2008, this was true. However AOS on a overstayed VWP is not at all the shoe-in, open-and-shut procedure that it was for those few months anymore. People ARE getting denied for trying to take this "shortcut", and guess what? There's no option of an appeal, and that alone would make me advise to avoid this route at all costs.
Apr 25th 2011, 2:39 pm
#17
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Joined: Apr 2011
Posts: 20
Re: VWP Overstay -- How Best to Marry?
For a period of maybe 18 months around 2008, this was true. However AOS on a overstayed VWP is not at all the shoe-in, open-and-shut procedure that it was for those few months anymore. People ARE getting denied for trying to take this "shortcut", and guess what? There's no option of an appeal, and that alone would make me advise to avoid this route at all costs.
Apr 25th 2011, 10:10 pm
#18
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Joined: Jun 2009
Posts: 312
Re: VWP Overstay -- How Best to Marry?
I have a lot of respect for you and your advise having been a lurker on this board for years but in this case you are dead wrong!
USCIS have released memos to all Districts stating that they are now adjudicating VWP overstays as normal. At a time after the various District court rulings there was a serious problem with VWP overstays but the Solicitor general and USCIS recently clarified this situation for all D/O's and made it clear that they retained jurisdiction over VWP overstays and are now adjudicating those overstays in the same way as they adjudicate other visa overstays. It has actually been posted in your sticky (which is now out of date).
http://www.uscis.gov/USCIS/Outreach/...%20_040711.pdf
You can read from page 5.
To the OP because you are not able to appeal your decision if you take the first route that you asked about, it is prudent to make sure your package is well put together. This means every single thing needs to be in order; if you have a foreign birth certificate, make sure that it is translated. If you have a change of name, make sure you have the documentation to attest for that. If you sponsor hasn't filed taxes for 15 years, make sure that they are filed. As long as that package is iron clad as relates to evidence, you will limit the RFE's(requests for evidences) that you may get and be able to go through the AOS process with limited issues.
Yes the HUGE drawback is you can not appeal a denial, but with a bonafide marriage and lack of intent in your initial entrance, there is a good possibility that you will be fine. Since the memo was published, I have not heard of one VWP adjudication that was denied.
I know a lot of VWP overstay entrants who have recently been successfully approved for their LPR's and on interview, the IO did not ask them one thing about their VWP entrance or overstay.
The VWP entrants who were on hold are being adjudicated and have their green cards ordered.
I do not know any entrants who are being held in abeyance in this time(And that may be because I do not know any who are in removal proceedings)
All the best with the choice you choose to make. As I always say knowledge is power.
ps. I know the San Diego was flat denying and the USCIS guidance should have changed that but based on their stance in the past, I would need to know of actual VWP adjustments that have occurred. I do not know of any.
Thanks.
USCIS have released memos to all Districts stating that they are now adjudicating VWP overstays as normal. At a time after the various District court rulings there was a serious problem with VWP overstays but the Solicitor general and USCIS recently clarified this situation for all D/O's and made it clear that they retained jurisdiction over VWP overstays and are now adjudicating those overstays in the same way as they adjudicate other visa overstays. It has actually been posted in your sticky (which is now out of date).
http://www.uscis.gov/USCIS/Outreach/...%20_040711.pdf
You can read from page 5.
To the OP because you are not able to appeal your decision if you take the first route that you asked about, it is prudent to make sure your package is well put together. This means every single thing needs to be in order; if you have a foreign birth certificate, make sure that it is translated. If you have a change of name, make sure you have the documentation to attest for that. If you sponsor hasn't filed taxes for 15 years, make sure that they are filed. As long as that package is iron clad as relates to evidence, you will limit the RFE's(requests for evidences) that you may get and be able to go through the AOS process with limited issues.
Yes the HUGE drawback is you can not appeal a denial, but with a bonafide marriage and lack of intent in your initial entrance, there is a good possibility that you will be fine. Since the memo was published, I have not heard of one VWP adjudication that was denied.
I know a lot of VWP overstay entrants who have recently been successfully approved for their LPR's and on interview, the IO did not ask them one thing about their VWP entrance or overstay.
The VWP entrants who were on hold are being adjudicated and have their green cards ordered.
I do not know any entrants who are being held in abeyance in this time(And that may be because I do not know any who are in removal proceedings)
All the best with the choice you choose to make. As I always say knowledge is power.
ps. I know the San Diego was flat denying and the USCIS guidance should have changed that but based on their stance in the past, I would need to know of actual VWP adjustments that have occurred. I do not know of any.
Thanks.
as Mr Folinsky wrote you didn't read the AILA post careful enough. So please be careful what advise you will give to the OP.
If there is a deportation order issued even one day before the interview the OP will be deported. As I understand USCIS and ICE are different agencies and they work independantly from each other.
This simply means that ICE can issue a deportation order based oin the overstay and USCIS will not know until the day of the interview.
All those case are not clarified and do you want let the OP find it out based on your advise?
Everybody here has his own opinion but also everybody Iincludes me) had to learn to be careful with any advise given to Users of this forum .
Ian , Rete , and other corrected me a couple of times and I understand their intent which is solely based on experience.
Kind Regards
CCR
Apr 26th 2011, 1:09 pm
#19
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Joined: Apr 2011
Posts: 20
Re: VWP Overstay -- How Best to Marry?
I did read. Let me clarify because it seems as if some posters have this idea that I suffer from a bad case of reading incomprehension.
USCIS and ICE are different entities withing DHS. If a VWP overstay has a removal order at this time then those cases will be held in abeyance. I never said or suggested that those cases would be adjudicated, nor did I glean that from the memo.
Realistically the majority of applicants will not have a removal order a day before the interview. The idea that ICE is just waiting for VWP overstay entrants to file in order to issue removal orders is preposterous and I would love to see that happen. That would really be a case of two agencies working against each other. The court cases that created this mess such as Bradley and Momeni were cases that were problematic all by themselves. A case that is filed and has no ICE removal order will be adjudicated on their merits. This is the case so far and I have no heard of anything that is contrary to that. I can not speak on cases that are on abeyance due to a removal order as I do not know of any and if anyone does know of any recent cases then I would love to know.
I know that ICE can pull a fast one and issue a removal order at any stage before adjudication. This is a clear risk but at this time, I am yet to hear of any in this new climate. I only ever heard of about 3 VWP denials based on the inability to adjust and these cases were all in San Diego. The other cases were all on hold in other states and as I mentioned those holds have now converted into green cards. Those states being Philadelphia and Newark. I know of several successful VWP overstay adjustments in Ohio, Houston and Chicago even with those courts precedent rulings.(And this was before the memo was issued)
To be honest I am curious as to what USCIS intend to do with the cases that are on abeyance. There was another directive from both ICE and USCIS concerning other Visa overstays and removal proceedings which I believe may color the landscape a different color for VWP overstays with a removal order.. But that is just my opinion and there is no factual evidence for that.
(This will probably be split onto the sticky but I wanted to answer this)
Thanks anyways for your comments, I understand being new on this board, every comment I make may seem to be hastily made. Not much I can do about that.
USCIS and ICE are different entities withing DHS. If a VWP overstay has a removal order at this time then those cases will be held in abeyance. I never said or suggested that those cases would be adjudicated, nor did I glean that from the memo.
Realistically the majority of applicants will not have a removal order a day before the interview. The idea that ICE is just waiting for VWP overstay entrants to file in order to issue removal orders is preposterous and I would love to see that happen. That would really be a case of two agencies working against each other. The court cases that created this mess such as Bradley and Momeni were cases that were problematic all by themselves. A case that is filed and has no ICE removal order will be adjudicated on their merits. This is the case so far and I have no heard of anything that is contrary to that. I can not speak on cases that are on abeyance due to a removal order as I do not know of any and if anyone does know of any recent cases then I would love to know.
I know that ICE can pull a fast one and issue a removal order at any stage before adjudication. This is a clear risk but at this time, I am yet to hear of any in this new climate. I only ever heard of about 3 VWP denials based on the inability to adjust and these cases were all in San Diego. The other cases were all on hold in other states and as I mentioned those holds have now converted into green cards. Those states being Philadelphia and Newark. I know of several successful VWP overstay adjustments in Ohio, Houston and Chicago even with those courts precedent rulings.(And this was before the memo was issued)
To be honest I am curious as to what USCIS intend to do with the cases that are on abeyance. There was another directive from both ICE and USCIS concerning other Visa overstays and removal proceedings which I believe may color the landscape a different color for VWP overstays with a removal order.. But that is just my opinion and there is no factual evidence for that.
(This will probably be split onto the sticky but I wanted to answer this)
Thanks anyways for your comments, I understand being new on this board, every comment I make may seem to be hastily made. Not much I can do about that.
Last edited by mariposah; Apr 26th 2011 at 1:17 pm.
Apr 26th 2011, 1:58 pm
#20
Account Closed
Joined: Aug 2002
Location: Kentucky
Posts: 38,865
Re: VWP Overstay -- How Best to Marry?
Very amusing. Was that intentional?
I guess not!
"Hastily" isn't the word I would have used, but many of us have been following DHS practices for many years now and what is written isn't necessarily what is done. Now, that may seem wrong or unfair or confusing to you, but it is SOP.
Ian
Those states being Philadelphia and Newark.
I understand being new on this board, every comment I make may seem to be hastily made.
Ian
Apr 26th 2011, 2:09 pm
#21
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,424
Re: VWP Overstay -- How Best to Marry?
Ian: I have to admire a person who listens and will re-evaluate their position. I now feel that Mariposah is living up to her user name. 
In the history of the posts in this forum, I can now confidently tell a person that filing after 90 days is a negative discretionary factor and that filing before 90 days is a negative discretionary factor.
In the history of the posts in this forum, I can now confidently tell a person that filing after 90 days is a negative discretionary factor and that filing before 90 days is a negative discretionary factor.
Apr 26th 2011, 3:10 pm
#23
Just Joined
Joined: Apr 2011
Posts: 20
Re: VWP Overstay -- How Best to Marry?
Very amusing. Was that intentional?
I guess not!
"Hastily" isn't the word I would have used, but many of us have been following DHS practices for many years now and what is written isn't necessarily what is done. Now, that may seem wrong or unfair or confusing to you, but it is SOP.
Ian
I guess not!
"Hastily" isn't the word I would have used, but many of us have been following DHS practices for many years now and what is written isn't necessarily what is done. Now, that may seem wrong or unfair or confusing to you, but it is SOP.
Ian
I have been following DHS practices for some years too and I am not confused.
I chose the name Mariposah for a reason.
Apr 26th 2011, 3:19 pm
#25
Joined: Apr 2002
Posts: 35,082
Re: VWP Overstay -- How Best to Marry?
This is getting bizzare.
Apr 26th 2011, 8:04 pm
#27
Account Closed
Joined: Aug 2002
Location: Kentucky
Posts: 38,865
Re: VWP Overstay -- How Best to Marry?
I did indeed!
Have you ever had one of those "D'Uh" moments when you slap yourself on the forehead and, in an instant, all the inconsistencies of life suddenly disappear in a blinding revelation of truth? It's a bit like that! 
Ian
I chose the name Mariposah for a reason.
Ian
