Leyther

Like I said, I am just a layman-- but the way that I read this is that *intent* alone should not be the basis to deny an AOS of an immediate relative.

Others here will chime in, I am sure-- but I would contact an AILA approved attorney.

discoviking

Perhaps, but the thing is though, that the law and the interpretation of it is not static. New cases and new rulings happen, old rulings are overturned, and precedents change. This is why at the moment, the practice on AOS from VWP is different dependent on which circuit you file in. This is also why professional legal opinions is advised, and why good legal representation is not cheap.

Leyther

Exactly, I don't disagree (I agree whole heartily) and why I didn't proclaim to be a legal professional. I simply offered a case and asked for opinions from those offering so called expert advise.

THe reality is, no one is here qualified--- seek an attorney to handle your case.

cmc87

Check out the fourth point -

http://www.avvo.com/legal-guides/ugc...nceived-intent

katiekat

If I'm correct, and I freely admit that I may not be, I think the most important thing for those attempting to adjust status from VWP to PR to remember is:

If you're denied you have NO recourse. You're deported, banned, and you get to deal with it.

It's a huge risk that you're undertaking and if you're up for it then hey, go for it.

discoviking

That was posted 2 years ago. This is what immigration attorney Laurel Scott has to say about immigration law in general:

" Please note that immigration law and procedure change frequently, often without notice. Information that is accurate one day may be outdated the next. The older the information, the less likely it is to still be accurate."

http://www.scottimmigration.net/chat/TranscriptArchive

Draw your own conclusions.

ian-mstm

At my best I'm usually quite cynical... but I'm not sure about what you've written - even for someone who attempts to adjust from the VWP.

Removal from the US is pretty much a certainty and having to deal with the consequences - well, that's a given! However, someone who submits an AOS package is allowed to remain in the US under "color of law" until such time as the adjustment is adjudicated. If it's denied, it's unclear whether or not the time spent in the US is considered overstay or not. I've been following this forum and its antecedent for 14 years and I still don't know the answer to that one. On the assumption that the AOS package is accepted (which is quite different from simply being filed) before the VWP's 90 days are up, then there is likely no overstay. No overstay = no ban. Even so, someone can overstay up to 180 days past the end of those 90 days and still not be subject to a ban. Of course, they can never use the VWP again even after a 1 hour overstay... but that's another issue. A 3-year ban kicks in automatically if the overstay reaches day 181.

What has never been satisfactorily established, is whether or not the time spent waiting for adjudication of the AOS package is considered an overstay if the AOS is denied. My layman's guess would be that it is not considered an overstay since the person is allowed to remain in the US until the package is adjudicated.

IMO, this is probably the most important reason to seek the advice of competent legal counsel in this matter.

Ian

cmc87

It's also stated in 9 Foreign Affairs Manual (FAM) 40.63, Note 4.7 .


www.state.gov/documents/organization/87011.pdf

9 FAM 40.63 N4.7-4 After 60 Days

When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)(C)(i) inadmissibility.

I'm not sure if any of what I'm posting is even hugely relevant, but it has a lot of info on adjusting from the visa waiver.






http://www.uscis.gov/ilink/docView/A...tml#0-0-0-1843

This one has useful info on what is considered lawful presence, and how it is accrued (or not accrued).

katiekat

So then the ones who actually would be definitely banned are those who filed the AOS after over-staying on the VWP?


CMC, I suppose this whole argument is why it all depends on your risk tolerance. In the end you can go into your interview armed with all the proof you want and all the legal decisions you want, but if they decide for whatever reason that you had intent then they can refuse your AOS and you have no recourse. As far as I'm aware you can't appeal, you have no way of having your case looked at a second time.

cmc87

From the document I posted above -

Example 1
An alien’s status becomes unlawful, and the alien begins to accrue unlawful presence on April 1, 2004. On September 1, 2004 (150 days after April 1, 2004), the alien files an adjustment of status application. The alien does not accrue unlawful presence while the adjustment application is pending. See AFM chapter 40.9.2(b)(3)(A) .
The adjustment application is denied on October 15, 2006 (administratively final decision). After the denial, the alien continues to remain in the United States unlawfully; the accrual of unlawful presence resumes on October 16, 2006, a day after the application is denied.
The alien leaves the United States on January 1, 2007. At that time, the individual had accrued unlawful presence from April 1, 2004 to September 1, 2004, and again from October 16, 2006 to January 1, 2007. The total period of unlawful presence time accrued during this single unlawful stay exceeds 180 days.
By departing the United States on January 1, 2007, the alien triggered the three-year bar and is inadmissible under section 212(a)(9)(B)(i)(I) of the Act.

Example 2
An alien’s status becomes unlawful, and the alien begins to accrue unlawful presence on April 1, 2004. On September 1, 2004, the alien leaves the United States. The alien returns unlawfully on October 15, 2006. He departs the United States again on January 1, 2007.
Although the alien has been unlawfully present in the United States for more than 180 days in the aggregate, the unlawful presence was accrued during two (2) separate stays in the United States; during each of these stays, the alien accrued less than 180 days of unlawful presence. Thus, the alien is not inadmissible under section 212(a)(9)(B)(i)(I) of the Act.

cmc87

I do agree with this. We were willing to take the risk because my husband already has his UK spouse visa, so we have that to fall back on. The OP also has a backup plan, so it makes the risk more bearable.

md95065

"They" do not have to "prove intent" - all "they" have to do is to assert that you did have the intent - the burden is then on you to prove that you did not ...

cmc87

From what I understand, if you apply before 30 days, USCIS will assume you have intent and it will be up to you to prove otherwise. Between 30 and 60 days, they will not automatically assume, but they will look for evidence of intent.
After 60 days, they will not consider it entry with intent, unless there is actual evidence to the contrary.

Obviously you will always need to try to prove you have no intent. But this is what I have found in my research.

My point is that the OP should probably take this into account when applying, considering that it's in the officer guidelines for adjudicating cases.

ian-mstm

I believe this is referred to as the 30/60 myth - which is all it is... a myth. That it's printed in the FAM is simply a white elephant when it comes to the presumption of intent when adjudicating.

Ian

ian-mstm

That's not what I wrote, and I was very specific in what I wrote... so I'm not sure how you came to this conclusion.


Correct.


Correct. You sign away your right to appeal when you enter on the VWP.

Ian