Info Request
 

Hi,
Does anybody know in what situations a long overrstay won't be forgiven for AOS purposes after marriage to US Citizen?

Thanks.

Re: Info Request
 

Following the advice of the good people here, and not volunteering more information than was actually asked... the answer is: yes, I know.

Ian

Re: Info Request
 

Could you be a little more specific? ... anything you say can't and won't be used against you... LOL

Re: Info Request
 

Here's why I thought I'd ask: Before we tied the knot, my spouse came to visit on the VWP and remained the full 90 days; caming back at my request after 2 and 1/2 weeks again on the VWP -this time we ended up getting married.
We're concerned these frequent visits (always to the last day allowed) before getting married will be negative when considering forgiving the overstay or even AOS.
I consulted a lawyer in town and he said that "legal entry with inspection" is what we should be concerned about. The lawyer also mentioned that it was a virtual miracle to obtain admission after the previous entry on the VWP.

Any comments will be useful.

Re: Info Request
 

The question maybe.. did he have intent to marry you on the second visit you mention.. i.e. did he sell up, give up work etc... before returning

Re: Info Request
 

In reality it was a spontaneous decision based on unforeseen circumstances that occurred AFTER entry. At the time, we were in a deadlock and didn't know what to do, so we decided to get married and face things as a couple. It sounds stupid now but at the time we didn't know much.

That said and done, does this add a higher degree of difficulty difficulty to AOS?

Re: Info Request
 

I don't believe so, no. Despite the time interval, he was lawfully admitted and even very lengthy overstays are generally forgiven for the spouse of a USC. Good luck to you both.

Ian

Re: Info Request
 

I just found out by visiting the USICS web site (yikes!) that overstays based on marriage to USC are NOT forgiven when the applicant is a K visa holder who didn't marry within the 90 days specified. Also found out that student visa holders are not allowed to adjust status this way. Maybe this is the information I was looking for in the first place.

I also read some posts related to the intentions of getting married and I found out that the issue almost never comes up. The answer your questions is no, nobody quit jobs or had a garage sells before coming. One of the reasons he had to return in the first place before coming again is because he had loads of backed up work to do. He came here again because I kept on asking him to do so, and he only brought a few personal things for he was planning on visiting for a week or so just to make me happy (it was my b-day). We even had a fights over the phone when he asked me if I knew how much the tickets were and how much work he had backed up. :(

Re: Info Request
 

Don't be paralyzed by fear! There is nothing wrong with filing for AOS - and it is the only *absolute* way to know for sure whether his adjustment will be allowed. Deal with the issues if and when there's a problem, but don't suffer endlessly based on what you *think* might happen as opposed to what might actually happen. Reading too much only fuels the imaginary scenarios in your head. File, and then kick back and wait to see what happens.

Ian

Re: Info Request
 

Shoot I well aware of that! I got a recent problem with our cell phone and I started imagining things (i.e. Judge Juddy... LOL), it all got solved after showing up the bill and a quick talk!
I just wanted your opinion on our situation, do you think we're gonna be fine? Is this some extraordinary situation? I'm asking because you folks have lots of years of listening to different cases and their outcome.

Re: Info Request
 

From the information provided in this thread... yes.

Ian

Re: Info Request
 

Whole lotta thanks for your advice and feedback!

Re: Info Request
 

I just got off the phone with the attorney we contacted earlier regarding some questions about the forms and to make sure we file correctly. (I didn't wanna ask such stupid questions here). I also asked about the situation and what was discussed in my postings and he told me not to worry too much about it. He also mentioned that he "thinks" there's a waiver in case "they get too attached to any intend issue", a waiver that gets approved on a regular basis. Is he right? Does this sound familiar? What he heck is he talking about?

Re: Info Request
 

I was in a similar situation. I had visited my boyfriend on the VWP for the full 90 days, returned to the UK, and returned (again on the VWP) a month later, which is when we married.
I have been in the US since last January (2004) and have only just filed the AOS paperwork at my DORA interview in Dallas. The overstay nor the previous stays on the VWP were mentioned.
I haven't been approved yet, but the Immigration Officer didn't seem to see a problem.
Good luck!!! :)

CF

Re: Info Request
 

I was just trying to validate what our attorney said. I mean, I don't wanna stick with him if he doesn't know what he's talking about! He talked about a waiver and how it could apply just in case, he also mentioned it gets approved in a regular basis.

I don't see the need for no waiver, we've done everything following our hearts, no funky business involved.

But thanks for the advice anyways, every bit helps.

Re: Info Request
 

There is no joy in Mudville. He "thinks"? Do you mean to say he doesn't know for sure? Sounds like you need a new lawyer. I'll add here that the gentle readers of this forum are probably far more up-to-date with information on filing forms than most lawyers! Go ahead and ask your questions!

Ian

Re: Info Request
 

Yes indeed, he said "I think"... Was he wrong? Is there such a waiver that gets "approved on a regular bases" for situations when "the service" -this is how he calls USCIS- gets obsessed with intent.

If he don't know crap I'm going to fire his butt!

Re: Info Request
 

Get it in writing, what all his 'service' to you will entail.

The more *you* learn, the more you'll know what he's talking about. Don't learn too late ;)

Re: Info Request
 

What I would like to know is, is he telling me the truth?

Thanks for the advice.

Re: Info Request
 

He also told me that there's a chance that my spouse would have to leave the US because he overstayed for a long time. (we've been married for 5 years and we've been played by lots of people on how to do this, we've spent lots of money in fake jack a##@s who don't know anything and have been suffering for all this time not knowing what could happen). I discovered this place less than a month ago and finally getting some sound advice.

Re: Info Request
 

There's too many maybes and I thinks and just don't knows. Now we find out there's multiple year overstay.. that's probably the waiver the attorney was talking about, a waiver for the overstay (which really WAS your original question :) ).
I'm not familiar with a waiver for intent.

Again: ask your lawyer to give you in writing what exactly he will be doing for you. What forms, what appointments, how many phone calls/questions do you get, when will he return your calls.. whatever you need to know to have confidence in him.

Re: Info Request
 

I believe that a long overstay is usually overlooked when the alien is married to a US citizen. Long overstay which might not be forgiven is if the alien entered without inspection, and was otherwise inadmissible.

Re: Info Request
 

Here's what he said in a nutshell, I'll quote him as much as possible:
On the overstay: "he can adjust without leaving since he entered with inspection and there's no time limit on this since the marriage is to USC" However, he may have to leave.

On the intent thing "don't worry about it, continue to be honest and that's all". then he said "I think there's a waiver for that, if you must know, that applies to inadmissibility UE".

I don't have a clue of what he meant, I'm just concerned because I don't want my spouse to leave.

Re: Info Request
 

I overstayed a little over 4 years and was told if I ever would leave the country I would be subject to a ban that could be from anywhere between 3 and 10 years. My lawyer told me to never leave the country.
In fact when I had my interview yesterday, the officer asked me very nonchalant if I ever left the country while being here.....

Re: Info Request
 

I was told the same thing a long time ago, that he shouldn't leave. We were told there was no waiver required because the marriage is to USC. But then this guy is changing the whole thing with his "I thinks...".

Re: Info Request
 

I can't begin to explain what your counsel meant, because I don't know in what context these suggestions were offered. But, I can speculate. Maybe he was informing you that in the case of a lengthy overstay, which would trigger a bar, the recommendation is not to leave until PR is acquired. As for a waiver, the only one I can think of is if he leaves the country and is therefore inadmissible and subject to a 3 or 10 year bar, there might be a waiver (hardship) which could be requested.

Re: Info Request
 

I just posted a quick thing trying to help somebody else but also had a little chat with this attorney on his cell. He asked me to calm down ARRRRGHH! Then he said the following: A 20 years overstay can is no problem upon marriage to USC, that's not the issue, the law says that and there's no waiver required.

Then he said that the waiver would be for "undocumented entry" if they "mistake" intent with misrepresentation. They said that intent alone wouldn't cause a problem because of a board precedent.

That's a whole bunch or legal terms for me, I don't know what it means or if it even makes sense.

Re: Info Request
 

Sounds he is blowing smoke in your eyes, I would retain a lawyer that is from AILA. Good luck...

Re: Info Request
 

Actually I thought this guy was for reals, a friend of mine told me about him when I commented on my frustration and dispair.
Someone please tell me, was my attorney right or not? If he's lying to me I need to fire him quickly before he damages our petition.

Re: Info Request
 

If I were you, I'd make an appointment with a second immigration attorney. At your meeting, or on the phone, throw around some of these phrases and see if he/she understands what you mean. If he/she does not, then don't hire that one. If he/she does, and can shed more light on it, see if the new one will represent you.

Very few of the folks on here are immigration attorneys (I certainly am not), and we can't say whether your attorney is right or wrong in your case. Only an attorney would know.

Best Wishes,
Rene

Re: Info Request
 

Well, I'd say the attorney is covering all possibilities and being precautious ~ but frankly I would not have thought that this case would appear to be so precarious, unless there is more to it than meets the eye. The only thing I can think of is that perhaps he believes there is a possibility that if it were determined that your spouse did have immigrant intent, then the failure to disclose could be tantamount to material misrepresentation and under Section 212, INA §212(a)(6)(C)(i), an alien who willfully misrepresents a material fact, seeks to secure a visa, or entry into the United States or other benefit provided under the INA is excludable. A material fact, which may have otherwise rendered the alien excludable or shut off a line of inquiry which may have resulted in exclusion.

But I'm guessing. :)

Re: Info Request
 

I told him to paint me the worst scenario possible under any circumstance. Guess he did then... I feel bad now.
We've always been honest with everybody and the truth is, a couple days before the wedding I didn't even know I was getting married myself! Nobody did, it was something that happened after some series of events that made us do what we did.

There was no intent and the attorney did say that this "easy to obtain" waiver would be required if they make a mistake and think of misrepresentation. He also told us that the way he sees it, there's no misrepresentation whatsoever, just an act based on impulse.

Just wanted to cover all my bases with him I guess. Is that waiver really easy to obtain anyways? I'm asking because you never know what to expect from these people.

Re: Info Request
 

For instance, he was realistic when I asked him about the age gap (I'm almost 10 years older than him). He said that an application can not be rendered as fraudulent on age gaps alone. He noted that maybe more questions would be asked or maybe more detailed questions. He also said not to worry about it, he said that my petition will be approved (I-130) if I send in proof of USC and fill the forms out correctly. He said the "age" thing for instance or the "intent" issue will only come up at the AOS interview, if they come up at all.

Re: Info Request
 

Thanks so much to all who are posting on this issue, your help and advice is greately appreciated!

Re: Info Request
 

Well... d'uh! And you wonder why you're becoming more agitated about this?

You're bordering on obsessed now, for something which I and others have indicated is largely a non-issue. You are creating imagined scenarios which are hurting your objectivity. You see this as a major stumbling block before you've even done anything about it!

We don't know whether or not you should trust your lawyer - we don't know you, we don't know your lawyer, we don't know the intricacies of your case and, for the most part, we are just lay persons freely giving out answers based on our experiences. Our experiences are not necessarily your experiences!

Oh, when posting, it'd help a bit if you quote some of the message to which you're responding... it's makes it a lot easier to follow the conversation.

Ian

Re: Info Request
 

There is a waiver for an overstay, but this would apply if your Spouse was OUTSIDE the USA.

I have never heard of a waiver for the situation you describe, but then I can not see why it would be needed, he is here.

Re: Info Request
 

A little background, my attorney knows mostly what I've mentioned here, there's not much to the case other than the fact that he came over several times to visit me, the overstay and the age difference. You can read about it in the initial post that started this chain.

Regarding the age difference the attorney said that he don't see a problem, he said that maybe it will cause a little more questioning and other related actions during the interview but that was that. He said they can't deny the I-130 and therefore the right to the interview based only unpon age gaps.

For the overstay he said also not to worry about it, he said this is not up to inspectors but it's the law sice he's remained here without leaving after the wedding to USC.

The famous waiver I brought up is for inadmissibility based on "undocumented enrty" that would apply just in case the USCIS get's obsessed with intent and want to make a finding on missrepresentation. We've been honest with everybody, never lied, so he said that shouldn't be a problem, it's a just an ace in the hole.

I've taken a few days off from work to finally get this thing started, we can't wait any longer. I've been played before (didn't wait 5 years for the sake of it) and I would appreciate some advice that can tell me if he's being honest with me. It's not only money, but having to disclose your personal life to lots of people every week without any results is very stressing.

Re: Info Request
 

There is no such waiver, you can not adjust in the US if you are EWI, you have to leave and then apply for the waiver. I-601 if you want to look it up.

Re: Info Request
 

According to this guy, the "undocumented entry" applies to situations when people enter with a false visa, when they lie to any questions upon inspections and when they try to enter without a visa. Funny, but it doesn't apply to border jumpers.

Now, like I said, I wanted the worst case for us, and he said they could have a stroke and create a mess (we laughed). Then he said that if they really wanted to get hard about intent they could use this "undocumented entry" to manufacture a missrepresentation finding (lying upon inspection) since intent alone is not grounds for denial based on a recent "board" precedent. Hence the need for the waiver. He said that the waiver was a formalily available only to relatives of USC and gets approved with ease.

Does this sound right?

Re: Info Request
 

"undocumented entry" or "entering without inspection" is different than "entering legally with intent to marry and remain to adjust status".

Rene